Lords Sitting of 7 July 1980

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Oxford.

ANTI-POVERTY: EUROPEAN PROGRAMME
Lord BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what decision was reached by the Council of Ministers on 9th June on the funding of a European anti-poverty programme.
Lord CULLEN of ASHBOURNE: My Lords, at its meeting on 9th June, the Council deferred a decision on the European Commission's proposal for an interim extension of the anti-poverty programme until the next Labour and Social Affairs Council meeting in November. Most member states, including the United Kingdom, indicated that they would be in favour of an interim programme of the kind suggested by the Italian Presidency of the Council as an alternative to the Commission's proposal; but one remained opposed to any further programme in this area until the Commission had produced a report on the current activities, as it is required to do by a Council decision taken in 1977.
Lord BROCKWAY: My Lords, while thanking the Minister and welcoming the decision to defer, may I ask whether it is not the case that the wide range in the European Parliament, extending from the British Conservatives to the Communists, supported the funding of this proposal? Would not its deferment mean that we should lose pilot projects in Wolverhampton, Glasgow, London and Wales? Did our representatives support the Italian proposal for the modest £3 million to be spent on these projects over the next two or three years while devaluation was being considered?
Lord CULLEN of ASHBOURNE: Yes, my Lords, but there is some doubt about what would happen to the projects the noble Lord referred to if their funding from the Council ceased. It is probable that those projects funded by the Home Office, which are now 50/50 between the Council and the Home Office, would be continued by the Home Office. Four different projects are covered by the Home Office; two by the Scottish Development Department; two by Northern Ireland and one by the Department of Trade in Wolverhampton.
Lord BROCKWAY: May I ask the Minister whether it would not immensely extend the prestige of the European Community if it did something to deal with the poverty problem in Europe which an investigation has shown has similar causes in practically all the European countries?
Lord CULLEN of ASHBOURNE: Yes, my Lords, but I think it is true to say that many of the projects started by the Council have been directed more towards helping social casualties than the actual provision of cash to deal with poverty in cash terms.

TRAFFIC LIGHTS: THE RED SIGNAL
2.40 p.m.
Viscount MOUNTGARRET: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether provision could be made to allow motorists to take a left turn at all traffic lights showing red but giving priority to pedestrians and traffic from the right but not so as to contravene any sign showing a one-way system.
Lord MOWBRAY and STOURTON: My Lords, the Government are not, for road safety reasons, contemplating this. In the United Kingdom a red light has always meant "Stop" for all drivers, whether they propose to turn or go ahead, unless a green arrow signal points to a permitted direction of travel. To permit

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a left turn against a red signal could devalue the message and threaten road safety. The rule about the red light signal which I have mentioned applies also on the Continent, and indeed the Vienna Convention on Traffic Signs and Signals, to which we conform, does not permit movements against red signals in the absence of positive arrows.
Viscount MOUNTGARRET: My Lords, I thank my noble friend for that reply; but is he not aware that the practice I mention is widely used in America and I believe also in many other countries? Would he not agree that to produce a few more green arrows would be advantageous? Also, would he not agree that to implement such provisions would be of great assistance in easing congested traffic flow?
Lord MOWBRAY and STOURTON: My Lords, the North American experience in practice has been studied very carefully, but it is our view that the disadvantages in road safety would more than outweigh any possible advantages to be gained in respect of traffic flows. My noble friend has hit me on the head when he says that these things would be possible with accompanying arrows. That is possible now: but in this country, we try where possible to have round roundabouts at junctions, which keeps the traffic flow easier.
Lord LEATHERLAND: My Lords, may I ask the noble Lord an easy question? As the economy is now showing a red light, will the Government take a left turn in its policy?
Lord MOWBRAY and STOURTON: My Lords, we are going full steam ahead on a green light.

OLYMPIC TEAM: LOCAL AUTHORITY SUBSIDY
2.43 p.m.
The Earl of KIMBERLEY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government
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what action they are taking with local authorities who are giving cash support to the British Olympic Association from the local rates.
The PARLIAMENTARY UNDER-SECRETARY of STATE, DEPARTMENT of the ENVIRONMENT(Lord Bellwin): My Lords, local authorities have certain powers to undertake expenditure of this kind, but before doing so they must satisfy themselves that they are acting within their powers. The Government have no power to intervene in these particular decisions; nor is there specific action for us to take against the authorities concerned. I hope that local electors and ratepayers who disagree with what their elected local authorities are doing will continue to make their feelings known to them.
The Earl of KIMBERLEY: My Lords, I thank my noble friend for that Answer. In view of Her Majesty's Government's efforts to cut public expenditure and the fact that most of these councils have increased their rates this year, would he not agree that the money might better have been employed on buying some new school books? Secondly—and what is probably more important—could my noble friend comment on the fact that payments of this kind at the moment are ultra vires and, therefore, would members and officers of these local authorities be liable to a surcharge?
Lord BELLWIN: My Lords, it is for local authorities themselves to decide their own priorities. But the electorate should be left in no doubt that authorities which give cash to support the Olympic team are giving that preference over other demands on resources. Some may feel that this is a strange priority, when those authorities complain about difficulties which they claim to be having in reducing their expenditure. As to the second part of the question, I cannot comment on an issue which is currently before the courts. However, it is surely right to say that it is for each local authority in the first instance to satisfy itself on the legality of its actions.
Lord BRUCE of DONINGTON: My Lords, will the noble Lord bear in mind that the imports from the USSR into the United Kingdom, and the exports to the

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USSR from the United Kingdom, have gone up significantly in comparison with a similar period last year?
Lord BELLWIN: My Lords, with respect, I feel that that has nothing to do with the Question.
Lord ELLENBOROUGH: My Lords, is my noble friend aware that national ratepayers' associations up and down the country, and certainly one with which I am closely connected, utterly condemn this action and consider, as a matter of principle, that it is utterly wrong for councils to use money for this purpose, because it does not directly assist the ratepayers; indeed, to the contrary it means an added burden to the rates?
Lord BELLWIN: Yes, my Lords; I am aware of the feelings expressed by my noble friend and there are many who would concur with them.
Lord PARGITER: My Lords, would the noble Lord not agree that any ratepayer who feels aggrieved has power to ask the district auditor to investigate these payments?
Lord BELLWIN: Yes, of course, my Lords.
Lord GRIDLEY: My Lords, may I ask my noble friend this question on policy: Would he inform the House what right is possessed politically for Labour-controlled boroughs or councils to use ratepayers' money to thwart—which is what it amounts to—a facet of the foreign policy of Her Majesty's Government? Have they any remit from central Government that they may act in this manner?
Lord BELLWIN: My Lords, there is in fact a power under Section 137 of the Local Government Act 1972, which enables local authorities to incur expenditure up to the product of a 2p rate in any one year on purposes which are
"in the interests of their area or any part of it or all or some of its inhabitants,"
or on contributions to certain funds. Whether this applies to Olympic donations is a matter for the local authority to consider in each particular case.
Lord SHINWELL: My Lords, may I ask the noble Lord the Minister a question which, although it may not be directly related to the original Question, has a bearing on it, on a subject which I am sure is concerning many Members of your Lordships' House and the public? If any of our athletes who have decided to go to Moscow are maltreated in any fashion, can they claim any protection from our Embassy people in Moscow?
Lord BELLWIN: With great respect, my Lords, I fear that that is very far from the Question. I should have thought that any kind of assistance, to which the noble Lord refers, is that to which any person at any time going to another country would be entitled to expect.

AFGHANISTAN: RED CROSS RECOGNITION
2.47 p.m.
Lord GRIDLEY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows
To ask Her Majesty's Government what steps have been taken to secure the recognition of the International Red Cross in Afghanistan, and the return of their representatives to that country.
Lord TREFGARNE: My Lords, previous Governments in Afghanistan have recognised the status of the International Red Cross and the present régime have not taken any steps to alter the situation. It is for the International Red Cross to decide whether delegates should return to Afghanistan.
Lord GRIDLEY: My Lords, may I ask my noble friend this question? Can he inform your Lordships what action has been taken by Her Majesty's Government, in concert with other Governments or countries, to secure the return of the International Red Cross to Afghanistan as soon as possible? My question to him directly is to ask him what action has been taken in international forums to secure the return of the International Red Cross representatives, who do a magnificent job of work and whose

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presence in the country must be very badly needed at the present moment.
Lord TREFGARNE: My Lords, as I said in my original Answer, it is for the International Red Cross themselves to decide when they should return to Afghanistan. I think that my noble friend does the International Red Cross no service if he suggests that they are subject to pressure by this Government or any other.
Lord GRIDLEY: My Lords, I am not asking for any pressure to be put upon the International Red Cross. The International Red Cross have to be recognised, and, apparently, the only way that they can be recognised by the authorities in Afghanistan is through the force of international opinion.
Lord TREFGARNE: My Lords, again referring to the original Answer which I gave to my noble friend, I indicated that previous Governments in Afghanistan have recognised the international status of the IRC, and no change has occurred, so far as we know, to that position.
Baroness HYLTON-FOSTER: My Lords, would the noble Lord agree that any publicity or pressure at the present moment would be likely only to hinder the International Committee of the Red Cross in the very delicate negotiations which are taking place?
Lord TREFGARNE: That again, my Lords, is an internal matter for the International Red Cross, but I am sure that the noble Baroness is right.
Lord GORONWY-ROBERTS: My Lords, while appreciating most profoundly the honourable concern of the noble Lord, Lord Gridley, may I ask whether the Minister would agree that, unless and until the international authority of the Red Cross approaches the Government with a view to making representations, whether jointly or diplomatically, to the present Afghan Government, it is not for the Government to move?
Lord TREFGARNE: My Lords, that is certainly correct, but we hope that the
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International Red Cross will be able to return to Afghanistan as soon as possible.

BUSINESS
Lord DENHAM: My Lords, with the leave of the House, at a convenient moment after 3.30 my noble friend the Leader of the House will repeat a Statement on the Top Salaries Review Body, Reports Nos. 14 and 15.
It may also be for the convenience of your Lordships if I announce that dinner will be available this evening at the usual time.
The Report stage of the Employment Bill will be adjourned at approximately 7 o'clock for about an hour. The Euro-control (Immunities and Privileges) (Amendment) Order and the International Organisations (Immunities and Privileges) Miscellaneous Provisions Order will be taken during the adjournment.

MAGISTRATES' COURTS BILL [H.L.]
2.52 p.m.
Bill read 3ª.
Schedule 7 [Consequential amendments]:
The LORD CHANCELLOR The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone) moved Amendments Nos. 1 and 2:
Page 102, line 22, after ("rules"") insert ("in the second place where those words occur")
Page 113, line 8, leave out paragraph 101 and insert—
("101. In section 25 of the Attachment of Earnings Act 1971—

(a) in subsection (1), in the definition of "rules of court", for "section 15 of the Peace Act 1949" substitute "section 144 of the Magistrates' Courts Act 1980"; and

(b) in subsection (6) for "Part III of the Magistrates' Courts Act 1952" substitute" Part III of the Magistrates' Courts Act 1980".").

The noble and learned Lord said: My Lords, there are two amendments standing in my name, and, with the permission of the House, I shall move both of them together. They are both minor drafting amendments to Schedule 7 to the Bill, which deals with consequential amend-

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ments to other legislation. The first corrects an oversight in a reference to Section 33(4) of the Criminal Justice Act 1925, where the relevant words occur twice. The amendment makes it clear that the reference to the present Bill is inserted after the second occurrence of the words.
The second amendment which I am proposing updates the Attachment of Earnings Act 1971 by substituting references to the present Bill for references to earlier legislation. I beg to move both the amendments standing in my name on the Marshalled List.
On Question, amendments agreed to.
Bill passed, and sent to the Commons.

HIGHWAYS BILL [H.L.]
Bill read 3ª, and passed, and sent to the Commons.

EMPLOYMENT BILL
2.54 p.m.
Report received.
Clause 4 [Unreasonable exclusion or expulsion from trade union]:
Lord ELWYN-JONES Lord ELWYN-JONES moved Amendment No. 1:
Page 6, line 8, after first ("or") insert ("with the leave of the Employment Appeal Tribunal")
The noble and learned Lord said: My Lords, the purpose of this amendment is to limit the additional burden which will fall on the Employment Appeal Tribunal as a result of the Government's insistence that an appeal shall lie to the Employmert Appeal Tribunal on questions both of fact and of law arising from any decision of an industrial tribunal under subsection (8) of Clause 4, which deals with exclusions or expulsions from a trade union. The amendment which I move proposes that an appeal on questions of fact shall be allowed only with the leave of the Employment Appeal Tribunal itself.
It is very rare in employment law to find an appeal on questions of fact going from an industrial tribunal to the EAT. Industrial tribunals are well qualified to decide questions of fact, consisting as
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they do of legal chairmen, with two laymen with considerable industrial experience on the employers' side and on the employees' side of industry. Industrial tribunals have proved themselves to be well capable of fulfilling what have been described as the functions of an industrial jury. That is how the court of appeal has described it, and so have other judicial bodies.
Industrial tribunals have had massive experience as judges of fact. In the course of 1979 they adjudicated as many as 35,253 cases of unfair dismissal. As I ventured to say during the Committee stage of the Bill, theirs is an important and well-tested jurisdiction. Indeed, at the Committee stage we on this side proposed that there should be no appeal from an industrial tribunal to the EAT on questions of fact, but in a Division the Committee did not accept our view.
I venture to submit that we need to reduce the amount of litigation which is taking place and not to multiply it. I have heard the noble and learned Lord the Lord Chancellor say that on many occasions about many jurisdictions. Recently there have been many judicial pronouncements deprecating the multiplicity of appeals in employment law cases. In the case of Hollister v. The National Farmers Union, the noble and learned Lord, Lord Denning, said:
"It is not right that points of fact should be dressed up as points of law so as to encourage appeals. It is not right to go through the reasoning of these tribunals with a toothcomb to see if some error can be found here or there—to see if one can find some little cryptic sentence".
While that observation is addressed most directly to the vice of dressing up points of fact as questions of law, it indicates a discouragement of appeals on the part of the appeal court itself.
It is important to recollect what an appeal on a question of fact would involve. It would mean a rehearing of all the facts of the case. Parties, witnesses, counsel, solicitors will all have to come to London, unless it is a Scottish case—I was reproached for having overlooked that important fact during the Committee stage—for the hearing of the appeal. Whereas there are 70 industrial tribunal centres situated around the country at locations convenient to the places in which most industrial relations disputes

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arise, it is rare indeed that the appeal tribunal sits in the provinces. So here there is considerable potential dislocation and expense involved. Attendances of witnesses from a distant factory or workplace which may be the locus of the dispute could well cause a good deal of disruption in the output of the place of work. It could well be the case that some of the witnesses might hold key positions in the workplace, so this process could involve a great deal of difficulty for the production side of industry.
Secondly, the time factor is of some importance. Appeals under this branch of industrial law will be of the most urgent character, since they will often be accompanied by strike action. If they were encouraged by the process of a right to appeal on fact without demur, by allowing appeals without leave, pressure would develop to delay further pressing dismissal cases which would be awaiting hearing before the employment appeal tribunal, and the system of appeals and the function of the tribunal could well become clogged. Between March of 1976 and March of 1977 883 cases were appealed to the Employment Appeal Tribunal, so your Lordships will see that it is already a very busy appellate tribunal.
Another factor which should be borne in mind is that appeals will be a very costly business. As I have said, it is a rehearing; all the parties and lawyers and everyone else concerned will have to make a second appearance and, as at present at any rate, the muliiple costs would be irrecoverable. Another factor which is of some importance is that the cases in this part of the law are likely to be the focal point of a great deal of publicity. They will be held in a charged and contentious atmosphere, and there could well be a temptation to conduct appeals for propaganda purposes when the merit involved in the appeal on fact could be very small, or indeed non-existent; and our submission on this side of the House is that a sieve to prevent unmeritorious cases being pushed through to appeal is an essential and valuable safeguard.
After all, to impose a condition requiring an appellant to obtain leave to appeal to an appellate body from the appellate body itself is not a novel requirement
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in the administration of justice. It exists, for instance, in several spheres of the work of the Court of Appeal itself. The reason for such provisions restricting the right of appeal by requiring the consent of the appellate body before the appeal can be brought, I submit are obvious. It is clearly desirable not to clutter up the court system with what may well be, on examination on leave to appeal, quite unmeritorious appeals with no substance. Already, as I have ventured to say, the appellate system is subject to as much strain as it can reasonably take. The requirement which the amendment proposes of obtaining leave on questions of fact from the EAT could well result in hopeless cases being stopped before the expense, the disruption and delay of a full rehearing of the case are incurred. I submit therefore that from the point of view of the administration of this jurisdiction this is a valuable sieve, and it will surprise me greatly if this amendment is rejected. I beg to move.
Lord WIGODER: My Lords, would the noble and learned Lord be kind enough to help me before he sits down? Are there precedents for giving an appellate tribunal a discretion to grant leave to appeal on questions of fact?
Lord ELWYN-JONES: My Lords, in the work of the Court of Appeal there are various areas where the authority of the court of appeal is itself required. The difficulty that we are in here is that there is no appeal on fact from industrial tribunals at the moment. This is an innovation. I think we were fortunate in receiving the support of the Liberal Benches when we sought to exclude appeals on fact, so there is not much experience in deciding this matter; but certainly it is within the competence of the Court of Appeal to intervene.
The LORD CHANCELLOR: My Lords, I did not put the Question before, because I think that theoretically the noble and learned Lord had not resumed his seat. The Question is, that the said amendment be agreed to?
The LORD ADVOCATE (Lord Mackay of Clashfern): My Lords, as the noble and learned Lord has pointed out, in Committee there was a question of

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whether or not there should be an appeal on fact to the Employment Appeal Tribunal in the particular cases with which this amendment is concerned. In Committee the view was taken by a considerable majority that appeals on fact in this very limited and important area should be allowed. In our view, the amendment which now seeks to impose as a condition that the leave of the Employment Appeal Tribunal should be obtained before an appeal proceeds on a matter of fact is an unnecessary complication. In our view, in relation to a matter of fact it is better, if there is to be an appeal on fact, that the matter should be open to the Employment Appeal Tribunal to apply its own discretion in deciding how the procedure is to go on, and it should not be a requirement that leave should be required.
As the noble and learned Lord pointed out, some ingenuity has been expended upon dressing up points of fact in order that they may look like points of law, and it would be most unfortunate if there should be a particular requirement of this kind, which would just add to that very exercise. I should like to support the view which I think was implicit in the question raised by the noble Lord, Lord Wigoder, about the difficulty of a requirement of leave in relation to matters of fact. I believe there may be precedents in other spheres but I think that the existence of an appeal in fact makes it difficult adequately to apply such a requirement as this.
I should perhaps just add, in case it was suggested that we were not appreciative of the work of the industrial tribunals, that there is no intention whatsoever to denigrate them in any way. The appeals in relation to which this clause arises are very important, sensitive cases in which it is thought that a second appeal on fact is appropriate. I would invite your Lordships not to agree with this amendment.
Lord ELWYN-JONES: My Lords, I am surprised and disappointed by that answer. If the clause becomes law as it stands, there will be no opportunity by the employment appeal tribunal to have, so to speak, a preliminary view of what may be a hopeless matter; so they will have to listen to what may be days of evidence—or at any rate a considerable
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expenditure of time on evidence—in a hopeless cause. I should have thought that the Employment Appeal Tribunal itself would be pleased to be given this opportunity of a preliminary sieve before the whole business of a retrial with, as I have said, potentially several busy witnesses from industry being called. It would be valuable to have this opportunity. The Bill as it stands gives no opportunity at all, and I invite the noble and learned Lord the Lord Advocate to think again on this matter.
If I may say so, it really is time we had some response from the other side of the House to these practical suggestions, which are not of a wrecking character but of a constructive and helpful character, and at the beginning of what is obviously going to be a highly disputative Report stage the noble and learned Lord the Lord Advocate might have made the ground a little easier and the atmosphere a little sweeter if this very sensible provision was complied with.
3.9 p.m.
The LORD CHANCELLOR: My Lords, I wonder whether I may say a word to the noble and learned Lord. I hope he will not take offence at all, but I thought of one or two things when I heard the debate in Committee and I have been reflecting upon this matter in consultation with others. The difficulty is this: both my honourable friend in the Lower House and the noble and learned Lord who has spoken think it is necessarily the case that in appeals on fact all the witnesses must come again, so I am perhaps in a minority of one if I question that dogma; because the noble and learned Lord will know even better than I that in every High Court case and in most county court cases there is an appeal on fact brought by way of a rehearing, and the witnesses do not come. I promise the noble and learned Lord that I will let the appeal tribunal themselves know what he has said before Third Reading. I do not think he will get a different answer.
In the meantime, I should like him to carry away two thoughts of mine, if he will be so good. The first is that, of course, both sides can appeal. One must not necessarily assume that the party which will appeal is that whose case is more attractive to one of the two disputants

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in this Bill rather than another. The second thought is that if you have got a tribunal of both fact and law deciding the case, and then you can appeal from it as to fact by leave and as to law by right, you are probably going to dress up more points of law as points of fact that way than any other; and even if you do not the position will be reached, of course, that you try to get the appeal on fact and then have a second bite on law, because you will be able to do it by right. It may be that the Government's judgment in this matter is the more practical one. I promise that what the noble and learned Lord has said will be conveyed, by my department or that of my right honourable friend, to members of the tribunal, but I do not think we will be able to help him very much at this stage any further.
Lord ELWYN-JONES: My Lords, with the leave of the House, may I make one observation in reply to that clear willingness of the noble and learned Lord to help up to a somewhat limited point, if he will allow me to say so. We are in a difficult situation here. If the Bill becomes law, there will, of course, be no appeal on grounds of fact in unfair dismissal cases. That in itself is going to create a sense of discrimination against the employee sacked by his employer. However, perhaps I am entering now into matters we have traversed on the previous occasion. But it is a point of substance and an important point, psychologically at any rate. I do not know how far the noble and learned Lord the Lord Chancellor is willing to go in endeavouring to assuage my anxiety about this matter, which I do think, if I may say so without being pompous, is in the interests of the administration of these tribunals. Will he be willing at any rate to consider this matter between now and the next stage of the Bill? It is an important matter. It is not a matter of party controversy, save to the extent that it brings in the discrimination as between unfair dismissal cases and this. If the noble and learned Lord the Lord Advocate, on that degree of indication from the Woolsack, is prepared to say that the Government will consider this, I will gladly ask for leave to withdraw the amendment.
The LORD CHANCELLOR: My Lords, one of the problems about being
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on Report is that one is divorced from one's friends by a great gulf, rather like Dives and Lazarus, so I can only by leave of the House say this. I will report what the noble and learned Lord has said. My judgment was against him on Committee and is against him now, but it is not fair to turn these things down when obviously the noble and learned Lord has a very firm view. I must tell him, not secretly but publicly, that I was aware of the anomaly to which he refers, that in 35,000 cases of wrongful dismissal there is an appeal on law only. I am very conscious of that, but I do put this thought in his mind, if I may. He mentioned it in Committee, but he did not mention it in his earlier observations. I do happen to know that there have been occasions when the Employment Appeal Tribunal has found itself rather constrained by the limitation in those cases. I doubt if I could take delivery of appeals from 35,000 cases. I rather suspect that this jurisprudence, which we want to work its way up into a coherent body of law, will probably yield less than 100. I doubt whether I could take delivery of 35,000. If I were to start with a tabula rasa, I think perhaps I would remove the anomaly in the other direction.
Lord ELWYN-JONES: My Lords, is there merely to be a stone-wall silence from the Government Front Bench on this in the light of the exchanges which have taken place?
Lord MACKAY of CLASHFERN: My Lords, the Lord Chancellor's speech is very much more authoritative than anything I could say about it.
Lord ELWYN-JONES: My Lords, as I understand the implication of what has passed, it is that there will be further consideration of this matter before Third Reading and at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.15 p.m.
Lord McCARTHY Lord McCARTHY moved Amendment No. 2:
Page 6, line 20, after ("rules") insert ("other than the non-payment of a subscription owing and due to the union and payable by members or a section of members of the same class as that person").
The noble Lord said: My Lords, this is the one about lapsing, and once again we are trying to be practical and helpful. We are returning to an issue which we raised on Committee stage, where we thought we had had some assurance from the Government that they would reconsider their position. But, as the House will know, nothing has come from the Government side on this, and therefore we feel justified in pressing the case again in a slightly different way.
The House will know that we are dealing here with subsection (8)(b) of Clause 4 under which it states:
"if under the rules of a trade union any person ceases to be a member of the union on the happening of an event specified in the rules, he shall be treated as having been expelled from the union".
We have been seeking in the Committee stage to make a distinction, which is a distinction in the practical world of trade union affairs, between expulsion in that sense and lapsing. Therefore, we are trying to insert after "rules",
"other than the non-payment of a subscription owing and due to the union and payable by members or a section of members of the same class as that person".
This would have the effect of excluding the application of that subsection where the sole reason for the person ceasing to be a member of the union was that he had not continued to pay his subscription to the union.
When this issue was raised at Committee stage we had some support, not simply from this side but also most notably from the noble Earl, Lord De La Warr, on the other side, who said:
"I feel inclined to advise my noble friend …'
—that is, the Government spokesman—
"… to consider the amendment sympathetically. The case for it has been well enough argued for me simply to add that the amendment seems to be all right and should be examined by the Government".—[Official Report, 3/6/80, col. 1408.]
What we are asking the Government today is if it has been examined why has there been no movement. The noble Lord, Lord Lyell, replying for the Government said (cols. 1408/9):
"We believe there could easily be a loophole here, and, thus, a problem. It seems to me the noble Lord has found what I would call a limbo or no-man's land where somebody has ceased to be a member of a union through the nonpayment or lapsing of subscriptions … Reservations have been expressed all around the Chamber
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in particular by my noble friend Lord De La Warr, and for that reason we shall take away the amendment and consider it, with the hope of having something to submit on Report".
Yet today nothing has been submitted.
We are not suggesting that there should be in this very narrow amendment any challenge to the jurisdiction of the tribunals in relation to this Bill in respect of refusal to admit. We are not disscussing that. We are not challenging the jurisdiction of the tribunals in this amendment for all sorts of disciplinary offences, refusal to obey instructions, refusal to pay fines, electoral malpractices—any general expulsion rule of a union. We are simply saying in those cases where there is a non-payment of dues, where in the trade union world what one is discussing is lapsing, or running out, or being struck off the books. We are suggesting that at least since the time of the Bonser case the courts themselves have introduced very strict rules about the conditions under which people can be lapsed. They must only be lapsed by people authorised under the rules of the union to lapse them; they can only be lapsed in ways that take into account the requirements of natural justice; they can only be lapsed by very clearly specified rules, and if the rules are not clear and not specified then the courts will read such rules into the rule book.
So, we are not suggesting that there should not be any legal control over lapsing; we are suggesting that it is quite wrong and quite impractical and will lead to a great deal of practical difficulty if people can come to tribunals simply because—as is the case in the great majority of instances when people are struck off the books of unions—they have lapsed their subscriptions. I beg to move.
Lord ROCHESTER: My Lords, I was not one of those who, in Committee, spoke on this particular amendment. But, like the noble Earl, Lord Dc la Warr —who I see is about to take his place—I feel some sympathy for what the noble Lord, Lord McCarthy, had to say on the last occasion and I took comfort from the response of the noble Lord, Lord Lyell, at that time. I think that I see the distinction between expulsion and what the noble Lord, Lord McCarthy, called "lapsed membership". As I have said, to that extent I feel some sympathy with what the noble Lord has had to say and I

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hope that it may evoke some positive response on this occasion from the Government.
Lord LYELL: My Lords, as the noble Lord, Lord McCarthy, has pointed out, an amendment similar to this one was tabled in Committee in your Lordships' House. And, as the noble Lord, Lord McCarthy, carefully read out, it was I, in fact, who undertook to reconsider the position. I hope that the noble Lord and the House will note that the concluding comments that I made were with the hope of having something to submit on Report.
We would admit that we realise that at first sight this amendment appears very sensible and reasonable, even more so than the last amendment submitted in Committee. For instance, if any member of a club fails or ceases to pay his dues he has only himself to blame if his membership ceases. But, as your Lordships will be aware, great concern was expressed by noble Lords opposite during the Committee stage and the Government have reviewed with great care all the arguments that were made at that time and, indeed, that have come to light surrounding this particular and rather complicated matter.
However, we have reached the conclusion that the approach incorporated in the Bill is the right one and that it will not, in spite of what was spelt out at length and in detail by the noble Lord, Lord McCarthy, in practice give rise to the sort of cases which are evidently in the minds of some noble Lords opposite.
This particular amendment would have the effect that, where an individual's membership of a particular union lapsed automatically through the non-payment of his subscription—that is, without positive expulsion—there would be no right of complaint of unreasonable expulsion. For a number of reasons we believe that that would not be right.
The first relevant reason is that different unions have differing rules as to how virtually the same event is to be regarded under their own rules. For example, one union may provide for automatic lapsing of membership if subscriptions are long enough in arrears, while another union may have rules which provide that the member is liable for expulsion in exactly
864
the same circumstances. In other words, in the one case he is expelled and in the other he is merely liable to that particular state of affairs. We think that it would be anomalous that in the first case where the member is expelled there would be no jurisdiction for a tribunal to deal with an aggrieved member who felt that he had a reasonable and justified explanation for his arrears, and that he should not have been treated as no longer a member, whereas in the latter case, where he is liable, he would be able to complain of unreasonable expulsion.
The second reason—although I would not necessarily suggest that it will occur—is that it is possible that unions could avoid jurisdiction under this particular clause by exploiting mistakes which could result in the non-payment of subscriptions. Perhaps a mistake, a perfectly feasible error, in the check-off system could provide a union with an opportunity to treat someone who might be worthy of expulsion as having lapsed. That person would not be able to complain to a tribunal of unreasonable expulsion.
Finally, I would strongly emphasise that what we are talking about here is the jurisdiction of the tribunal. It does not follow that tribunals—and at this point I would remind your Lordships that they are very respected and very experienced bodies—will find explusions unreasonable where, for example, a member has deliberately refused to pay his union dues. Certainly it is more than likely that where a misunderstanding has arisen, conciliation officers, who see every application to a tribunal, will be able to resolve the issues and obviate the need for any tribunal hearing. I hope that that has been a reasonable explanation. I am afraid that I cannot necessarily commend the amendment to your Lordships.
Lord McCARTHY: My Lords, I am very disappointed with the Government's reply. With respect, as I understand it, they have given us two pseudo-reasons for rejecting the amendment. The first relates to trade union rule books. I note that the Government do not quote any trade union rule books. There are trade union rule books where people have a "trip", were they are liable to expulsion. However, if people continue not

865
to pay their subscriptions they are automatically lapsed from the union. That is exactly the same as would be the case—as the noble Lord himself said—as regards any bowls club or tennis club. So I do not see that we can base a distinction on whether some unions have trip rules and others do not.
As regards the check-off, I must say that unions do not want to expel people because they make mistakes. If they make mistakes in the check-off and people are told that mistakes have been made in the check-off, then people will be readmitted to the union. In any case, if someone were expelled from a union on the basis of a mistake in the check-off and it was said that they were "run-out", then I would say that that would not stand in the ordinary common law position.
Therefore, I do not see how either of the cases which the noble Lord has put up in ally way shifts our position. I do not want to press the amendment because we have many other amendments to come. However, we shall have to take into account the Government's attitude on this amendment, and maybe others, when we come to our amendment on the clause as a whole.
On Question, amendment negatived.
3.29 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 3:
Page 6, line 33, at end insert ("or to an agreement between the Trades Union Congress and a trade union affiliated to it or between two or more such affiliated trade unions connected with procedures established by the Trades Union Congress concerning the admission or expulsion of members of such trade unions.").
The noble Lord said: My Lords, I beg to move Amendment No. 3. This is an amendment of a much more modest character than some that were put forward by my noble friend and myself in Committee. It relates to that part of Clause 4 dealing with the new jurisdiction of the tribunals to determine what is and what is not a lawful expulsion or exclusion from a trade union. It deals with Clause 4(11), which provides that:
"Any provision in an agreement shall be void in so far as it purports to exclude or limit the operation of, or to preclude any person from presenting a complaint or making an application under, this section",
with an exception in terms of certain conciliation proceedings. The amendment would wish to add to that exception agreements between the Trades Union Congress and its affiliated unions and between affiliated unions relating to TUC procedures—especially, of course, the so-called "Bridlington Procedure", although today it is better known as the Trades Union Congress Disputes, Principles and Procedures as revised at the last congress.
Although this side of your Lordships' House received no assurances in Committee, nevertheless what was said by noble Ministers in Committee gave us some hope that the matter would be considered again on this very modest basis: that at least those arrangements of the Trades Union Congress should not start off at the starting line under this clause as being void in law, in whole or in part. I say "in whole or in part" because at one stage in Committee, on 3rd June, I was quite rightly corrected by the noble and learned Lord the Lord Advocate. He reminded me that provisions in agreements are to be void in so far as they limit the operation of Clause 4. The noble Lord also said, if I may take merely two statements from 3rd June, at columns 1379 to 1380, speaking of the Bridlington procedures:
"… I give the unreserved assurance that there is no intention whatsoever in this Bill on the part of the Government to undermine those procedures".
He said a little later:
"A tribunal, under the provisions of Clause 3"—
Clause 3 as it was then; now Clause 4—
"and particularly Clause 3(5), will have to determine whether, in all the relevant circumstances, a trade union has acted reasonably in excluding or expelling a person. The tribunal, therefore, will of course include in its consideration the question whether the action was taken in pursuit of the Bridlington procedures or similar arrangements".—[Official Report, 3/6/80; col. 1379, 1380.]
I make one point on that quotation, and that is that of course if the procedures of the Trades Union Congress are void, then the tribunal will not include within its consideration the question whether what happened accorded with those arrangements. It is partly to avoid the argument on that matter that this amendment is put forward. How would it work in practice? Bridlington works in practice by way, first, of a union seeing whether the principles have been

867
observed. Let me take a very simple case where a union, perhaps by mistake or inadvertence, has poached a member from another union. A complaint may be made, and if, after the various conciliation procedures of the Trades Union Congress have been gone through, no agreement can be found, then the matter may he referred by the general secretary to a disputes committee of experienced trade unionists with no direct interest in the matter for consideration under the regulations; and under the regulations the disputes committee may make an award.
That award, under the rules of the Trades Union Congress, which are contractual, is binding upon each affiliated union. In most of the affiliated unions' rule books there is what is called the model rule, which gives them power to exclude a member if that is necessary to effectuate the decision or award of a disputes committee set up by the TUC machinery. That is the machinery which at the present time saves an enormous amount of difficulty, problems, and days lost which otherwise might occur through inter-union problems. I believe it to be common ground between Ministers and this side of your Lordships' House that, without the TUC disputes procedures and committee, inter-unionism and multi-unionism would be a much graver problem. But unless some amendment of this sort is put into the Bill, at an early stage in that procedure the member, who might be at risk of expulsion or refusal to admit, will surely be saying, "Do what you like with the Trades Union Congress machinery, because it appears to purport to exclude or to limit the operation of this section, in the sense that it demands of the affiliated unions that they accept the award and go by it; therefore to that extent the TUC procedures are void".
If that situation is the one which the Government create by the Bill, then they may have to look elsewhere for tens of thousands of voluntary man hours expended by experienced trade unionists who sit on disputes committees to sort out the difficulties of multi-unionism. After all, why should experienced trade unionists who have jobs in their own unions and difficulties in their own unions come and sit on these disputes com-
868
mittees under a contractual arrangement when, from the word go, the members or member who is involved may be able to say, "Your procedures are void"?
In our submission, the question for the Government, having looked at the matter again in relation to this much more modest amendment is: would they not take the view that at least the game should begin with the Trades Union Congress procedures being regarded as lawful? I stress that we appreciate that that does not mean that what has been done under a disputes committee award would necessarily always be that which the tribunal decided, because, as the Government insisted to us again and again, the essence of Clause 4 in relation to trade union membership is that that which the tribunal or the appellate courts from it decide is reasonable is what finally wins the day. There is nothing in this amendment in any way to limit the complete discretion of the tribunal to decide that an expulsion of a member from a union is unreasonable and therefore contravenes Clause 4.
What we are saying is that if the Government mean what they say about the desirability of placing this Bill in conjunction with voluntary machinery in such a way that it does not damage the voluntary machineries which save a great deal of difficulty that would otherwise arise, surely, at the very minimum, they would be prepared to say that the arrangements at TUC level should begin by being valid; but the tribunals, of course, would have the final decision on what the reasonableness was of a particular member's expulsion or exclusion from the union. I beg, to move.
The LORD CHANCELLOR: The Question is, that Amendment No. 3 be agreed to. Do I see my noble friend the Leader of the House about to make a Statement? I have just put the Question.

TOP SALARIES REVIEW BODY REPORTS
3.37 p.m.
The LORD PRESIDENT of the COUNCIL (Lord Soames): My Lords, with the leave of the House I will now repeat a Statement which is being made

869
in another place by my right honourable friend the Prime Minister. The Statement is as follows:
"With permission, Mr. Speaker, I should like to make a statement on two recent reports by the Top Salaries Review Body.
"Both reports have been presented as Command Papers and are available in the Vote Office this afternoon.
"The first of these reports—the review body's 14th report—makes recommendations for the salaries of the higher Civil Service, senior officers in the armed forces, members of the judiciary, and chairmen and members of boards of nationalised industries. The House will recall that in 1978 the review body made recommendations for these groups of public servants which our predecessors accepted but decided to implement in three stages, on 1st January 1978, 1st April 1979, and 1st April 1980. Last year the review body recommended an updating of the second and third stages, which we accepted. The third stage has been in payment since 1st April this year. The present report is concerned with the increases required to bring that third stage up to date from the levels appropriate on 1st April 1979 to the levels appropriate on 1st April 1980.
"The other report now submitted—Report No. 15 —makes recommendations for the salaries of Members of Parliament, Ministers and other paid office holders. Last year the review body made recommendations which the House agreed should be accepted, but should be implemented in three stages, on 13th June 1979, 1980 and 1981. The first stage was paid to all those concerned. The second stage has been in payment since 13th June last for Members of Parliament, but not for Ministers and other paid office holders. The review body's latest report is concerned with the increases required to bring the second and third stage payments up to date from the levels appropriate on 13th June 1979 to the levels appropriate on 13th June 1980.
"The review body has arrived at detailed recommendations over the whole field on the basis of all the factors which are traditionally relevant. The
870
Government is grateful to Lord Boyle and his colleagues for their thoroughness and attention to detail, and for all the time and effort which they have devoted to the review.
"They recommend increases of 14·6 per cent. in the second and third stage payments to Members of Parliament, and similar increases for Ministers. The general level of the increases which they recommend for the four groups of public servants is about 19 per cent., though they propose larger increases than that for certain categories within these groups. If these larger increases are taken into account, the overall cost of the increases recommended for these groups of public servants would work out at about 26 per cent.
"The Government are committed to accepting the recommendations of the review body, save where there are clear and compelling reasons to do otherwise. Indeed, my right honourable friend the Leader of the House told the House of Commons some months ago that the Government would accept the recommendations of the review body for updating the second stage increases to honourable Members. I should like to explain to the House, Mr. Speaker, why, notwithstanding these commitments, the Government take the view that there are clear and compelling reasons, of a kind which the review body could not take into account, for not accepting the review body's recommendations in full on this occasion.
"The overriding priority to which the Government's economic and monetary strategy is directed is the reduction of inflation. At over 20 per cent. the rate of inflation is unacceptably high in absolute terms and in relation to the rate of inflation in most of the countries with which we compete in world markets. We shall not be able to make progress in resuming sound economic growth and in reversing the rise of unemployment until we succeed in reducing the level of inflation very substantially. By sticking to our monetary targets we shall bring the rate of inflation down. It is likely to be falling in the next few months, but unless the growth of earnings is broadly consistent with the rate of monetary growth,

871
the fall in inflation will be accompanied by a larger rise in unemployment.
"Pay increases in the private sector are clearly beginning to respond to the combined pressures of tough market conditions and financial constraints. But the private sector cannot be expected to take the whole of the strain. Levels of pay increases in the public sector must likewise be reduced, if public expenditure is to be kept under control and our monetary objectives achieved. And when we are looking to other groups in the public sector to accept pay settlements which fall below what might be suggested by traditional comparisons with movements of other earnings or of prices, the Government think it right to expect people in positions of responsibility and leadership in Parliament and the public services to act in a way which we hope others in the country will follow.
"This is the background to the Government's proposals, to which I now turn.
"First, as to Members of the House of Commons. We are in the virtually unique position of determining our own remuneration. Our calls to others to show restraint and act responsibly will be judged by what we do ourselves. The review body has recommended a parliamentary salary of £12,300 from 13th June 1980 and £13,750 from 13th June 1981. These figures represent an increase of 14.6 per cent. The Government think it right to propose to honourable Members that they settle for a substantially smaller figure. We shall therefore invite the House to approve a resolution to provide a parliamentary salary of £11,750 from 13th June 1980. That represents an increase of £1,025 or 9.6 per cent., on the second stage salary of £10,725, which has been in payment since 13th June last. We propose also to provide in that resolution for an increase of the same percentage in the third stage salary, due to take effect on 13th June 1981, taking it from £12,000 to £13,150.
"We propose that the secretarial and research allowance for honourable Members of this House should be
872
increased by 9·6 per cent., to £7,400, with effect from 13th June, 1980.
"Ministers and other paid office holders are not yet in receipt of their second stage payment. We shall invite the House to approve an order putting into effect the second stage payments recommended by the review body last year, increased as for Members of Parliament by 9·6 per cent., save in the case of Cabinet Ministers and my right honourable and learned friend the Attorney-General. For them the increase will be reduced to 5 per cent.
"The order will also provide for the same percentage increases to be applied to the third stage payments due to take effect next year.
"We propose to adopt the review body's recommendation that we should unify the parliamentary salary payable to Ministers in the House of Commons from three rates to a single rate, and we propose that that rate should be £6,930. Although junior Ministers in the House of Lords now receive a secretarial allowance of £1,000, which we propose to increase to £1,100, they do not receive any salary specifically in respect of their parliamentary duties. This is a very real problem, and we propose to consider how the arrangements for their remuneration should be revised to take account of it.
"The Government propose that Peers' expense allowances, which are related to relevant costs, should be increased as the review body recommends.
"I turn now, Mr. Speaker, to the four groups of public servants covered by the review body's 14th Report.
"The Government considers that they should be expected to accept no less a reduction, as compared with the review body recommendations, than Members of Parliament are being asked to make for themselves. The increase which we are proposing for honourable Members is about one-third below that recommended by the review body. We propose that the average increase for the four groups of public servants concerned should also be about one-third below the general increase of about 19 per cent. recommended by the review body. That will bring the

873
overall cost of the increases to these groups down to about 12½ per cent. This will not be paid as straight percentage increases across the board to all those concerned; it will be so distributed as to mitigate the compression of differentials between the groups covered by the review body's report and those directly below them, and within those groups to preserve, though, of course, at lower salary levels, generally the pattern of differentials and relativities recommended by the review body.
"The Government propose that Peers' expense allowances"—
I think that I have already read that, and I apologise. I just hope that the Prime Minister did not make the same mistake.
"The result of distributing the total sum in this way will, in fact, be that most of those at the highest levels—the Permanent and Deputy Secretaries in the Civil Service, the equivalent ranks in the armed forces, and the chairmen of nationalised industries, will, like honourable Members and Ministers, receive percentage increases in single figures.
"The new salary rates for all four groups will be effective from 1st April 1980. The effect of implementing them will be to reduce the cost, as against full implementation of the TSRB 14 recommendations, by about 50 per cent.
"A special problem arises in the Civil Service. When other grades recently received increases following pay research, it was agreed that new salary scales for Assistant Secretaries and Senior Principals—the grades immediately below those covered by the review body's remit—should not be settled until the outcome of the review body's report was known. The results of pay research for the Assistant Secretaries would take the maximum of their scale above the rate we now propose for Under-Secretaries. In order to preserve tolerable differentials it will be necessary to set a lower scale for Assistant Secretaries from that which would result from the application of the pay research findings; there will also need to be a slight adjustment at the top end of the scale for Senior Principals.
"I shall, with permission, circulate in the Official Report schedules showing the current and proposed rates of salary for the main groups and grades concerned. Full details of the Government's proposals will be placed in the Library.
"For the groups covered by the review body's 14th Report, who have completed their staging, the rates of salary now proposed will be used for the purposes of calculating pension entitlements for all those concerned. For honourable Members of this House, and for Ministers and other paid office holders, pension entitlement will be calculated on the revised third stage salaries.
"With regard to the remuneration of nationalised industry board members, the review body in its 14th Report questions the appropriateness of its role, and has suggested that the Government should reconsider its remit in this respect. The Government share the doubts which the review body has expressed. We have therefore decided that this should be the last occasion on which the review body is asked to recommend on the remuneration of the chairmen and members of boards of nationalised industries. In future years these salaries will be determined by the Minister concerned in each case, with the approval of the Minister for the Civil Service.
"Mr. Speaker, I am very well aware that in making the proposals which I have now described to the House, the Government will be accused of going back on commitments and breaking agreements, and of failing in their obligations to the public servants concerned, on whose hard work, loyalty and integrity society depends. But they must have regard to their wider obligation to propose what we believe to be right. In present circumstances, the Government believe that these proposals would give fair levels of remuneration to honourable Members of this House and to the public servants to whom they apply, and at the same time measure up to the needs and expectations of those to whom we in this House are answerable and who in the end have to find the money."
My Lords, that concludes the Statement.
Following are the schedules referred to above:

Current Salary(a) £

Propose Salary £

Percentage increase %

MPs (Backbenchers)

10,725

11,750

9·6

Ministers

Examples:

Cabinet Ministers(b)

22,325

23,500

5·3

Ministers of State (Commons)

14,812

16,250

9·7

Ministers of State (Lords)

14,955

16,400

9·6

Parliamentary Secretaries (Commons)

11,262

12,350

9·7

Parliamentary Secretaries (Lords)

11·405

12,500

9·6

(a)Current Salary includes second stage of 1979 pay increase.
(b)Excluding Prime Minister, Lord Chancellor and Lord President of the Council.

Current Salary £

Proposed Salary £

Percent-age increase%

Higher Civil Service and Senior Armed Forces Officers

Head of the Home Civil Service

31,000

33,500

8·1

Permanent Secretary to the Treasury

Secretary of the Cabinet

Admiral of the Fleet

Field Marshal

Marshal of the Royal Air Force

Permanent Secretary

28,500

31,000

8·8

Admiral

General

Air Chief Marshal

Second Permanent Secretary

26,000

28,500

9·6

Deputy Secretary

22,500

24,500

8·9

Vice Admiral

Lieutenant General

Air Marshal

Under Secretary

18,000

20,500

13·9

Rear Admiral

Major General

Air Vice-Marshal

Percentage increases for group as a whole

—

—

12·6

Current Salary £

Proposed Salary £

Percentage increase %

Judiciary

Examples:

Lord Chief Justice

37,000

40,000

8·1

High Court Judge etc.

28,500

32,000

12·3

Circuit Judge etc.

19,500

22,000

12·8

Masters and Registrars of the Supreme Court etc.

17,250

19,500

13·0

Percentage increase for group as a whole

—

—

12·6

Current Salary £

Proposed Salary £

Percentage increase %

Nationalised Industries, Chairmen and Members

Examples:

British National Oil Corporation:

Chairman

53,500

58,500

9·3

Members

29,250–37,750

33,000–43,000

13·4

British Steel Corporation, Post Office:

Chairmen

48,500

53,000

9·3

Members

28,500–34,500

31,500–39,500

12·7

British Aerospace, British Airways Board, British Gas Corporation, British Rail, British Ship-builders, National Coal Board, Electricity Council

Chairmen

44,000

48,000

9·1

Members

23,250–28,750

26,000–32,750

13·0

British Airports Authority, Cable and Wireless, Civil Aviation Authority National Bus Company, Scottish Development Agency:

Chairmen

31,000

34,000

9·7

Members

18,500–22,500

20,500–26,000

13·4

Percentage increase for group as a whole

11·6

3.51 p.m.
Lord PEART: My Lords, I thank the noble Lord for the Statement. It is a long Statement, and very detailed, and I can well understand why a slip occurred now and then—a Freudian slip, of course. Never mind, the noble Lord has presented what I think is a formidable report, and one that must be studied by all Members of the House. It is a long and detailed

877
report. Here and there it fulfils promises. On the other hand, I believe that there will be difficulties in another place. I am not going to comment too much on another place on this issue, but I am sure that there will be a charge of lack of faith.
Of course, it is always the public sector which really suffers generally in this matter. I personally think that our public servants—and here I have regard to Members of Parliament and noble Lords—are people who really do not exploit the community in any way, and have not been properly recognised over a long period of time. Somehow there is still an attitude of mind in this country that public servants, politicians and others, are overpaid. For what reason I cannot understand.
I am not going to comment now on each detailed item. There will be problems. There is the question of the Civil Service. I am sure that the noble Lord the Lord President, who is responsible for the Civil Service, will have difficulties here. No doubt we shall have to wait and see. I hope that he does not, but I think that he will. There was an agreement about the review body, how it should be altered, but I still think that the new proposals may not work. The idea of having a Minister responsible to the department for pay cuts right across the whole concept that we have had regarding the Civil Service for a long period of time.
I welcome, though, many of the things which affect Members of this House, especially the increase in allowances which are necessary for the reasons which are obvious—the increase in the cost of living. I am glad that this has been tackled openly. I hope that noble Lords will carefully read the document. I am not going to comment any more now on this. We must carefully read the document, and then at some other time we shall have to discuss the details.
Lord WIGODER: My Lords, we are grateful to the noble Lord the Leader of the House for repeating that Statement, and also, no doubt, to the noble Lord, Lord Boyle, who has the invidious task of presiding over the committee which makes these recommendations. We resist from these Benches the temptation to congratulate the Government on the first
878
faint glimmerings of an incomes policy which appear to show through this document. It is perhaps sufficient if we say that in the present difficult financial situation it is hard to see how the Government could come to any other broad conclusions except those to which they have come in the course of this Statement.
May I refer briefly to two of the recommendations. First, may I say how much we from these Benches welcome the proposal that consideration will be given to the remuneration of those who are junior Ministers and who serve in your Lordships' House. They face an intolerable burden and it will, I know, have the approval of all parties and those of no party in your Lordships' House if steps are taken to ameliorate that burden.
Secondly, no doubt I should say that noble Lords will want to welcome the fact that the increase in costs which is involved in our coming to the House is recognised in the course of this Statement. Perhaps the noble Lord the Leader of the House will think it worth stressing that the modest sums that are received by your Lordships in the course of working very long hours in this House are not in any way by way of remuneration or reward, and that they are no more than the reimbursement of money actually spent in attending the House.
Lord SOAMES: My Lords, I am grateful to the noble Lords, Lord Peart and Lord Wigoder, for their comments. May I just pick up one or two points. Yes, of course commitments have been made to the Civil Service. The Prime Minister referred in her Statement specifically to Assistant Secretaries and Senior Principals. Also commitments have been made to the House of Commons by this Government. But the situation has changed and the Government regard it as their duty, when it is necessary, to make the necessary adaptations and openly to say, "All right, we are sorry. In the national interest we feel it right that we must go back on these commitments".
I am the first to agree with the noble Lord, Lord Peart, who has indeed himself fulfilled the job of Minister responsible for the Civil Service, on the enormous debt that we owe to the Civil Service for all that it does for us. Here I come to the

879
point made by the noble Lord, Lord Wigoder, who queried in a rather quizzical manner whether this was the first step of an incomes policy. In no way is it this. But what it is is the Government realising that they have to live up to their responsibilities in the national interest in regard to the salaries and wages of those to whom they are directly responsible. It is no good saying we are going to leave this entirely to the private sector. The Government themselves must share this, and must be ready to ask those who are in positions of leadership to give a lead in this regard. It is this theme that runs through the whole Statement of my right honourable friend the Prime Minister.
Perhaps it would be for the convenience of the House, following on the question asked by the noble Lord, Lord Wigoder, if I said what are the new recommendations by Boyle which have been accepted for Peers' expense allowances. Overnight subsistence, £23; day subsistence and incidental expenses, £11; secretarial costs, postage and certain additional expenses, £10. As the noble Lord, Lord Wigoder, said, this is the view of Lord Boyle of one thing and one thing only; it has nothing to do with a salary. Noble Lords come to this House and give of their time without any salary at all. This is nothing more nor less than what is seen by Lord Boyle and his board as being necessary to pay the expenses incurred by noble Lords in fulfilling their duties in this House. It is that, and nothing more and nothing less.
Lord TAYLOR of GRYFE: My Lords, will the noble Lord accept that in the nationalised sector the awards that have now been made give rise to certain anomalies? The going rate for increases in many of the nationalised industries at the moment is around 20 per cent. That applies right through up to management level, whereas board members and nationalised chairmen are being awarded 12 per cent. It makes board membership extremely unattractive to executives in various nationalised industries.
Will the noble Lord accept also that the anomaly has been further compounded by the fact that recent appointments in nationalised industries, notably the chairman of the British Steel Corporation and now more recently the chairman of the BNOC, have placed the rest of the
880
nationalised sector out of line, and the present award does nothing to correct that anomaly? Can I have the noble Lord's assurance that the transfer of nationalised industry chairmen and board members from the Boyle regulations to the new review situation will be implemented fairly soon?
4 p.m.
Lord SOAMES: My Lords, in answer first of all to the last question asked by the noble Lord, Lord Taylor, yes, this is the last time that the salaries of the chairmen and board members will be recommended by the Boyle Review Body. Their next round, which will not be before this time next year, will be settled by the Ministers who have a certain measure of responsibility for each particular nationalised industry in consultation with the chairmen, with an overall view, as it were, being kept by the Minister in charge of the Civil Service, to ensure that it is not too much out of line, bearing in mind that indeed the responsibilities of some are greater than others. It may well be that they will not be the same; they are not now and they will not be necessarily the same.
As for the differentials and the problems that arise there, there are, of course, difficulties. The nationalised industries are not the only field where people working below the board get paid more than members on the board of the company. This happens from time to time in the private sector. You can find it in many companies, and indeed it is also most certainly found in Government where I am glad to say that permanent secretaries get more money than their Ministers. Indeed, junior Ministers get paid much less at the moment than a Principal in the Civil Service. This is the way the cookie crumbles, as it were. If they do not like it, I am afraid there is only one solution for them and that is to go. But we do not want them to go and we think that on the whole they will soldier on and continue to do this. But the way to cure this difficulty, frankly, is not for the board members to go up by 25 per cent. but for the others to come down in their wage increases and in their salaries from now on.
Lord BOYD-CARPENTER: My Lords, may I ask my noble friend two questions

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also on the subject of the chairmen and the boards of nationalised industries on one aspect of which he has just replied to the noble Lord opposite? Am I right in understanding what he has just said and what was said in the Prime Minister's Statement as indicating that the Government on this occasion have not avoided the difficulty which arose in 1975 when the decision of the Wilson Government left a number of full-time executive board members being paid something like £2,000 or £3,000 less than their immediate subordinates, with an immediate effect, of course, of restricting promotion or so-called promotion from below to those boards? On this occasion has this been avoided?
My second question is: while congratulating and applauding the decision to take the chairmen and members of nationalised industry boards out of the Boyle remit, I should like to ask whether the noble Lord really feels and considers, as the Government do not control the pay of anybody else in the nationalised industries, that it is necessary for Ministers, as he has indicated, to exercise direct control over these or whether it would not suffice simply to preserve a reserve power in case some nationalised board or chairman were really silly?
Lord SOAMES: My Lords, I am grateful to my noble friend, Lord Boyd-Carpenter, for the questions he has asked. Where differentials of salaries are concerned, no, the problem has not been cured and indeed to have cured it would have required an increase of salaries to executive board members which would have been beyond what the Government think would be right in the present circumstances.
On the other hand, what we have done is to put the emphasis on board members and whereas the increase of salaries to board chairmen will be of the order of between 9 and 10 per cent., that for board members will be between 12½ and 13½ per cent. So, within what was available in terms of percentage increase, we have put the weight on the executive board members for the very reason which my noble friend has stated, in order to do our best with differentials, given the circumstances.
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As for the question of the extent to which Ministers should interfere with the salaries of board members in the future, this will of course be for the Minister concerned, together with the chairman. The objective here, and the reason indeed, as noble Lords will see when they come to read the report, and the motives which brought Lord Boyle to suggest that they should be taken out and which brought the Government to be of the same view, were because we wanted market forces to apply to greater effect. This was the main reason, and my noble friend can, I hope, take some comfort from that.
Lord ROBBINS: My Lords, without commenting on any of the detailed proposals which have been revealed to your Lordships' House by the Leader of the House, may I ask him whether, despite his denial to Lord Wigoder, any suggestion of an incomes policy was conveyed by the Statement which he read to the House? Did it not contain an implicit admission of the fact that, where the Government is the employer, directly or indirectly, even the most pronounced monetarist would agree that it would be folly not to have an incomes policy?
May I ask him also whether the measures which have been proposed, austere though they are, do not constitute a recognition that in a small way, whatever they do to inflation, they will certainly have a tendency to retard the increase of unemployment?
Lord SOAMES: My Lords, hopefully it will do more than that. Hopefully it will encourage others to settle for less high wage increases and that will have a major effect on unemployment. I see what the noble Lord is trying to say, and I am not going to accept it because we have a very broad span of increases which have been reported to this House in the public sector in recent times, from 14 per cent. to the nurses down to 5 per cent. to Cabinet Ministers. If that is an incomes policy, it is a very broad one.
What I think we are doing is not pursuing an incomes policy but pursuing—properly so—a sense of responsibility.
Lord BOOTHBY: My Lords, I may have missed it, but may I ask the noble Lord whether Her Majesty's Government

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intend to implement the belated recommendation in the Boyle Committee's Report that members who served in the House of Commons for a considerable length of time before 1964 should have a pension as of right; and whether he realises that most of us are now dead, and that if he waits for very much longer we shall all be dead?
Lord SOAMES: My Lords, I do not know about the noble Lord but I am alive and no, I am afraid this does not form a part of the Boyle Report, though I know that the point raised by my noble friend is taken. But it is not taken by Lord Boyle: he was not invited so to do.
Lord SHINWELL: My Lords, I failed to gather from the Statement by the noble Lord what is the estimate of the accumulated savings to be effected as a result of the decision taken by the Government. I think we ought to know.
Is the noble Lord aware that the Statement is, in my opinion, far from draconian in the sense that it is really disastrous?— because I recall 1931, when the unemployment benefit was reduced by 10 per cent. and the salaries of Members of Parliament which at that time were only £400 a year were reduced by 20 per cent. and there was a similar reduction for the Civil Service, Cabinet Ministers and all the rest at that time. So it is not as serious as some would suppose.
Lord SOAMES: Taking the first point first, my Lords, I have a figure of £6 million of savings in my head. I must own up to your Lordships, in that whether that applies to Report No. 15 or Nos. 14 and 15 together, I am not absolutely certain, but No. 14 is certainly where the large money is. As I say, the figure I have in my mind is £6 million and I do not think that is far out for the total. As to whether or not it is draconian, it was not seeking to be draconian. As I said and can only repeat, what the Government thought they were doing was performing their duty given the circumstances and fitting in the natural desires of those concerned—in effect trying to match that on the one hand with the national interest on the other.
Lord LEE of NEWTON: My Lords, may I ask the noble Lord to make it
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quite clear that the expenses of Members of this noble House are purely to cover their own expenditure when living in London and so on, so that people are therefore not misled either by ignorance or by malicious statements coming from another place?
Lord SOAMES: I do not know from whom such statements would come, my Lords, or whether I would have any influence over them in what I say, but of course what the noble Lord asserts is absolutely correct; it has already been said by the noble Lord, Lord Wigoder, and I have confirmed it. This is purely for expenses incurred and there is no element in it of salary whatever.
Viscount SIMON: My Lords, as the noble Lord has given an estimate of the saving, may I ask whether that is a gross figure or whether it takes account of the taxation?
Lord SOAMES: That was a gross figure, my Lords, or at least I hope it was.

EMPLOYMENT BILL
Report stage continued on Amendment No. 3.
4.12 p.m.
Lord ROCHESTER: My Lords, in Committee I supported the amendment to which the noble Lord, Lord Wedderburn of Charlton, referred. I did so because I very much agreed with the principle that trade union procedures should be exhausted before complaints were laid before tribunals, in much the same way that I have great sympathy for the view that procedures as between employers and trade unions should be followed right through before industrial action is taken. In the course of discussion, however, I said that, if that was to happen, it might happen within a reasonable time, and that point appeared to be acknowledged by the Labour Opposition Front Bench, if I recollect correctly. At any rate, I had supposed that for that reason, in any amendment put forward on report, there would be some recognition of the need for a time limit in the observance of union procedures. I therefore wonder why this has been omitted from the amendment, for without it it serves to weaken

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somewhat the support I would otherwise feel for the amendment, and it seems to become even less likely that there will be that consensus among your Lordships on this matter, for which I was genuinely hoping in Committee, and certainly at that time strongly advocating. I should welcome any enlightenment on that point that the noble Lord, Lord Wedderburn, may care to offer.
Lord MACKAY of CLASHFERN: My Lords, it is important in seeking to deal with this amendment to stress, as I did when I dealt with a somewhat similar point in Committee, that the subsection into which the amendment proposes to insert a reference into what I shall call for short the Bridlington procedures is a subsection which provides that a provision in an agreement shall be void in so far as it purports to exclude or limit the operation of, read short, the rights conferred by the clause. So far I have not heard any justification for the view that the TUC's disputes principles and procedures do anything of the kind; and if they do not do anything of the kind, then there is no need to exclude them from the operation of this provision. The principle of Clause 4(ii) appears to be absolutely self-evident; if you confer general rights by statute, then it ought not be be possible for people to evade that by making private contracts not to exercise those rights, and we understood that we had the agreement of the noble Lord's friends in another place to that principle when the matter was debated there.
As I said in Committee—and I do not withdraw anything of what I said then; some of the observations I made then were quoted by the noble Lord a short time ago—we believe these procedures are valuable and that they have a very beneficial effect in reducing inter-union strife. We also believe that this procedure should not ultimately preclude individuals from making use of their rights under this clause. We have no intention whatever of undermining the Bridlington procedures. A tribunal determining a case of expulsion or exclusion will include in its consideration the question whether the action was taken in pursuit of these procedures or similar arrangements, and there is nothing in the clause as drafted which prevents that. In my view, it is perfectly plain that that is something
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which is open to the tribunal to do and which the tribunal would take into account. It is worth noting, as I remarked in Committee, that in one relevant case taken under Section 5 of the 1974 Act, which was not a closed shop case, Bridlington procedure was found to be reasonable in its application to that case.
The code of practice on the closed shop which the Secretary of State will issue after consultation with ACAS will certainly contain practical guidance on the significance of the Bridlington procedures. Such codes issued under the Bill will be taken into account by tribunals in determining questions to which they are relevant, as is provided by the clause. Accordingly, as I said, I am not aware that the Bridlington procedures in any way seek to exclude or limit the rights created by these clauses. But if they do, or if in the future they were amended to do so, we believe it is right that only in so far as they purported to limit or exclude the rights created by the statute should they be void. There would never be any possibility of the whole agreement being void, and certainly there is no intention of making it so by any of these provisions. Therefore I do not see, with all respect, how the noble Lord can say there is any danger of the tribunal not being entitled to see whether the decision that has been come to and is under review was a decision come to in accordance with these procedures.
I would emphasise that the Government recognise the usefulness of these procedures and the sacrifices that are made by the people who take part in them voluntarily and give of their time to these procedures, and we wish them to continue and to be successful. There is no intention whatever to undermine them in any way, but we take the view that however valuable, no agreement should be allowed ultimately to restrict an individual's statutory rights. In those circumstances, I invite your Lordships not to agree to the amendment.
Lord WEDDERBURN of CHARLTON: My Lords, we are somewhat disappointed by that response, although not altogether lacking in expectation of it, and I would make three points in reply to the remarks of the noble and learned Lord the Lord Advocate. First, the scale

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of the problem under this clause is very small. He himself referred to the period between 1974 and 1976, when there was a statutory provision of a more general but similar kind, and only 33 cases and four successful closed shop cases were found by the tribunals in two years, and in the Independent Review Committee, in which my noble friend Lord McCarthy and I play a part, we have had only about 30 cases within the terms of reference in four years. Thus, there is a very small number of cases involved, except in the area covered by the TUC Bridlington disputes principles and procedures.
In reply to the noble Lord, Lord Rochester, may I say that the reason it is not possible to include in this amendment any particular time element is because that would go to the reasonableness of the operation of the procedures. Clearly if someone was expelled or refused admittance and the process undertaken under the disputes procedures took an unconscionable time, that would go to the reasonableness of the exclusion.
The same is true of the point of the noble and learned Lord the Lord Advocate. Nobody is denying that the ultimate right of someone under the clause—albeit we do not like the clause—is to go to the tribunal. But when the noble and learned Lord the Lord Advocate gives an assurance that no part of the present TUC disputes principles and procedures contained in the little booklet is capable of being understood to be void to any extent—it would be rare that I suggested that—he is being a little rash. But there is at least an argument that when a union is bound, and contractually bound, to exclude a member by reason of the operation through the model rule of all these procedures, that could be understood to be some limit which is purported to be placed upon the operation of the clause. I am glad that the noble and learned Lord does not think so. I can only hope that the tribunals, and more especially the appellate courts, will agree with him when the matter comes before them, as I am sure they will. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.21 p.m.
Lord McCARTHY Lord McCARTHY moved Amendment No. 4:
Leave out Clause 4.
The noble Lord said: My Lords, it is with regret that we find that we have to move this particular amendment, which in effect asks the House to leave out the whole of the proposals for unreasonable exclusion. As has been said by the noble and learned Lord, Lord Elwyn-Jones, we have sought to suggest a series of reasonable and helpful ways of making this clause work better. We have tried to point out that the requirements of trade union rule books could be put in jeopardy by the operation of the clause. We have tried to suggest the operation of Bridlington procedures, which, the last time that we discussed this, and indeed today, the noble and learned Lord opposite said the Government like to see work, and think work well. We have tried to suggest that trade union job territory objectives would be affected by the clause, and that all kinds of unnecessary and extremely unwise competitive trade union practices would develop; the forces of trade union competition would grow as a result of certain parts of this clause.
Today in particular we have sought to put forward once again three very modest amendments dealing with the jurisdiction of the EAT, Bridlington, and the question of lapsing. We have been given four different kinds of answer. Sometimes we have been told that the spectres that we have sought to raise would never appear because the tribunals are full of extremely reasonable men, and therefore, although it is always possible to include in the Bill provisions to deal with the fears of the small businessman, one cannot do anything to deal with the fears of the small shop steward; he must trust in the tribunal.
Furthermore, we have been told that some of the practices that we should like to stop ought to go on. We have been told from time to time that the kind of competition involving the right to choose between unions—which some people say is supported by the European Convention decision—is something that the Government would like to see. Therefore we are quite wrong to suggest that the Government should be careful because parts of this clause could make trade union competition, which is the besetting sin of the British

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trade union movement, much worse than it now is.
Sometimes we have been told that anything that we might suggest, for example, in relation to lapsing, cannot be done, however sensible and practical it might be, because the trade unions might abuse any discretion that we might give and might wheedle people out of their unions by fiddling about with check-off provisions. Sometimes—not today, but previously—we have been told that we must wait and see because all these issues about which we are concerned will be dealt with in the code of practice when it comes.
We are not suggesting—and I would not suggest—that trade unions, where they have closed-shop areas, should be beyond the reach of the law. I would not suggest for example, that where trade unions unreasonably, unlawfully expel people, they should be beyond the reach of the law. Indeed they are not beyond the reach of the law, because the ordinary courts interpret the rule book as a contract between the members, and they apply the rule book in an extremely rigorous way. I would not oppose the kind of statutory tribunal which was proposed in the first instance by the Donovan Commission. It seems to me that these kinds of tripartite tribunal could play a useful role in dealing with these relatively small problems, and that they would be agreeable to all sides.
But that is not what is being suggested. What is being suggested is a series of provisions which we believe will quite unnecessarily and quite unjustifiably select out trade unions in relation to exclusions and admissions in a way which the record does not suggest is necessary, and which the Government, in their own estimate of the size of the problem do not really suggest is necessary. For that reason we must at this time oppose the clause. I beg to move.
Lord ROBBINS: My Lords, if the Opposition decide to divide the House, I shall go into the Lobbies supporting the Government, but I must confess that I am disappointed that so little consideration has been given to these three amendments to Clause 4. Although I find myself ideologically—though not in a friendly capacity—opposed to the noble Lords who are leading for the Opposition, it seemed to
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me that the case that they put forward deserved more consideration than it received from the Government Benches.
Lord HOUGHTON of SOWERBY: My Lords, I do not think that I am in favour of removing this clause from the Bill. If we remove Clause 4, we must also remove Clause 5, because Clause 5 deals with the compensation element of procedures under Clause 4. On this matter I have taken a perfectly consistent view for a very long time. As I told your Lordships previously I was a member of the Liaison Committee of the Parliamentary Labour Party, the National Executive of the Labour Party, and the General Council of the TUC, which tried to get agreement on a wide range of matters relating to the future policies of a Labour Government. That was in 1973. What emerged from the discussions eventually came to be called the social contract, although, as I have observed previously, in the course of the discussions the trade unions did not at all want the word "contract" to be used. In fact they would not even use the word "compact"; it was to be an "understanding".
Part of the understanding was what a Labour Government should do with the Industrial Relations Act 1971. The trade union view at the time was very simple and direct: get rid of the Act, repeal it in its entirety, finish it. But that became less attractive as we drew closer to the examination of what repeal would mean in those absolute terms. Some parts of the 1971 Industrial Relations Act were in fact re-enacted by a Labour Government, and part of what they did will be considered later when we give attention yet again to clauses relating to the closed shop.
However the relevance of what I am saying to the clause at present under consideration is that in the course of those negotiations there was expressed a very strong view that exclusion or expulsion from membership of a trade union was not a private matter between unions and individuals. Questions of public policy were involved; and, indeed, the more power the unions got and the more agency shops or closed shops they obtained, then the greater the public interest in how the unions exercised their powers and in what opportunities were given to members

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and individuals to get redress for grievances against unions.
I think my credentials are pretty good. I was a secretary of a national trade union for 38 years; I was a member of the General Council of the TUC for nearly 10 years; I have been chairman of the staff side of the Civil Service Whitley Council and a member of it for a very long time; and I was the secretary of a union which had remarkable success, with the most tolerant constitution and the most agreeable and tolerant relationships between the union and its members. In all the time I was the general secretary we never had less than 90 per cent. paying membership in a purely voluntary trade union, and frequently it went to 95 and 96 per cent. That was because we addressed ourselves to the needs of members and paid attention to their requirements, and followed the course of democracy to the utmost of our ability; and with the voluntary co-operation of a membership of 60,000 or 70,000 spread in 1,100 offices throughout the United Kingdom we had one of the best organised unions affiliated to the TUC.
When it comes to using the rules to exclude a person from membership or to expel an existing member from membership, even if there is not a closed shop arrangement, one has to be careful of the harm one may be doing to the livelihood and to the reputation of an individual member. Therefore I should have thought that what trade unions wished to have was the cleanest possible bill on matters of exclusion and expulsion; and thus it seemed to me—and this is the view I expressed so strongly in the course of the discussions we had in 1973—that the only satisfactory course was to give aggrieved members the right to appeal to an independent tribunal whose work would be public and whose responsibilities would be to the public as well as to the unions and the members concerned.
That view did not prevail. In the end, what was accepted by the Labour Government was the, not desire (I would not use that word) but the willingness of the trade unions to have an independent body of their own. The argument was that trade unionists so feared the law and were so strongly prejudiced against judges and the courts that the only satisfactory
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court of appeal to them would be one appointed by them; and this is in fact what was done. This tribunal consisted of persons nominated by the TUC; the chairman, I believe, was also nominated by the TUC, but after consultation with the Secretary of State for Employment and the chairman of the Arbitration and Conciliation Service. So far as I know, that body is still in existence. The names of its members I do not know. What has been the extent of the use of this tribunal by aggrieved members I do not know, either. Perhaps I ought to have tried to find out; but it seems to me that a body of this kind ought to be operating more clearly under public observation.
So I feel that this issue now recurs on the Question, Whether the clause shall stand part? Here we have a set of rules and the opportunity of an appeal to an independent tribunal of a more formal character—not a court of law, but a statutory body with powers to award compensation. I am not aware that the trade union committee or board of appeal has the right to award compensation. I have not heard that it has. The Donovan Commission reported, in paragraph 630 onwards, in favour of the setting up of an independent tribunal, and said—I am quoting from paragraph 630:
"In our view the connection between membership of a trade union and employees' livelihoods means that trade unions cannot be regarded simply as voluntary clubs from the members' point of view".
Then they went on to describe the consequences that could follow exclusion from membership or expulsion from membership, especially in a closed shop situation.
I therefore consider that your Lordships' House ought to think carefully before we regard the existing state of affairs as satisfactory. I have no knowledge of complaints made against it. I want to be absolutely fair about this: I have heard nothing to the detriment of the operation of that body. Nevertheless, I feel that as a matter of principle and as a matter of public policy there are occasions when one has to lift procedures to a higher level of public responsibility, accountability and facility for public judgment on the workings of our intricate system of human relationships. All this leads me to feel that it is better to leave Clauses 4 and 5 in this Bill than take

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them out. I think this is the time to decide once again whether we want one system or the other, and I strongly prefer the one to which I have adhered for the last 13 years.
4.38 p.m.
Lord BOYD-CARPENTER: My Lords, I hope that the noble Lord, Lord McCarthy, will take the excellent advice which has just been given to him by his noble friend Lord Houghton of Sowerby, speaking with the advantage of immense experience, and not press this amendment. The clause may or may not be in perfect form. We have had a good deal of argument, which it would be a waste of time to recapitulate, on precise aspects of it. At Committee stage, apparently, the noble Lord, Lord McCarthy, was sufficiently satisfied with the answers he got not to press his amendments, and I hope he will follow that good habit here. Because there is really one simple justification for this clause, and that is the continuance of a closed shop situation. I agree with the noble Lord, Lord Houghton of Sowerby, that even in a non-closed shop situation expulsion from a union, with the personal and social problems that that can create, is a very serious matter, and I agree with him that it can raise matters of public as well as private importance. But I concentrate on the closed shop situation, because where you have a closed shop, and if they are to continue, expulsion from a union can and generally does mean the loss of your job, and refusal of election to a union can mean the impossibility of obtaining a job you want. That is a matter of major importance, and when an individual is so placed I must confess it offends my sense of justice that anyone should seek to deny him access to an independent tribunal to argue his case.
May I very briefly support that view by recalling to the House a particular case in which I was involved when I sat in another place as Member of Parliament for Kingston-upon-Thames. There came to my regular surgery a printer who had been a member of one of the major printing unions of this country for some years. He had emigrated to Australia for two or three years and, naturally, during his absence had allowed his membership of the English union to lapse, although as a matter of interest he had joined the equivalent Australian one.
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On his return to Kingston, he applied for and was given a job as a printer on the local newspaper close to his home. There was a closed shop situation there and the particular union refused to accept him in membership. The reason that they gave was not that there was anything the matter with him—he had been a loyal trade unionist in two continents all his life—but they said that they had other members whom they preferred should have that particular vacancy. That seemed to me as the local Member of Parliament an intolerable interference in the right of a man to do a job he wanted and where the employer wanted him. I am glad to say that it was satisfactorily resolved by a discreet indication to the headquarters of the union that Parliamentary pressure and perhaps a measure of publicity might be directed on them if they did not modify their view. By happy coincidence they did. He was duly elected to the union and got the job.
The situation where that kind of thing can happen surely must justify the inclusion of some provision which will afford a man whose livelihood may be taken away, who may be denied the right to work in the trade in which he has a skill, some independent appeal. This surely must be given to him. As a final consolation to the noble Lord, Lord McCarthy, I would remind him—although it should hardly be necessary to remind a member of the Labour Party of this—that taking out Clause 4 is apt to be a very long drawn-out and painful operation.
Lord LEE of NEWTON: My Lords, may I support my noble friends in their amendment. I can never understand, and I have said this before, why people should imagine that some of us spend half our life running around trying to get members into trade unionism in order to kick them out. Clause 4 is, I think, based upon that premise. A short time ago we were discussing in an amendment the issue of a person who has been excluded and who feels that it has been done erroneously. I take the point of the noble Lord, Lord Boyd-Carpenter. It is possible at local level for something of that kind to happen. But I would remind the House that it is also the case—indeed, the case he quoted was rectified by going to headquarters on the matter—

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that in almost every trade union movement that I know there is the facility for any member who feels that he has been excluded erroneously or by malice to take the matter further.
In my own union we have a final appeal court. Irrespective of whether it is a case against the executive council or against the local district committee or whoever it may be, every individual member has the right to take a case to the final appeal court. That final appeal court is not made up of full-time officials but of rank-and-file members whose sympathies are in the main almost bound to be with the rank-and-file person who takes his case to them. I could give you instances of where time after time they have turned down recommendations of executive councils in favour of the individual. So it seems to me that the possibilities of a person being wrongfully excluded are very small if, which is his right, he takes the use of the rule book to its final conclusion.
On the point about Bridlington, I think that the British trade union movement is in a peculiar position vis-àvis most of the others. We made the mistake in this country of pioneering trade unionism. Many of the mistakes in our compilation of the rules have been avoided by others. The greatest irony is that the British TUC advised and almost set up the modern German trade union movement—in a way that they cannot do with their own members. Industrial unionism—one union, one industry—is by common agreement the right kind of approach to organising. But you cannot do it in Britain. With respect to those of my noble friends who are members of general workers' unions, how can you get one industry, one union, when you have two or three large general unions spread over 30 or 40 industries?
For this reason, I ask the Government to look at this question again. One will often find that a number of trade unions may be organising the same class of labour, the same kind of craftsmen. It is a pity. It is inefficient, but we cannot get to the point of having 12 or 17 unions as in Germany. We are trying, I think, by the amalgamations that are taking place, to reduce the number of unions; but under our present set-up we cannot
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get to the point that I should like to see: that of industrial unionism. For this reason, I believe that the TUC's Bridlington arrangements, peculiar to this country and to our own unions, are very vital. I am not in the least trying to denigrate the ideas of a tribunal, but I want to feel that people who have spent their lives trying to deal in a sensible way with the problems I have been trying to outline to the House should have the opportunity to do so first.
This is what the TUC are doing about Bridlington, in trying to get accommodation between people of goodwill caught up in a structure which is very difficult to work and difficult to get rid of. I hope that if we are to avoid what could come to a difficult problem as between the contents of Clause 4 here and the TUC's Bridlington arrangements, we can do so without exacerbating a situation which has no need to become ugly but which could become so if we are not careful.
4.49 p.m.
Lord BROOKES: My Lords, I believe that this House would be discharging nothing more than its ancient duty if it were to see these clauses as providing the minimal protection for the dignity and liberty of the subject. I have experienced situations of great tragedy and sorrow in which the closed shop has been misused or has been sought to be misused by enthusiastic and well-meaning trade union officials. I will not bore the House, but I recall that perhaps the best convenor that I ever had to contend with, a magnificent chap who went bald-headed for production and bald-headed for top pay—and if there were more like him in this country today our economic dilemma would not be so severe—was to be cast out of his union because he has a disagreement with its headquarters; and 14 shop stewards finally presented the pistol point to me on the classic and understandable argument that if you do not belong, and do not pay to belong, you have no right to enjoy the benefits of trade unionism. That is a very ancient belief and one not without its merits. But it rarely stands up to the consistent behaviour which has characterised human life when we seek to inflict appalling disciplines on a man and his family for a permissible disagreement.

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I met that particular situation by asking the 14 men present to raise their hands if they had not been baptised in church and then to do so if they were married. It so happened that they were all married. I inquired whether they had children and whether they had bothered to have them baptised. Then I asked: "How long is it since any of you were last in church? Hands up, over the past five years"? There was only one—a Wesleyan—and a good man at that. Thirteen were consistently enjoying benefits and expecting a decent burial while seeking to exclude a fellow man from his livelihood.
4.50 p.m.
The Earl of GOWRIE: My Lords, the noble Lord, Lord Robbins, told us that though he was disposed to support the Government and resist attempts to remove Clause 4, he did not feel that we had made a case against the amendments. In fact, he was being a little premature because the case, such as it is, is now coming from the Government, though the Government have been somewhat pre-empted in their work, as we also were with secondary picketing during Committee by a splendid speech from the noble Lord, Lord Houghton of Sowerby, as well as from my noble friend Lord Boyd-Carpenter who asked the noble Lord, Lord McCarthy, to attend to what the noble Lord, Lord Houghton, had said.
The noble Lord, Lord Houghton, answered any anxieties that were expressed by the noble Lord, Lord Lee of Newton, that in some way we are downgrading the union's own procedures on matters of unreasonable exclusion or expulsion by saying—and I quote the noble Lord, Lord Houghton:
" Questions of dismissal and exclusion from unions are not just a private matter between unions and individuals, but questions of public policy are involved".
We of course heartily agree with that.
The effect of this amendment is that there would be no right of appeal to an industrial tribunal over unreasonable exclusion or expulsion from a trade union where membership of a specified union is required for employment, in short, in a closed shop situation. Therefore, Clause 4 embodies one of the major changes in the closed shop law which the electorate was promised last year. It will provide a new and easily understood right
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against unreasonable exclusion or expulsion from union membership in situations where a person's livelihood depends on such membership. We in this context need to look forward to the provisions about picketing because much of what we are doing on secondary picketing involve for their effectiveness these measures against unreasonable exclusion in respect of the closed shop. My noble friend Lord Brookes—with all his experience of industry—made an impassioned appeal that rights of this kind should be retained.
The idea behind this kind of right is not new. The Donovan Commission suggested individuals should have a legal right of appeal to an independent body against exclusion or expulsion. The Labour Government of that day put forward such a right in In Place of Strife. The 1971 Act included it in its provisions on members' rights and Section 5 of the Labour Government's 1974 Act gave individuals a right to complain to a tribunal of arbitrary exclusion or expulsion. Even the last Administration, amending the 1974 Act, appeared to accept the case only to be persuaded, as the noble Lord, Lord Houghton, told us, to try first a new voluntary body, the TUC's Independent Review Committee. In being so persuaded it nevertheless promised to review its effectiveness and come forward with legal provision if necessary.
In our society union membership is often not a voluntary matter. Over 5 million workers are in closed shops and for them union membership is necessary to get or keep a job, or even to pursue a career at all. As the Donovan Commission put it,
"it may well be thought unacceptable that a citizen's livelihood should depend upon the will of a few other citizens being members of a trade union committee or branch committee".
It is unacceptable; and the noble Lord, Lord Houghton of Sowerby, was quite right in saying that therefore large issues of public policy are involved. Of course, union members do have certain common law rights but these are not always clear or easily enforceable and the rights of applicants for membership who are not yet in closed shops are even more doubtful. What we are trying to provide is a much more straightforward right. Noble Lords opposite, notably the noble Lord, Lord Lee, have expressed fears that the work

899
of the TUC Independent Review Committee will either cease or be seriously disrupted. We do not accept that this should be. If the remedies it provides are effective—and it has been stressed in the debate how unions agree to follow its recommendations and reinstate members—then people will want to go on using it and there is no reason why the TUC should wish to discontinue it—and the Government hope they will not wish to discontinue it.
More generally, the provisions allow—as they do in unfair dismissal cases—for conciliation before tribunal hearings; and, as with dismissal cases, this will encourage the use of voluntary procedures where both parties want it. It may indeed lead—as it has done in the dismissal area—to improvement in voluntary procedures. Over a decade ago now the TUC itself laid down a series of principles which affiliates should adopt on admission, disciplinary and expulsion matters. Many unions are still a long way short of these standards and we all agree that there is room for some improvement.
I know the TUC has expressed some fears that this clause will disrupt the workings of their "Bridlington" principles and procedures. The noble Lord, Lord Wedderburn, had something to say on that on Amendment No. 3 and his noble friend Lord Lee of Newton tackled it in respect of this amendment. We understand their concern and we acknowledge that Bridlington is a necessary and important feature of our industrial relations landscape. But we believe their fears are exaggerated here. I do not know of any reported case under Section 5 of the 1974 Act where an exclusion or expulsion in order to comply with a Bridlington award was found to be unreasonable, but I do know of one case in which the tribunal specifically endorsed the application of Bridlington (Bannister v APEX).
However, as the noble Lord, Lord McCarthy, rightly anticipated, we will consider providing satisfactory guidance in the Code which is the proper place where we can satisfy any real fears that might remain; though, as I have argued, I do not think that such fears are substantial. That is why I ask your Lordships to resist the amendment.
4.58 p.m.
The LORD CHANCELLOR: My Lords, before the noble Lord, Lord McCarthy, replies, there is a point which I feel bound to put before the House. In the 1975 legislation the noble and learned Lord will remember that he and I had a difference of opinion about the European Convention on Human Rights. I begged him then to consider its implication on the legislative provisions that he was then supporting. He told me in effect, with his usual courtesy, that I was not right. The result was the humiliating report of the European Commission in the case of the three railway men.
I ask the noble Lords, Lord Wedderburn and Lord McCarthy, to consider seriously not merely the eloquent pleas from almost every quarter of this House, and I ask the noble Lord, Lord Lee of Newton, to consider not merely the eloquent pleas from every quarter of this House, but the provisions of the European Convention on Human Rights. When one is dealing with a closed shop situation, one is not dealing simply with a private club with rules of its own, admirable officers, and operating procedures in private which may be just. I ask the noble Lord, Lord Lee, particularly to remember this. Article 6(1) of the European Convention has these words:
"In the determination of his civil rights and obligations everyone is entitled … to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly, but the press and public may be excluded for all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice".
I repeat:
"In the determination of his civil rights everyone is entitled … to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly …".
Well, I know what I think about that. I think that the noble Lord's amendment is inconsistent with the European Convention.
Lord McCARTHY: My Lords, I am afraid we cannot agree to withdraw this amendment. I should like to start very quickly because I do not want to retrace the whole argument as that would abuse the time of the House. It seems to me that the noble Earl, Lord Gowrie, really did not answer the amendment. It is rather strange to say that he would have answered the amendment, because I thought that was the job of the noble and learned Lord the Lord Advocate and of the noble Lord, Lord Lyell. What he sought to answer was why we should not put down this amendment on Clause 4; and I would have thought that, having listened to him, the noble Lord, Lord Robbins, can see what we are up against.
The fact is that we cannot make any dent in this clause even in the most reasonable way. We cannot make any dent in it and therefore, despite the fact that we are not saying—and with very great respect this brings me to what was said by the noble and learned Lord the Lord Chancellor—although we are not saying that there should not be law in this field, indeed there is law in this field. There is law in the common law in this field. If people are expelled unfairly from unions, then they are brought before the common law and given very considerable rights under the ordinary common law; and we have no desire to affect that. This is where the human rights come in, and if they do not come in there we shall discuss it very fully when we come to Clause 7. That is my answer to him.
May I say to the noble Lord, Lord Houghton, that the Independent Review Committee is alive and well and living in Congress House, but it is not for me to defend what it does. Let me say to the noble Lord, Lord Boyd-Carpenter—and this comes back to the same point that I made earlier about the High Court—the fact is that the case he gave could very easily have gone before the common courts of this country and the decision would probably have been the same. In the case that he gave, in fact, of course, it was the union, by conciliation, as I understand what he was saying, which in the end gave the man his card back; and of
902
course you could not get a card back under this clause.
Lord BOYD-CARPENTER: My Lords, I am much obliged to the noble Lord for giving way. In suggesting that my constituent should have gone to the High Court, would he just tell me how long that would have taken and what would have happened to him, already unemployed, in the interim?
Lord McCARTHY: My Lords, I do not know how long it would take if you went through this procedure. I am not able to say how long these things take. What I am saying is that in fact the case he was talking about was dealt with by conciliation and the man got his card back. He might have got his card hack from the Independent Review Committee if I am allowed to say that, because we do give cards back—but you will not get your card back under this clause. All you will get is compensation. Therefore, for all these reasons, I am afraid we must press this amendment to a Division.
Lord HARMAR-NICHOLS: My Lords, before the noble Lord sits down, could I ask him: does his argument mean that he does not believe that anybody ought to have their common law rights removed from them by statute?—because it would be important to have his view in view of later amendments.
Lord McCARTHY: My Lords, when we raised the very difficult problem about what would be the relationship between the tribunals and the common law courts in respect of trade union expulsions, I understood noble Lords on the opposite side of the House to say that in some way these would continue. I would want them to continue. My problem is what their relationship will be; but that is their problem.
5.5 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided:
Contents, 61; Not-Contents, 167.

CONTENTS

Ardwick, L.

Hatch of Lusby, L.

Ross of Marnock, L.

Aylestone, L.

Henderson, L.

Sainsbury, L.

Bacon, B.

Howie of Troon, L.

Shinwell, L.

Balogh, L.

Janner, L.

Stedman, B.

Beswick, L.

Leatherland, L.

Stewart of Alvechurch, B.

Birk, B.

Lee of Newton, L.

Stewart of Fulham, L.

Blease, L.

Llewelyn-Davies of Hastoe, B.

Stone, L.

Blyton, L.

Lloyd of Hampstead, L.

Strabolgi, L.

Boston of Faversham, L.

Lovell-Davis, L.

Strauss, L.

Brockway, L.

McCarthy, L.

Taylor of Gryfe, L.

Bruce of Donington, L.

McGregor of Durris, L.

Taylor of Mansfield, L

Collison, L.

MacLeod of Fuinary, L.

Underhill, L.

Darling of Hillsborough, L.

Morris of Grasmere, L.

Wallace of Coslany, L. [Teller.]

David, B.

Northfield, L.

Denington, B.

Oram, L.

Wedderburn of Charlton, L.

Elwyn-Jones, L.

Pargiter, L.

Wells-Pestell, L.

Fulton, L.

Peart, L.

Whaddon, L.

Gaitskell, B.

Phillips, B.

White, B.

Glenamara, L.

Plant, L.

Winterbottom, L.

Goronwy-Roberts, L.

Ponsonby of Shulbrede, L. [Teller.]

Wootton of Abinger, B.

Hale, L.

Wynne-Jones, L.

NOT-CONTENTS

Ailesbury, M.

Fairfax of Cameron, L.

Mackay of Clashfern, L.

Airedale, L.

Falmouth, V.

Macleod of Borve, B.

Alexander of Tunis, E.

Ferrers, E.

Mais, L.

Allen of Abbeydale, L.

Feversham, L.

Mancroft, L.

Alport, L.

Forester, L.

Marley, L.

Amherst, E.

Fraser of Kilmorack, L.

Massereene and Ferrard, V.

Amory, V.

Gainford, L.

Merrivale, L.

Ampthill, L.

Garner, L.

Meston, L.

Auckland, L.

Geddes, L.

Middleton, L.

Avebury, L.

Gibson, L.

Monson, L.

Avon, E.

Glenkinglas, L.

Montgomery of Alamein, V.

Balfour of Inchrye, L.

Godber of Willington, L.

Morris, L.

Banks, L.

Gore-Booth, L.

Mottistone, L.

Barnby, L.

Gormanston, V.

Mountgarret, V.

Barrington, V.

Gowrie, E.

Mowbray and Stourton, L.

Bathurst, E.

Gray, L.

Murton of Lindisfarne, L.

Bellwin, L.

Grey, E.

Netherthorpe, L.

Berkeley, B.

Gridley, L.

Norfolk, D.

Bessborough, E.

Grimston of Westbury, L.

Northchurch, B.

Blake, L.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Nugent of Guildford, L.

Boothby, L.

Nunburnholme, L.

Boyd-Carpenter, L.

Halsbury, E.

Onslow, E.

Bridgeman, V.

Hampton, L.

Orkney, E.

Brookes, L.

Hankey, L.

Orr-Ewing, L.

Campbell of Croy, L.

Hanworth, V.

Penrhyn, L.

Chorley, L.

Harmar-Nicholls, L.

Porritt, L.

Clitheroe, L.

Harris of High Cross, L.

Rathcreedan, L.

Clwyd, L.

Hatherton, L.

Redmayne, L.

Cockfield, L.

Hawke, L.

Reigate, L.

Cork and Orrery, E.

Hayter, L.

Renton, L.

Cottesloe, L.

Henley, L.

Richardson, L.

Craigavon, V.

Hives, L.

Robbins, L.

Craigmyle, L.

Hood, V.

Robson of Kiddington, B.

Cromartie, E.

Hornsby-Smith, B.

Rochdale, V.

Davidson, V.

Hunt, L.

Rochester, L.

de Clifford, L.

Hylton-Foster, B.

Romney, E.

De Freyne, L.

Ilchester, E.

Rugby, L.

De La Warr, E.

Kemsley, V.

St. Aldwyn, E.

De L'Isle, V.

Kilmarnock, L.

Saint Oswald, L.

Denham, L. [Teller.]

Kimberley, E.

Salisbury, M.

Dormer, L.

Lauderdale, E.

Saltoun, Ly.

Drumalbyn, L.

Lindsey and Abingdon, E.

Sandys, L. [Teller.]

Duncan-Sandys, L.

Linlithgow, M.

Seebohm, L.

Dundee, E.

Lloyd of Kilgerran, L.

Sempill, Ly.

Ellenborough, L.

Long, V.

Shannon, E.

Elliot of Harwood, B.

Lyell, L.

Sharples, B.

Elton, L.

McAlpine of Moffat, L.

Sidmouth, V.

Ely, M.

MacAndrew, L.

Simon, V.

Exeter, M.

McFadzean, L.

Soames, L. (L. President.)

904

905

Spens, L.

Thorneycroft, L.

Vivian, L.

Stamp. L.

Torphichen, L.

Wall, L.

Strathcarron, L.

Trefgarne, L.

Ward of Witley, V.

Strathclyde, L.

Trenchard, V.

Willoughby de Broke, L.

Strathspey, L.

Trumpington, B.

Wolfenden, L.

Swinton, E.

Vaux of Harrowden, L.

Worcester, Bp.

Teviot, L.

Vickers, B.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
Clause 5 [Compensation]:
5.15 p.m.
Lord McCARTHY Lord McCARTHY moved Amendment No. 5:
Page 6, line 34, at beginning insert ("Subject to subsection (1A) below,").
The noble Lord said: My Lords, I should like with this amendment to take Amendment No. 6, from the point of view of explanation, since it is Amendment No. 6 which contains the substance of what we are trying to do. The House will remember that when we debated Clause 4 in Committee, we sought to limit the effect of subsection (2) which included the phrase, "or is seeking to be", because we thought that that phrase would widen unduly those who were covered by the clause, so as, in effect, to bring them within the ambit of the clause even if there was no prospect, or no likelihood, of them having any job in a closed shop area. We were unsuccessful in that regard, and so we are returning indirectly to the issue of the ambit of the clause as we now come to Clause 5 on compensation.
We are suggesting—and here the substance of what we are suggesting is in Clause 6—that we should insert a sentence or two to suggest that any
"person whose complaint has been declared to be well-founded"—
that is to say, under Clause 4
"shall not be awarded compensation"—
that is to say, under Clause 5—
"under this section unless he shows either that he was dismissed from employment or that he was deprived of the likelihood of being engaged by an employer by reason of, or where there was more than one reason by reason mainly of a contravention of subsection (2)".
So that compensation would be limited, in effect, to circumstances where there was a likelihood of people getting a job inside a union membership agreement area.
The argument for this is that whereas there might be a case—though we did
906
not accept it in Committee—for someone going to a tribunal to get a declaration, for example, that he should be admitted or readmitted to a union where he was merely seeking to be in employment within the area of the terms of Clause 4, without there being the prospect of an actual job, surely it is only logical to limit the possibility of compensation to the area where there is an actual prospect of job loss or, indeed, where there is some likelihood of job loss. Otherwise, compensation would be, as it were, for potential or possible job loss, and we suggest that it might be extremely difficult for the tribunals to calculate what would be the appropriate compensation. Therefore, we move this very mild amendment. My Lords, I beg to move.
Lord MACKAY of CLASHFERN: My Lords, if I may, I will take Amendments Nos. 5 and 6 together, as the noble Lord, Lord McCarthy, did. Where the individual in question has been admitted or re-admitted to the union after a declaration by a tribunal and he seeks compensation, the compensation awarded by the tribunal will be that considered,
"appropriate for the purpose of compensating the applicant for the loss sustained by him"
in consequence of the exclusion or expulsion from the union. Your Lordships need hardly be reminded that industrial tribunals are sensible tripartite bodies, well versed in industrial relations matters and well capable of deciding what level of compensation is appropriate in each case they are considering.
What this amendment seeks to do is to impose upon them what, in our submission, is an arbitrary restriction. If the person in question has not been dismissed from his employment, or lost his chance of employment because of the exclusion or expulsion, his loss may be very small and the tribunal award will reflect this. But surely it is quite wrong that the industrial tribunal should be barred from making any award in such circumstances. The individual might have suffered loss, and quite considerable loss, without being

907
dismissed. For example, he might have been suspended from his job while his complaint was proceeding, perhaps receiving full pay but maybe missing regular additonal pay and bonuses through overtime or incentive schemes. This sort of loss should not be ignored. Surely it would be much better to have a general formula of the kind in the Bill without arbitrary restrictions of this sort.
The same consideration would apply to the Employment Appeal Tribunal enjoying the same character. In this case, the formula is "just and equitable, in all the circumstances", and in our view, it is important that this generalised formula should be adhered to. It is quite easy to envisage cases where the individual will still be kept in his job because the employer values his services; but having been deprived of his union card, his prospects elsewhere in his trade or profession may be very bleak as a result of the union's decision. So we say that the Employment Appeal Tribunal should not be precluded from awarding compensation to the individual specified in the amendment. The individual, through being denied union membership, might not lose his current job but, particularly in a heavily unionised industry, he might be jeopardising his whole career if he ever moved from that job. We cannot see why, in that situation, he should not be entitled to the compensation that this amendment would have the effect of debarring. Accordingly, I hope that your Lordships will not feel inclined to support the amendment.
Lord McCARTHY: My Lords, in view of the lateness of the hour and the length of the Marshalled List, I withdraw this amendment.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved.]
Clause 6 [Determination of fairness of dismissal]:
[Amendment No. 7 not moved.]
5.23 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 8:
908
Page 8, line 18, at end insert—
("Provided however that the burden of proof that the employer acted unreasonably shall not rest upon the employee.").
The noble Lord said: My Lords, we now turn to the clause relating to unfair dismissal and to a subject which has progressed, through discussion in another place and your Lordships' Committee, to a point where there is much common ground. At the moment, it is agreed on all sides that the various burdens of proof under Section 57 of the Employment Protection (Consolidation) Act 1978 in an unfair dismissal case first apply to the employee to prove his dismissal and, secondly, apply to the employer-respondent whose onus is to prove one of what are sometimes called the "O.K." reasons for the dismissal, such as lack of capability, misconduct, redundancy or some other substantial reason. Then, in the unfair dismissal case, comes the crunch issue as to whether the dismissal is unfair, which to abbreviate it to one word, means whether it is unreasonbale in the circumstances.
For the last six years, the burden of proving that the dismissal on this third point is reasonable has been on the employer. In Committee my noble friends and I advanced reasons why that should be so. The Government rejected our case and we are not making it again. The Government wish in this Bill to change the words in the relevant section to the words as they stand in Clause 6, so as to allow the decision to be
"determined in accordance with equity and the substantial merits of the case".
The issue which arose in your Lordships' Committee was that the Government maintained, as they have done consistently from the beginning of their working paper proposal, that their wording would mean that the legal or persuasive burden of proof would be in the middle and would not rest on either side. The noble and learned Lord the Lord Advocate put that point to the Committee and suggested that the onus of proof was not very important. On 10th June 1980, at col. 267, he said:
"I, personally, do not see that there is need for an onus of proof"
in such a case. In Committee we argued—in my submission, with good legal authority—that in an adversary system

909
of the kind which the tribunal is, it is impossible to have a neutral or middle burden of proof. If the issue has to be tested, we suggested that when you come to the crunch issue and suppose that both sides are silent, then in proceedings of this kind, as opposed to certain foreign jurisdictions, one side will win and one side will lose, and the side which will lose will be the party upon whose shoulders the persuasive, or what is sometimes called the legal burden of proof, lies. It appears, as we saw in Committee, that we cannot persuade the Government of this. They say that the burden of proof will be in the middle—that is, not resting on either side. We have argued consistently, both in another place and here in Committee, that that cannot be so.
If we now accept the Government's statement, and if they accept that our fears are at least reasonable, then to add to the clause a proviso that the burden of proof does not lie upon the employee—which is where it would lie, in accordance with our logic, but in accordance with theirs it does not lie upon the employee—would surely calm the fears, and they are very real fears, in the trade union movement and among workers generally about the change in the burden of proof. They know very well the difficulty of proving the point of unreasonableness in the face of the lack of information that they have about the beliefs of the employer. In your Lordships' Committee I cited a number of cases where those beliefs of the employer are the test of his reasonableness.
Therefore it is, in our submission, a perfectly reasonable proviso to add to the clause. It does no violation to the Government's belief. They believe that the burden of proof does not lie upon the employee and will keep their wording that it shall be determined in accordance with equity and the substantial merits of the case. But since there is a doubt—and not a wholly unreasonable doubt—as to whether that can really be done, this is an amendment which I beg to move in the hope that the Government can do something along these lines.
Lord MACKAY of CLASHFERN: My Lords, as the noble Lord, Lord Wedderburn of Charlton, has said, we have already been over this ground. I certainly appreciate the attempt he has
910
made to move somewhat in our direction in the amendment which he has now proposed. Perhaps the most important point which he raised in supporting the amendment was the reference to the adversary system in the tribunal as distinct from a more inquisitorial system. Perhaps the crux of the matter between us is whether, when it gets to the stage of determining whether or not the reason proved for the dismissal is reasonable, the tribunal then has the responsibility of making the adjudication. No question of onus should arise. At that stage the adversarial character of the system is very much less in evidence than it might be at earlier stages, and the tribunal takes over as having a responsibility to decide the matter. Accordingly, the point which the noble Lord makes is not good.
In our submission, to accept the amendment would imply the existence of an onus which we are very strongly disposed to try to get rid of. Accordingly, I doubt very much whether, even from that point of view, apart from any other, the amendment would be an improvement. We believe, as I said before, that there are very few cases in which the formal onus question is of importance. However, the way the onus is expressed in the present legislation is of supreme importance. The department of my right honourable friend the Secretary of State for Employment has received many representations to the effect that the present onus of proof means that employers believe that they are guilty until proved innocent. They are very concerned about the implications that the formal position has for the evidential position. Of course, I quite accept that the terms "guilty" and "innocent" are inappropriate to unfair dismissal proceedings, but it is not easy to convince employers of this. Instead—and I believe this is generally the view—the attitude of employers to the legislation as a whole is coloured by what they believe to be a manifest injustice in the way that the onus hitherto has been expressed. This attitude and the fear engendered by it can be the determining factor in an individual employer's decision whether to recruit an extra worker or not.
Encouraging employers to take on more workers must be our overriding objective and that is why we prefer to retain what has been called the "neutralised onus of

911
proof" or the present phraseology which does not really admit the existence of an onus of proof at all at this stage of the determination. Accordingly, I would suggest to your Lordships that our formulation is better to achieve the result. I appreciate the movement in the position of the noble Lord, but I ask your Lordships not to accept even this amendment.
Lord WEDDERBURN of CHARLTON: My Lords, in view of what the noble and learned Lord, the Lord Advocate, has said, I think it is incumbent upon me to reply. There are really three points in what he said. First, he said that in the industrial tribunal system the adversarial character of the proceedings is less in evidence than in some other courts, and with that I would agree. But to build upon that the concept that there is no onus of proof involved in relation to the issue of reasonableness surely flouts the very fundamental description of the tribunal which has been put before your Lordships' House earlier today, of the Court of Appeal's description of the tribunal as an "industrial jury". In putting matters to a jury there has to be an issue, and the onus of proving certain matters in relation to that issue is on somebody's shoulders. I appreciate that the tribunal try to act in a very informal way, but from this side of the House one cannot accept that that is right.
Secondly, I was sorry that the noble and learned Lord, the Lord Advocate, went over the ground about businessmen writing to complain that they were found guilty before they were proved innocent, because we covered that ground in Committee. I will not try to repeat all the things that were said then, although I have all the figures here, but he will know as well as I that my reply to his argument on that front would be what it was in Committee, namely, that every single survey which has been done by every single independent organisation, including the Department of Employment, has shown that this is not an area of complaint on the part of businessmen, even small businessmen, when it is independently investigated.
However, I see that the Government are not going to give way on this matter. I beg leave to withdraw the amendment, but in doing so I express my regret that
912
the Bill will change the law on unfair dismissal in a manner which, I predict, in certain types of situation will put an onus of proof upon an unfairly dismissed employee which he cannot possibly discharge and therefore where he will lose his compensation or other remedy. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Dismissal relating to trade union membership]:
5.35 p.m.
Viscount De L'ISLE Viscount De L'ISLE moved Amendment No. 9:
Page 8, line 28, leave out from ("objects") to end of line 30 and insert ("to being a member of any trade union whatsoever or of a particular trade union on grounds of conscience or other deeply-held personal conviction or genuinely objects to the political affiliation of a particular trade union.")
The noble Viscount said: My Lords, the Government have all along maintained that had the legislation now before the House been passed into law before the case of the three railwaymen came before the Commission of Human Rights the Government would not have had to defend it. That assertion requires some examination, since so far it has not been supported by argument. Throughout our debates the Government have relied on the bald assertion that the Bill brings our United Kingdom legislation into line with the Convention, but what a pity they did not seek the views of the Commission upon it! They could easily have done so if they had accepted the offer of the Commission to pursue a friendly settlement.
The Government, in their letter to the Commission of 21st September last, have themselves explained how this could have been done. Instead, the Government are I claiming the right to be the sole judge as to whether the Employment Bill meets the requirements of the Convention. Rather than to submit the proposals embodied in this Bill, to what the Government term the normal processes of friendly settlement, they have preferred to defend the case and to plead that the previous Government's legislation did not in fact violate the Convention. Clearly in framing this Bill the Government have not been moved mainly by devotion to the

913
principles of the Convention, which enshrines a number of rights which are guaranteed to individuals under that Convention, including the right of association. Rather they have been guided by the exigencies of their political situation at home. If it is proposed that the remedies happened to meet the provisions of the Convention, so much the better; if they do not, that is a problem for another day. If, in the process, this involves defending the case brought before the Commission, thus reconciling the irreconcilable, that is part of the burden which faces any party in office.
As the lesser of two evils, the Government have decided to maintain before the Commission that the Convention had not been violated and that the Government were not responsible for British Rail. The Commission's opinion is against them on both issues and that is why I am proposing this amendment to Clause 7. I believe that the wording of the amendment is consistent with the Government's own election pledges, I believe, too, that justice for numberless individuals who object to the political affiliations of particular unions will be in part at least achieved.
The Commission, in expressing its opinion that there was a violation of Article 11(1), said:
"As regards the individual to whom the rights mentioned in article 11 are guaranteed, these words imply that the worker must be able to choose the union which in his opinion best protects his interests, and if he considers that none of the existing unions does so effectively, to form, together with others, a new union".
The report then continues with these words:
"This is particularly important since unions, as these cases show, may have political affiliations. It is not in dispute that the applicants joining the particular unions available would have had to sign declarations which they could consider to have clear political implications".
The Department of Employment's own interpretation of the words "on grounds of deeply held personal conviction" was made plain beyond peradventure in the notes on the Employment Bill which were issued when the Bill was printed, namely, what was said about Clause 6, now Clause 7.
"This new exemption is not intended to cover those with trivial, superficial or transitory objections to union membership".
The notes continue:
"Nor is it intended to cover those whose objections stem from calculations of financial or other personal advantage, or those with solely political objections to membership".
In this context it must be remembered that at Strasbourg the present Government did not resile from the previous Government's contention that freedom of conscience is a narrow concept of a religious or quasi-religious nature. This interpretation is clearly not broad enough to include objections, however legitimate, on political grounds. The House may remember its Lewis Carroll:
"'When I use a word', Humpty Dumpty said in a rather scornful tone, 'it means just what I choose it to mean—neither more nor less'. 'The question is', said Alice, 'whether you can make words mean so many different things'. 'The question is', said Humpty Dumpty, 'which is to be master. That's all'.".
It is not unknown for departments to contradict themselves when their interests so indicate, although it is usual for them to be oblique in doing so. My view is clear; in matters of doubt, or where Ministers appear to be self-contradictory or evasive, the mastery should lie with Parliament. If Parliament itself is in doubt, it must be the industrial tribunals who have to interpret our language.
Having persisted in Strasbourg in defending the case against their predecessors' legislation, the Government now, in my view, have a duty punctually to comply with the resulting opinion of the Commission. I think the House has a duty to press them to do so, because the country looks to your Lordships' House to be an interpreter of its liberties. Having heard the noble and learned Lord on the Woolsack refer with approbation to Article 6 of the convention in another context, I am hopeful that we shall be able to persuade him to accept our amendment, which seems to be in concert with the intentions of the Commission and very much necessary by the nature of the Bill. I beg to move.
5.43 p.m.
Lord HARRIS of HIGH CROSS: My Lords, I rise from the Cross-Benches to second the amendment moved by the noble and gallant Viscount, Lord De L'Isle, for which I may say support has been pledged and promised from many parts of this House. I shall not develop the European issue, which I think will be

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taken up by others. I want to refer to wider considerations. I make no bones that I would have preferred a rather stronger amendment to breach the closed shop, which in my view is the key to the abuse of power by trade unions, and I was enormously impressed by the contribution from the noble Lord, Lord Houghton of Sowerby, who told us how a good union, the Inland Revenue Staff Federation, with a good man in charge could maintain membership of 90 or 95 per cent. without the recruiting sergeant of legal enforcement of the closed shop.
It seems to me that the nearest we have in this country to a consensus is that the closed shop should be weakened or destroyed, and it is interesting that at the time of the last election an Opinion Research Centre poll was conducted which in the vernacular had a question almost anticipating the wording of this subsection as it would be under this amendment. The question asked by ORC was:
"Do you agree or disagree that people who refuse to join a union for moral, political or other strong reasons should be sacked?"
The answers showed that 85 per cent. of the sample disagreed, and if you single out trade union members responding to the question, 81 per cent. of trade union members disagreed that objectors should be sacked.
The general principle is widely accepted, if I may say so without disrespect, even on the Liberal Benches. But always there are objections to the practical implications. In the Committee, the noble Lords, Lord McCarthy and Lord Wedderburn, advanced three counter-arguments to the general principle that the closed shop should be set aside. I am going to summarise the arguments and, if I may, summon up briefly witnesses who should carry special conviction on the Labour Benches. The first argument of the noble Lords at the earlier stage was that all workers benefit from union membership and therefore all should be made to contribute to the funds of the union—the so-called "free rider" plea.
My first witness is someone who would be perfectly at home sitting between the two noble and professional Lords on the Labour Front Bench, Professor Clegg. In an otherwise justly forgotten paperback which he wrote some 10 years ago called
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How to run an Incomes Policy, he wrote:"
"If the purpose of trade unions is to get more for their members, then it is possible to argue that trade unionism has been, and still is, a gigantic hoax. Of course, trade unions negotiate pay increases but pay increases also occur in industries and undertakings where unions do not negotiate. Pay goes up in countries where unions are strong and in countries where unions are weak".
The second counter-argument was that the demand for the closed shop sprang from what the noble Lords call the sense of "common obligation" to which union members and union leaders attach great importance. My second witness on this matter is a former chairman of the TUC, now a Member of this House, who said he did not:
"… believe that the trade union movement of Great Britain can live for much longer on the basis of compulsion. Must people belong to us or starve, whether they like our policies or not? No, I believe the trade union card is an honour to be conferred, not a badge which signifies that you have got to do something whether you like it or not. We want the right to exclude people from our union if necessary, and we cannot do this on the basis of 'belong or starve'."
Those words were spoken in 1955 by Mr. Geddes, now Lord Geddes of Epsom, and I did write to tell him that I had this quotation in mind to use in this debate.
More recently—if you think 1955 is a long while ago, or you may think that was an aberration by a trade union leader—we had the testimony of a trade union leader I was personally proud to count as a warm friend, who was a predecessor of Mr. Bill Sirs as General Secretary of the Iron and Steel Trades Confederation, Sir Lincoln Evans, who wrote in a remarkable essay in 1970 entitled Responsible Trade Unionism as follows:
"Let the law-makers concentrate on three things: the legal enforcement of agreements, the right of anyone to belong or not to belong to a union, and means to take the brutality and violence out of picketing. The law can or should do no more nor less than this".
We come to the third counter-argument which is echoed by many businessmen and by some noble Lords on the Government Benches; the argument that efforts to prise open the closed shop would not be fully effective and would merely drive the closed shop underground. My final witness is none other than the noble Lord, Lord McCarthy, in his more scholarly guise, as author of a book entitled The Closed Shop published in 1964. On page 265 he addressed himself to the

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plausible argument that we should not try to correct an abuse because we may not always succeed. Against that view the noble Lord then quoted an American authority, Professor Seymour Martin Lipset, that in labour legislation at least:
"… the significance of law does not necessarily lie in the extent to which it is obeyed. One of its major functions is to set a moral code or standard which society considers proper but whose parts can be violated within certain limits … People may engage in illegal or immoral actions, but the fact that they know these actions are illegal reduces the extent to which they occur".
So, my Lords, I urge what I think is a modest amendment, as a significant widening of the grounds on which a worker can avoid joining a union or can abandon trade union membership—for example, after that notorious 14th May political day of action; he can not join or abandon a union and not be punished by dismissal without compensation. It seems to me that in strengthening this clause we would, in the words of Professor Lipset quoted by the noble Lord, Lord McCarthy, some years back, be making explicit a standard of freedom in which our fellow countrymen overwhelmingly believe. It is a standard which, as I have said at earlier stages, is upheld widely in Europe; it is upheld most specifically in Germany, where open and non-political unions have proved far more effective than British trade unions in advancing the true welfare of their members.
Lord McCARTHY: My Lords, before the noble Lord sits down I should like to say that it is nice of him to quote me, however selectively, but will he quote himself again? He mentioned, I think, the ORC Poll, but as I understood it—and I am asking for clarification here—he conflated three different reasons which people had for saying that they should not be in a closed shop. I think he said: moral, political and conscience; and he added the three reasons together and made 85 per cent. That is not fair—is it?—for one question.
Lord HARRIS of HIGH CROSS: My Lords, I was quoting an ORC Poll conducted in April 1979. The single question was—
Lord McCARTHY: My Lords, there were three reasons.
Lord HARRIS of HIGH CROSS: Yes, my Lords, but the single question was:
"Do you agree or disagree with the following: People who refuse to join a union for moral, political or other strong reasons should be sacked?"
I was arguing that moral, political and other strong reasons was not a bad summary of what this subsection would say if we accepted the amendment we are now debating.
Lord DUNCAN-SANDYS: My Lords, those who have tabled this amendment consider that if an employee refuses to join a trade union on the ground that it is affiliated to a political party with which he disagrees, and that it as a result he is deprived of his job, he should be entitled to claim compensation for unfair dismissal. The law as it now stands does not provide that protection, and its failure to do so is regarded by the European Commission of Human Rights as constituting a breach of the obligations accepted by Britain under the human rights convention.
The question which concerns us is whether the words "deeply-held personal conviction" in Clause 7(2) of the Bill adequately remedy this deficiency in the existing law. This is a matter of legal interpretation on which serious doubts have been expressed. As has been pointed out by the noble Viscount, Lord De L'Isle, the Notes on Clause 7 originally issued by the Government in order to explain to us the meaning of the Bill stated that the words "deeply-held personal conviction" did not cover purely political convictions. On the other hand, when the Government issued a revised edition of these notes, they entirely omitted this reference to political convictions—a most important matter.
It would seem, therefore—and I can think of no other explanation—that between the issue of the two versions of the explanatory notes the Government must have had doubts on this point. In order to clarify the position I should like to ask the noble and learned Lord the Lord Chancellor, when he replies to the debate, if he would be good enough to answer two specific questions. First, will he say whether it is quite definitely the Government's intention that the phrase, "deeply-held personal conviction" should include political convictions? If—as I sincerely hope—the answer is an unqualified, "Yes", then I should like

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to ask what is the objection to making this clear beyond doubt by accepting our proposed amendment.
Earl DE LA WARR: My Lords, for the avoidance of doubt I should like to start by saying that I am on totally common ground with my noble friend Lord De L'Isle, my noble friend Lord Duncan-Sandys and the noble Lord, Lord Harris of High Cross, in that I, like them, hate and detest every aspect of closed shops and believe them to be monstrous intrusions into the personal liberty of men and women. But, having said that, I must now stick closely to the amendment. I must congratulate my noble friend Lord Duncan-Sandys, in that he has actually talked to the amendment. If I may say so with respect, my noble friend Lord De L'Isle and the noble Lord, Lord Harris of High Cross, ranged across somewhat wider ground.
I feel that I must take up my noble friend Lord De L'Isle on the question of the three railwaymen—about which my noble and learned friend will be talking later—because for the life of me I cannot see how the European Court, whose avenging angels are sitting almost now to consider these very weighty matters, can be influenced one way or the other by this little change that has been produced by my noble friend. Indeed, my noble friend has gone in for quotations so I shall go in for one also and use the words of the immortal Burns and say that this amendment appears to me, after what we have heard from my noble friend, to be no more than a wee tim'rous mousie.
The noble Lord, Lord Harris of High Cross, went little further in giving any real arguments as to why he thought that this little amendment would do so much as regards the great sweeping objections which he produced to the whole principle of the closed shop. My noble friend Lord Duncan-Sandys has asked some very specific questions but he has not asked them of me. I look forward to hearing my noble and learned friend's answer.
However, before I conclude, I should like to draw your Lordships' attention to a document entitled Industrial Relations Legal Information Bulletin produced by Mr. Michael Rubenstein. These periodicals
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are looked at very carefully by chief executives, and certainly by most directors and personnel managers in industry, because they are their bible, as it were, towards how to conduct industrial affairs when they impinge on the law.
I should like to read one extract which deals with this clause. It is headed "Grounds for objection". It says:
"The most important decision taken by the Government was to provide protection for those who object to a particular trade union. The words 'grounds of conscience or other deeply-held personal conviction' indicate that the objection can be on grounds other than conscience and a political objection to the policies of a particular union will almost certainly suffice".
He ends by saying:
"Although the new statutory test is a subjective one, unless the courts construe the words more narrowly than their ordinary meaning (and it is difficult to see the Court of Appeal taking that road), it is improbable that many employees—particularly if they engage a legal representative to structure their case—will be unable to articulate a deeply-held personal conviction for not joining a particular union".
That is just one opinion, but it is the opinion of a very learned man whose views are listened to with great respect by very many people who are concerned with these matters in industry. I therefore beg leave to commend his views to your Lordships. It is for that reason and the other reasons I have adduced that I would suggest to the Government that they need take no notice of this amendment and that they should leave the Bill in this respect precisely and exactly where it stands now.
Lord ROBBINS: My Lords, I will not detain your Lordships for more than two or three minutes, but I should like to ask the noble Earl, Lord de la Warr, on what grounds he bases his objection to the words which have been added. He described it as a poor little mousie.
Earl DE LA WARR: A timorous little mousie.
Lord ROBBINS: A timorous little mousie. Why be afraid of it? Why be afraid of being explicit with something which, on his own confession, he thinks could be constructed by a clever lawyer, and would be constructed by a clever lawyer defending a person who had objected on grounds of deeply held

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personal conviction? I find myself very much perplexed by the attitude of the noble Earl.
I feel justified in interposing at this stage. I myself would go all the way with the noble Lord, Lord Harris of High Cross. I go all the way with the declaration of the noble Earl at the beginning of his oration. I dislike the closed shop. I dislike the penumbrae of producers' monopoly which inheres in the idea of the closed shop; and not only in the idea of the closed shop but in certain professional practices, too. Frankly, I am completely perplexed at what the noble Earl said at the conclusion of his speech when he exhorted the Government to pay no attention to this elucidation of a point which he himself has emphasised. I make this protest, having in debate on the Second Reading actually praised the Government for proceeding gradually. But proceeding gradually is one thing; explaining the elucidation of the Government's own phrase which might be put on it by a clever lawyer is another thing. My perplexity remains.
6.3 p.m.
Lord HOUGHTON of SOWERBY: My Lords, we must bear in mind that what we are debating is the question of fair or unfair dismissal, because that is the issue in this clause. This Bill is providing—
Lord DUNCAN-SANDYS: My Lords, may I interrupt the noble Lord? I do not think that is the issue. The issue is: what do these words mean?
Lord HOUGHTON of SOWERBY: My Lords, I am coming to that in a moment, because in my opinion this debate has already gone far wider than the terms of the amendment and much wider than the subject we have under discussion, which is: should dismissal as the result of a closed shop agreement be regarded as fair or unfair dismissal? In this clause we are providing conditions which would make it unfair dismissal, and the grounds for making it unfair dismissal would be a conscientious objection on religious grounds to belonging to a union, or a deeply held personal conviction against doing so, or an objection to joining a particular union. This is what we are talking about. I think if
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we widen this to include the European Convention, the attack on the closed shop and other matters that have been raised in the debate so far, we shall get into very deep water indeed.
I would say that the debate so far is giving weight to the view that was taken in another place when this matter was being debated there some years ago, that when once one gets away from religion as the conscientious basis for claiming exemption from the conditions of the closed shop one gets in very deep water indeed. What I was advocating the whole time, as noble Lords will remember, was for the right to have a secular conscience. That was what I was advocating—that it was possible to have a deeply held personal conviction as strong as anybody's conscience based on religious grounds. If we get away from that, then I fear we shall be in serious difficulties.
The amendment says that the deeply held personal conviction shall be extended to include objection to the political affiliation of a particular trade union. Amendment No. 11, which we shall come to later, takes exactly the opposite view. So we have the two opposing points of view—one which says that politics can be brought into it and the other which says they cannot. I think that in defining a deeply held personal conviction we can do no more than let words stand on their own when they come to be considered by the tribunal concerned in relation to a particular case. If we attempt to extend the meaning of these words we shall only confuse ourselves and the tribunal as well. Men of wisdom, experience, impartiality and integrity will arrive at the best judgment they can as to what is a deeply held personal conviction. In certain circumstances that conviction may be influenced by one factor more than another.
As I said earlier, what distresses me is that if one professes a particular religion one's viewpoint is accepted without further inquiry or argument, but if one says one has a deeply held personal conviction one is questioned, it is probed into, there is an attempt to extend the meaning of the words in one direction or to prohibit them from being extended in another, and one wishes to God one had a religious conscience instead of a deeply held personal conviction!

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Tribunals are there to judge these matters. I take your Lordships back to the tribunals which had to hear appeals by conscientious objectors for exemption from active combatant service. Not always did they accept the plea of religion. They went into that sometimes, because to some people religion and the beliefs that are attached to particular denominations are sometimes a veneer and not a deeply held personal conviction. On the other hand, a deeply held personal conviction has no veneer; it has no label; it has no credentials; it has to stand on the meaning of words in relation to the circumstances and beliefs of a particular individual. So I plead for rejecting this amendment, as later I shall plead for the rejection of Amendment No. 11, because I think politics have to be left out of it altogether in definition. Leave the tribunal to decide what in their view contitutes a deeply held personal conviction.
I should like to make one final point. We must not overlook the provisions of the Trade Union Act 1913, which gives to any member of a union the right to claim exemption, without giving any reason, from the payment of the political levy. If this amendment was to confer upon all those who have claimed exemption from payment of the political levy a prima facie claim to be covered by its terms, then there is not the slightest doubt that we should plunge the whole trade union movement into confusion and turmoil at the present time.
We should not be able to get through that situation merely by passing an amendment to this Bill. Of course, it is true that the Trade Union Act 1913 did not deal with the question of the use of the name of the union by those who paid the political levy and who could be affiliates to a political party. That may have been a shortcoming of the legislation at that time. Indeed, it is possible in theory and it may be quite near to it in practice in some cases, that where less than one half of the members of the union are contributing to the political levy, nevertheless, the name of that union can be used in all conversation and publicity as if the union were affiliated to the political party; whereas the affiliates are those who are subscribers to the political fund, although under the law they are given the
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right to use the name of the organisation because by vote they have included political objects within the objects of the union. That makes it perfectly respectable as a denominational unit from a political point of view.
Therefore, there are serious difficulties here if we stray from the straight and narrow, and the straight and narrow is to stick to the words that are in the Bill. Many attemp's have been made to put them there; many criticisms have been made of the possibility of the tribunal having great difficulty in deciding what the words mean. But unless we confine ourselves to the religious basis for conscience and do not stray beyond it, we are bound to embrace some of these problems in the interpretation of the words and the decisions of tribunals. Therefore, with great respect to your Lordships, I think that the hardliners should go to cover and the hawks should go to rest, and allow men and women of commonsense and goodwill to reject this amendment and get on with the Bill.
Lord MONSON: My Lords, before the noble Lord, Lord Houghton, sits down, perhaps I could put one point to him. At the beginning of his speech the noble Lord implied that the European Convention on Human Rights was an irrelevance. With respect, it is not an irrelevance. The United Kingdom was one of the first countries to ratify the convention, which of course, has nothing to do with the EEC. This amendment is merely an attempt to ensure that the United Kingdom lives up to its solemn obligations.
Lord HOUGHTON of SOWERBY: My Lords, I think that the noble Lord will find from the record that I did not use the words "irrelevant" in relation to the European convention. I do not think that I used the word "irrelevant" at all. I intended to say that the implementation of the convention to this and to other branches of our social and political life goes far wider than the narrower issue which is within the amendment before the House.
Lord ROCHESTER: My Lords, the Liberal Benches were mentioned by the noble Lord, Lord Harris of High Cross, and I feel that it is incumbent upon me

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to say just a few words, but they will be a few words. As I understood it, the noble Lord claimed that the principle underlying this amendment had the support of Liberals. To the extent that he meant that my noble friends and I had at Second Reading and at the Committee stage consistently said that we regard the principle of the closed shop as being intrinsically illiberal, he is right.
However, I also made it plain on both occasions that in my view at least it will not help to deal with the problem if legislative action is taken which goes a step further or a step faster than is acceptable to the general body of trade unionists. I do not propose to go on talking about the principle of this matter beyond saying that, but would rather deal with it briefly as a former practitioner in this field.
In my view—and the noble Lord, Lord Houghton, has made some reference to this—these two amendments in the names respectively of the noble and gallant Viscount, Lord De L'Isle, and the noble Lord, Lord McCarthy, illustrate very well the widely differing views on this matter with which the Secretary of State has had to contend in drafting this Bill. Viewing the problem from opposite poles, they both seem to me to suffer from an approach which is too narrow. One of the effects of the amendment of the noble Viscount is, if I may say so, that if it were implemented, in my view it would weaken and fragment the trade unions which, for better or for worse, we now have, when most people in industry think that we already have too many of them. Even as this subsection is at present worded—and here again I am in sympathy with what the noble Lord, Lord Houghton, had to say—in my opinion tribunals will have difficulties enough in determining what are genuine grounds of conscience or other deeply-held personal conviction for people not being members of particular trade unions, without having them added to further by the passing either of this amendment or, as I hope not to speak again on the amendment of the noble Lord, Lord McCarthy, his.
I should like to see this whole problem of trade union power tackled as constructively as possible by encouraging all those who are now members of trade
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unions to take a more active part in their proceedings, in electing their officers and in determining their policies. We should not then have to worry about the political affiliations or the political objects of particular unions, because the members themselves will have made sure from within that they are not controlled by people having alien political views. I am sure that this more positive line is the one on which we should concentrate, not least in welcoming the proposed code of practice on the closed shop so that it commands the widest possible support. Meanwhile, let us give this clause, as it now stands, a fair wind. Then we may at last be able to get on with the only thing that really matters in this field; the improvement of human relations in British industry.
Lord WEDDER BURN of CHARLTON: My Lords, to a degree this amendment is a discussion between the Government and those who frequently sit behind them plus some of the noble Lords on the Cross-Benches. But it is perhaps important to say one or two things from this side of the House. The noble Lord, Lord Houghton, has expressed so well the difficulties into which this Bill was bound to fall when it went beyond the line of religious objection in the closed shop situation, or at any rate beyond the line of religion and conscience for those who would not call themselves religious. The deeply-held personal conviction has always carried the difficulty about how far it will allow for political objection, and I shall not refer to the rather differing statements of the noble Earl and the noble and learned Lord on this matter, because it is very easy by a slight difference of phrase to give a different emphasis to the solution of that very difficult problem.
We of course would be against the objection being valid to a dismissal in a closed shop situation of this kind for the reasons that the noble Lord, Lord Houghton, has given so forcefully. To some extent, we would agree with the noble Lord, Lord Rochester, with whom I very much agree that the problem of democracy inside the trade union movement is a matter of great importance and the area through which the issues should be solved. I would also stress that since 1913 there has been in this country an accepted solution to a problem which

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besets some other trade union movements in different forms; namely, the relationship between the trade union movement and political activities.
An amendment of this kind could only be in the result—whatever the intention—a covert manner of re-opening the settlement of the Trade Union Act 1913. There have of course been differences over the years about whether there should be contracting in or contracting out, but the settlement of the Osborne case in 1913 I had thought had long passed the point of being re-debated. If noble Lords want to debate that again then they must put that down and open out the whole debate, because this amendment raises the issue of the place of the 1913 Act.
The other thing that I would wish from these Benches to put on record is a brief statement in connection with the report of the Commission on Human Rights in the case of the three railwaymen. I am very aware of two factors in doing this. First the time, and secondly the complexity of the issue—and the third factor being to my knowledge that the noble and learned Lord on the Woolsack is likely to speak after me. He will, I hope, therefore forgive me if I make the points broadly with references so that any noble Lords who do not agree with my statements can at least look them up.
First, the Commission's decision is not the end of the road in determining what is meant by Article 11 of the Human Rights Convention. The matter of course will go to the courts. I have little doubt that the Government themselves probably hope that at least a different form of reasoning will be used by the court even if the result is similar. I say that because there are various ways in which such an article can be interpreted. That is Article 11(1) giving right and freedom of association, including the right to form and join trade unions.
The minority in the Commission took what, in my view, is the sensible view that the ordinary meaning of "to join" cannot conceivably also include the right not to join. That was the view, interestingly enough, of the British member and of two others, including the Danish. It is not merely a matter of Euclidian logic what the right to join and the right to associate means; it is a matter which
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involves value judgments that often relate to an industrial culture as well as to a legal culture.
Secondly, the majority of 14 did not say what many noble Lords wished they would say, that the right to associate and the right to join implied a right not to join across the board. Indeed, in two places, in paragraphs 157 and 166, the Commission expressly says that it is not interpreting Article 11 as including a right not to join. In paragraph 165 the majority say that the situaution might well be different from the case before it had the workers been engaged after a union membership arrangement or a closed shop had been in operation.
Clearly they do not decide the case in what is sometimes called "the German manner", because German lawyers and trade unionists have, through the course of their thinking and development, accepted that the words "freedom to associate" implied the words "freedom to dissociate". The majority of the Commission say nothing of the kind, and in fact expressly reject that interpretation.
The decision of the Commission is based, in paragraphs 160 and 161, upon concepts which derive quite clearly from a culture which both legally and industrially is very different from the Scandinavian culture on the one side, the German and ours as well, from especially the French and Italian legal and industrial culture based upon political pluralism of unions; that is to say, based upon the concept that history has given us a communist union, a socialist union, what used to be a Catholic union but is now normally a radical and lay union as well; various unions of political denominations. Therefore, it is perfectly natural in that kind of culture and that kind of law. Indeed, the French constitution states that each person shall have the right to choose his trade union. Of course! Because if your trade unions represent different political parties then it is perfectly natural that that is the way you operate, and you do not have something like the 1913 Act.
The majority report is based on the concept that each worker should have the right to join or form any union that he wishes to associate in because of his political beliefs. As has already been pointed out in your Lordships' House, that concept if applied to the British situation

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would magnify multi-unionism in a manner which is quite absurd. I cannot believe that the Government, although they will wish for a similar result, will not wish to challenge the reasoning of the Commission when the matter goes to the court.
I add to that a second point which must be put upon record. The Labour Government before May 1975 advanced to the Commission the further defence, as it were, against the charge of breach of the convention, based upon Article 11, paragraph 2. That is the concept that the right of association and joining trade unions may be made subject to restrictions which are prescribed by law and necessary in a democratic society for the protection of the rights and freedoms of others. I appreciate that this Government do not agree with the political judgment of the previous Government on that matter, but it is a matter of regret that this Government withdrew that submission in their final submissions to the Commission.
It is a matter of regret that the present Government did not, as it were, allow the Commission at least to consider the submissions of the previous Government based upon the concept that the rights of individual trade unionists also must be balanced against the rights of non-unionists when one is considering, in particular, this rather strange concept to us of each man having the right to form his own political trade union. I can only hope that when the Government argue the matter before the court at least they might allow, perhaps by way of some amicus or in some other manner, that this argument be put to the court and not simply shaded from its eyes.
On that basis, having said something about the convention, I return to the basic point before your Lordships' House that we of course do not like the Bill in the form in which it is put forward in terms of deeply held convictions, but if deeply held personal convictions are to advance into the area of political objection then, as the noble Lord, Lord Houghton, suggested, the whole area of industrial relations will become a swamp into which this House and Parliament has helped to push it.
6.27 p.m.
The LORD CHANCELLOR: My Lords, it is perhaps time that I said
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something about this amendment. I emphasise the words in the sentence "about this amendment" because we are discussing an amendment the total effect of which, if I am right, would be to take the words of the Bill and to add to them
"genuinely objects to the political affiliation of a particular trade union".
No one will doubt the sincerity of my noble and gallant friend Lord De L'Isle, nor, if he will allow me to say so without seeming patronising, is there any noble Lord in this House who deserves both epithets better than the noble and gallant Viscount, Lord De L'Isle. Nor will anyone doubt the value of the impressive questions put to me by my noble friend Lord Duncan-Sandys. Before I sit clown !I answer both.
I must first point out, not only to the noble Lord, Lord Harris of High Cross, but to some other speakers, that if the object of this amendment is to widen the terms which we have chosen for the Bill so as to exclude the closed shop, this amendment does not say enough. If the object is, as my noble friend Lord DuncanSandys thinks, that it is to protect political convictions as such, he is just plain wrong. The amendment deals with an objection to the political affiliation of a trade union, and that is not the same thing as a political opinion. I shall come back to the political opinion later because my noble friend's questions related to political opinion, but the amendment does not relate to political opinions; it relates to political affiliations of a particular trade union, and I shall come to deal with this too.
No-one will complain that members from all sides of the House should have felt it proper to contribute to this debate because, at least in my view, this bundle of clauses, beginning at Clause 4 and continuing through Clause 7 to other clauses, gives rise to a debate about a particular application of human rights.
My noble and gallant friend has somehow persuaded himself that the Commission decided something different from what is in the Bill. He complained that the Government had not argued to the contrary and had not given reason to the contrary. I will try to persuade him that this is wrong, but I must tell him that he has not given, at any rate to me,

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any intelligible reason whatever for thinking that the words in the Bill do not in fact conform with the report of the Commission, for what it is worth; and to that I will come.
But I must first of all correct him on a point of fact. Of course, I do not know what went on before the Commission. Perhaps he does, but I do not, because I am told that what went on before the Commission is confidential. I am told categorically that it is quite incorrect that there could have been a friendly settlement, as he thinks there could have been, if the Government had submitted the Bill to the Commission's scrutiny. We in fact put forward for the applicants' consideration that the Bill exactly met their points, but the applicants—not the Commission—were unprepared to accept this. So on the facts my noble and gallant friend is in error.
Of course it is true that no friendly settlement can decide a point of law. It is also true that, as the noble Lord, Lord Wedderburn, said, the Commission cannot decide a point of law. The only thing which can decide a point of law is the court, and the case has not yet gone to the Court. Whether the Court will agree with the Commission or whether it will agree with the minority judgments, or if it agrees with either and on what grounds it will form its judgment of agreement, is totally uncertain, to my mind.
I must again correct what I think was a misunderstanding on the part of my noble friend, because he appears to have thought that what the Commission or the majority of the Commission decided was that in some way or another Article 11 prevented a closed shop. Here I must quote one sentence from the majority report, and one is enough. According to the Commission's interpretation, Article 11 neither prohibits nor allows the system of closed shops in general. That is all I can get out of it on that subject.
My Lords, so far as I am concerned this Bill, this bundle of clauses, is a bundle of clauses about human rights and of course the words in the Bill are intended to conform with the provisions of the European Convention. That is what they are there for, and I respectfully think that they do. In this part, the Bill is concerned
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about the human rights of those innocent third parties who, without fault of their own, have been caught up and injured by industrial strife, in this connection by the results of a closed shop situation. That is the clause with which we are dealing.
May I make the somewhat startling suggestion to my noble and gallant friend that instead of—and he will forgive my using the phrase—muddling himself up with the very difficult legal argumentation of the Commission, which, for the reasons I have given, he has got entirely wrong, he looks at the Convention itself? It was looking at the Convention itself which led me in this House to tell the last Government that I thought they would get into trouble with the Commission, and they did get into trouble with the Commission. I think I am entitled, therefore, to appeal to my noble and gallant friend to look at the words of the Convention with me, because I have some right to speak about it. I have proved right in the past, and I think I may be right in the present.
First of all, I invite him to look at Article 9, because if you look at the Bill you will see that it contain the words
"grounds of conscience or other deeply-held personal conviction".
Now, I may be wrong about this—one does get wrong after attending innumerable Shadow Cabinet meetings and Cabinet meetings, as those who have attended either will confirm—but I believe that I thought of those words "deeply-held personal conviction". I may be wrong, but they do not look to me like the words of a parliamentary draftsman; they look to me like the English language. I dare say if Mr. Merriam played them on the Basingstoke computer he would find that they were an authentic work of William Shakespeare.
But, my Lords, they mean what they say. They do not come from legal textbooks; they came from my heart—that is where they came from. They are not words of art; they are ordinary dictionary words and they bear their ordinary dictionary meaning. They give rise to questions of fact and degree and, as the noble Lord, Lord Houghton of Sowerby, said, questions of fact and degree are questions for the industrial tribunal, under this Bill, to decide. But these are not the convoluted language of the industrial tribunal. I may be wrong in

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thinking that I invented them, but I think I did and if I did not my right honourable friend did.
I must add this to my noble and gallant friend. It worries me not a little that some noble Lords who later on are not slow to quarrel with the language of the parliamentary draftsmen should begin to cavil now when they come across words which any ordinary man can perfectly well understand. The words "grounds of conscience or other deeply-held personal conviction", are the sort of language that English was meant to be, and it is not the technical language of the legislator.
Having said that, I ask, where did I get it from? May we first of all look at Article 9? Article 9 says that everyone has the right to three things:
"… freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in woship, teaching, practice and observance.
"Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others".
Three things: freedom of religion, freedom of conscience, freedom of belief. They are not the same thing, they are three different things, although conscience, at least in my judgment—and in this I agree with the noble Lord, Lord Houghton of Sowerby—of course includes religious beliefs.
Now the words of the Bill which was introduced by the Labour Government and with which I fought in the last Parliament are confined to "freedom of religion". That is what I object to. It gives freedom in a closed shop situation to Jehovah's Witnesses or the Plymouth Brethren, but it does not give the right of freedom to the conscientious agnostic or even to the rubber-conscienced member of the Church of England who does not think his religion either imposes or does not impose an obligation to join a trade union. "Deeply held personal conviction" is intended to exclude the trivial, the frivolous, the self-interested, the prejudiced or the spiteful, but the words are not intended either to restrict the deeply-held personal convictions of the
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individual or of the legitimate rights of trade unions.
I would say in passing—although it has absolutely nothing to do with the broad question—to the noble Lord, Lord Harris of High Cross, that he may object to the closed shop, but I go at least as far as the noble Lord, Lord Rochester, about it and I think probably as far as other noble Lords; but none the less, even when we were legislating in 1971, we did not attempt to exclude it. On the contrary, we recognised there were unions such as the National Union of Seamen who could not effectively organise themselves with a workforce scattered across the world, and it turned out, rather to my surprise, but certainly to the agreement of this House, and I think of the other place also, that the same was true, but for totally different reasons, of the actors' profession in Equity. It is all very well to accuse us of going against the convention, but we might take another look at two more clauses of it. Article 11 says:
"Everyone has the right to freedom of peaceful assembly and the freedom of association with others, including the right to form and to join trade unions for the protection of his interests. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or"—
and these are the material words for this purpose:
"for the protection of the rights and freedoms of others".
I wonder whether the noble Lord on the Cross-Benches has really asked himself what is meant by the protection in this connection of the rights and freedoms of others. Despite the adverse criticism we have received from the Labour Opposition, the fact is that this Government do not wish to interfere with the rights and legitimate freedoms of trade unions, and the words "deeply-held personal conviction" seem to me to be admirably suited to achieve the object we have in mind. Of course, as I say, they are not universally embracing; I have said what they are intended to exclude, and I hope they do. But of course they are wide enough to include political beliefs, and here I answer the first question posed by my noble friend Lord Duncan-Sandys; if they are deeply held and personal, political beliefs are, of course, included. And it may be

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that, if they are deeply held, they would include a case where somebody—contrary to my own conviction in the matter and that of my party—chooses not to join a trade union which, in the ordinary course and contrary to what we would like to see, is affiliated to the Labour Party or a fortiori to the Communist Party.
At this stage I must make one point in protection of myself and my party against a misinterpretation. If I were on the shop floor, I should belong to a union. Of course, it would almost certainly be a union affiliated to the TUC, because that is the way unions are in this country. I do not like it, but my father taught me it when I was a small boy and I have held to that belief ever since; and, curiously enough, that is the orthodox Conservative view. Contract out of a political levy, certainly—I believe the political levy is one of the corrupting factors in modern politics—but, things being what they are, of course we have an association of Conservative trade unionists and of course we have consulted them in the preparation of, among others, this clause.
Moreover, I am bound to say that I think this clause is intended to comply, and achieves its intention of complying, with both parts of Article 11, which of course must be read with Article 14:
"The enjoyment of the rights and freedoms"—
says Article 14—
"set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion …".
"Political or other opinion", it says, followed by other words which are immaterial. "Deeply held personal conviction" in my case—and, I believe, in the case of my noble friend Lord DuncanSandys—would certainly include political opinions if they were deeply held and personal to ourselves.
Then my noble friend Lord DuncanSandys asks, "If you really think that, and if you are so certain that your words are wide enough to cover the affiliation to a trade union or political opinions"—or indeed, if I may anticipate what the other noble Lord in the next amendment says—"why not mak sicher (as Robert the Bruce said as he murdered the Red Cummings)? Why not make sure by putting the words in?". How often I
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have heard that argument advanced in Parliament, and I coyly confess that there have been occasions when I have used the argument myself. However, I am sure it is inapplicable here, and that too I have said before. Indeed, it has been said already in this debate—if not by the noble Lord, Lord Houghton of Sowerby, then by the noble Lord, Lord Wedderburn —that if you insert words into a generality which is wide enough to cover almost everything you mean to cover (if you insert words giving one particular example of what is intended to cover a wide spectrum of different things), you destroy the ordinary use of the English language and restrict the general words dangerously and, it may be, even disastrously.
The answer is a technical one, but I shall try to explain it in non-technical terms. If you use words, as I have done in the Bill, which are deliberately wide and then try to spell out one or two—in this case there are only two, this and the next amendment—particular examples on which, for some reason, rightly or wrongly, you wish to set particular stress, you restrict the generality of the general words. You cannot help it. You may not want to, but that is the effect of what you have done. There are two Latin tags which we lawyers use to put the same point. They are both technical rules for the construction of statute: inclusio unius, exclusio alterius, if you include one thing you inevitably exclude another, and the other is the so-called eusdem generic rule. If a general phrase is accompanied by a particular example, the general words are to be construed down in the context as including instances only of the same type as the particular instances enumerated in the example; or as lawyers sometimes also say, parading their medieval Latin, noscitur a sociis, a third Latin tag, which means that you have to read the three bits together.
The words which stand in the clause are wide. They are good English words, and as the noble Lords, Lord Wedderburn of Charlton, and Lord McCarthy, have correctly divined, they are wide enough, at least in my view, to cover both the amendments standing in the name of my noble and gallant friend and the noble Lord, Lord Howie of Troon. It is for that reason that the noble Lords, Lord Wedderburn, and Lord McCarthy, have put down their Amendment No. 11. They

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are right in law, but wrong in principle. My noble friends are right in principle, but wrong in law. So there is no difference between us that I am aware of. The questions will be questions of fact for the trusted application of the experienced members of the industrial tribunals, supervised, as we now know, by the Employment Appeals Tribunal. Do not let us spoil it. Should we turn out to be wrong, there is always the Green Paper. However, although I claim not in the least to be infallible, I am fairly sure that the opinions that I have expressed are better than the doubts to which my noble friends have given rise, and I beg them not to press the amendment to a Division.
Lord RENTON: My Lords, I agree with all that my noble and learned friend has said, but I wonder whether before he sits down he would be so good as to make two points clear. The first is, bearing in mind the doubts that have been expressed during the debate in your Lordships' House about the meaning of "deeply-held personal conviction", can we be sure that the tribunals which have to resolve this question in individual cases will be entirely free from doubt, and what steps may be taken to ensure that they are free from doubt?
The other question goes to the heart of the matter raised by my noble and gallant friend Lord de L'Isle. When we have the judgment of the European Court, and if it indicates that some further clarification of the Bill may be necessary, what chance is there that the Government will ask Parliament to make that clarification?
The LORD CHANCELLOR: My Lords, I did not hear the first question that my noble friend put to me.
Lord RENTON: I am sorry; I am sure that the fault was mine. My noble and learned friend the Lord Chancellor has resolved our doubts as to whether the expression "deeply-held personal conviction" can include political convictions. He has made it abundantly plain that it can. However, doubts were expressed about that point during the debate, and naturally one wonders whether the tribunals which have to decide these matters will be entirely free from doubt in their own minds. That is the first point.
The LORD CHANCELLOR: Yes, I think that we can be sure that they will be entirely free from doubt, but if they are in doubt, there is always the appeal to the Employment Appeals Tribunal, which will resolve the doubt for them. That is what the first debate we had this afternoon was about. Will my noble friend remind me of the second point?
Lord RENTON: Yes, my Lords. My second point was that if the European Court, when it finally decides this matter, having considered the Bill, or, if it has gone on to the statute book, the Act of Parliament, feels that further clarification is needed in our law in order to carry out their decision, will the Government then take action by asking Parliament to amend the law accordingly?
The LORD CHANCELLOR: My Lords, my noble friend rather assumes that the European Court will go further than the Commission and in the direction of my noble friend Lord de L'Isle. It might adopt the minority opinion to which the noble Lord, Lord Wedderburn of Charlton, gave expression, and to which I think three members of the Commission gave certain degrees of expression. But, so far as I know, we will not go back on this Bill if the minority opinion prevails, because that would, I think, be a retrograde step. However, if in fact the court comes to a decision, presumably we shall have to make a statement of some kind in Parliament, and that would be free for debate. The question of whether clarification may be required, and, if so, what kind, must remain in the womb of the future until we know what the court actually decides.
Lord SPENS: My Lords, before the noble and learned Lord sits down, will he resolve one question for me and I think possibly for a number of my colleagues on the Cross-Benches? The noble and learned Lord has said that the words "deeply-held personal conviction" may include political conviction. But can it be turned around the other way? We do not have political convictions on these Benches, but we may object very strongly to joining a union which has political affiliations.
The LORD CHANCELLOR: If that is a deeply-held personal conviction, it

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would not of course coincide with my own opinion, as I explained, but obviously it can amount to a deeply-held personal conviction, and presumably the tribunal would so decide. I prefer the use of the English tongue, and not the convolutions of lawyers.
Lord HARRIS of HIGH CROSS: My Lords, may I ask the noble and learned Lord for a final clarification? I want to ask him about a specific case. If unions make a habit of calling days of action or inaction on entirely political grounds, would I be accused, as hitherto a loyal member of a union—I am being hypothetical—of suddenly inventing deeply-held convictions and all that if I wished to resign, or would political action, persistent action, by a trade union enable members to resign on the grounds of deeply-held convictions?
The LORD CHANCELLOR: My Lords, if the noble Lord will look at the clause, I think he will find that deeply-held conviction includes membership of a particular union.
Viscount DE L'ISLE: My Lords, I think that the House will agree that the amendment which I supported with others has provoked a very interesting debate, and we have had a very interesting speech from the noble and learned Lord who sits on the Woolsack. I have argued with him many times in private and in public, and I hold him in the highest regard and affection, but generally in his argument he succeeds in convincing one of one's ignorance, to begin with, if not of one's malintention. I have studied the convention. I have done my best to understand it. I used the words of the convention because I think that in legislating in Parliament, as a member of the Council of Europe, we ought to pay particular attention to what the convention says. If the court has not decided, when we are legislating on a matter which is germane we ought to pay attention.
I must admit that when I was thinking about what the noble and learned Lord might say I found a very interesting little quotation from a book in which he was talking about the Bill of Rights, and it might be apposite. The noble and learned Lord said:
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"I do not accept that a party government of either colour would hesitate for a moment, with its main programme bills, to insert when it wished to do so, the necessary exempting words: Notwithstanding anything in the Bill of Rights or any other rule of law or statute to the contrary'."
However, I accept the assurance of the noble and learned Lord. I am glad that we got it from him. It was not I who wrote the notes on the Bill, which said that they were specifically not to include political laws. I have read some of the debates in another place in Standing Committee A. I did not think that the Minister of State's views on the matter were very robust. Perhaps the noble and learned Lord will now consult his learned friend in another place and instruct him on better understanding. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.59 p.m.
Lord HOWIE of TROON Lord HOWIE of TROON moved Amendment No. 10:
Page S, line 28, after ("conscience") insert ("or on grounds of a possible conflict with the practice of his professional institution, as defined in a code of professional practice, provided that membership of that institution is limited to persons who have or are seeking a qualification appropriate to the practice of the profession concerned").
The noble Lord said: I intend to speak very briefly about this amendment. First, following the excitement of the last amendment, this one is very low key. Secondly, somewhat unusually, the noble and learned Lord the Lord Chancellor has already replied to the debate on the amendment before it has started, and his reply was extremely interesting except for the fact that I do not command enough Latin, either medieval or modern, to have followed his reply in all its detail.
The EARL of GOWRIE: My Lords, I am most grateful to the noble Lord, Lord Howie of Troon, for giving way. I think there is a general feeling and understanding that we have reached seven o'clock and a sort of climactic moment of the Bill; and, in order that the amendment to be moved by the noble Lord, Lord Howie, should entertain no anti-climax—because what he wishes to attend to is so important—it might be a good thing if we now adjourned for supper and came back to his point later.
Lord HOWIE of TROON: My Lords, before the noble Earl sits down, it might be possible to dispose of this debate in something like 15 minutes. I do not know whether that would change his mind in any way.
The EARL of GOWRIE: My Lords, I am the servant of the House in this matter. I have no desire to dictate to your Lordships when you should have your supper. I was just told your Lordships wanted it at around 7 o'clock.
The EARL of HALSBURY: My Lords, may I observe that I should like to speak on the amendment of the noble Lord, Lord Howie of Troon, but I have taken advantage of the advertised programme to do something else at 7 o'clock.
Lord HOWIE of TROON: My Lords, it may well be that we should go on, and will endeavour to do that. I will begin again by saying that this is a very modest amendment, and it covers ground which we dealt with in the Committee stage and during the Second Reading debate. It covers the principle, at any rate, but it covers it in a much narrower way than we did in our earlier debates. The amendment deals with the dilemma, which is most serious in a closed shop situation, of the conflict of loyalties which a professional man may feel as to his obligations towards his professional institution and to his trade union, where he belongs to one.
It is quite a simple matter. The professional institution may well have rules of professional conduct which would be breached in a case where he were obliged by his union to take industrial action. Were he to breach these rules of professional conduct, he might be disciplined by his institution, whereas, on the other hand, he might also be disciplined by his union for fulfilling them. The narrowness of this amendment as against the one we spoke on at Committee stage is that this now deals only with the question of whether or not professional men should be able to claim exclusion from being obliged to join a union, and it is a special example of the general case to which the noble and learned Lord the Lord Chancellor referred earlier.
The problem here is that many professional men who might conceivably join trade unions willingly none the less fear
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that this dilemma would put them in an awkward and impossible position. Whether they are right or wrong is really not a matter for us to discuss tonight, but certainly their fears are present and distinct. The point I am making in this very modest amendment is that should a professional man feel this dilemma so strongly that he is unwilling to join a trade union, and if he is dismissed for that reason, he should be able to claim that that is an unfair dismissal, and should he able to claim it with the certainty of being right. That is the reason why I prefer it to be in the Bill rather than out of it; and, while I quite understand the point made by the noble and learned Lord the Lord Chancellor, I would feel much happier, and certainly the professional men to whom I refer would themselves feel that their doubts were set aside, were the law specific in this case. As I say, my Lords, it is a very small request to make, and is, I think, a long way short of the full protection which the professional institutions would really want in this case. It falls far short of what they would regard as natural justice. Because of its very modesty, it is my hope that the Government will be prepared to accept it. I beg to move.
The LORD CHANCELLOR: My Lords, I do not want to pre-empt anything which my noble friend Lord Gowrie is going to say, but I really indicated my own approach to this matter. I think it is in fact the thin end of a fairly fat wedge. I have been a member of a professional institution for the whole of my life, and so has my noble and learned friend the Lord Advocate. I would always put those practices which are based on ethical grounds as matters of conscience with me, and therefore directly covered by the Bill. I know there are certain practices, which have mostly been done away with in my profession—for instance, that you had to charge a special fee for going to quarter sessions—which I am not sure I could put quite so highly as that; and I think they might be too widely protected if one tried to get them within the terms of the European Convention, although some people might hold them as deeply-held personal convictions. My view is that what is a deeply-held personal conviction, what is a matter of conscience, is a matter of fact and degree, and that we had far better leave it to the

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tribunals to decide whether it is genuinely deeply-held and personal. But I am on the side of the professionals every time.
Lord WYNNE-JONES: My Lords, this is a subject of fairly considerable interest, and I would agree very largely with the remarks that have been made by my noble friend Lord Howie, but I think there is a real problem which in my opinion cannot be resolved by inserting anything into an Act of Parliament, Essentially, what we are dealing with here is the problem of an individual who is a member of a professional association and who is also a member of a trade union. He joined the trade union deliberately, with his eyes open; and, as one who could easily have been covered by this very matter which is raised by my noble friend, I feel that if one joins a trade union then one is bound by the rules of the trade union, because one did it deliberately. I think that if one has some other obligation, then this obligation clearly should be dealt with by means of a code of conduct, and not by means of an Act of Parliament.
The Earl of GOWRIE: My Lords, I think the substantive point has been dealt with by my noble and learned friend, so I do not wish to read out the speech that I have here. I must say—and it gives me pleasure to say this—that I am wholly in agreement with the noble Lord, Lord Wynne-Jones. Indeed, as the House will be aware, the Bill makes provision for a code of practice, which is already in the design stage and will shortly go out for consultation, to meet the very point that the noble Lord, Lord Wynne-Jones, made.
On the particular worry that the noble Lord, Lord Howie of Troon, expressed, I can say that we have a technical difficulty in proceeding as he would like, and in putting this into the Bill rather than into the code, because his amendment talks of professional institutions and professions, but does not actually define these; so, really, we would not know which bodies were covered and which were not. That, I think, would get us into the kind of difficulties and legalism which the noble Lord, Lord Houghton, in another context, warned us off, and which generally we are trying to avoid in this Bill as a whole. But at the Committee stage I gave the
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noble Lord, Lord Howie, undertakings —and I am very happy to repeat them now—that we are seized of the very same difficulty of which he is seized and which the noble Lord, Lord Wynne-Jones, has mentioned. We think the substantive issue is covered by the previous amendment, as my noble and learned friend has said. If we can clear it up in any way in a code of practice, which we are seeking to do, I think that the noble Lord will find that that will be the best way to proceed.
Lord HOWIE of TROON: My Lords, I am not anxious to find myself in the kind of deep water about which the noble Lord, Lord Houghton, warned us. In view of the speech of the noble and learned Lord the Lord Chancellor earlier and of the assurances just given by the noble Earl, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of GOWRIE: My Lords, I beg to move that the House do now adjourn.
The LORD CHANCELLOR: My Lords, the noble Earl really means, if he will allow me, to move that further consideration on Report be now adjourned.
The Earl of GOWRIE: My Lords, I apologise. An ex-Whip should have known better. I beg to move that consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

EUROCONTROL (IMMUNITIES AND PRIVILEGES) (AMENDMENT) ORDER 1980
7.11 p.m.
Lord TREFGARNE Lord TREFGARNE rose to move, That the draft order laid before the House on 17th June be approved. The noble Lord said: My Lords, I beg to move that the Eurocontrol (Immunities and Privileges) (Amendment) Order 1980 be approved. With your Lordships' permission I will speak at the same time to the International Organisations (Immunities and Privileges) Miscellaneous Provisions Order 1980. These draft orders, both made under the International Organisations Act 1968, were laid before the House on 17th June, 1980.
The draft Eurocontrol Order is required because of a change which is to be introduced into the tax régime applied to staff members of the European Organisation for the Safety of Air Navigation—or Eurocontrol as it is generally known. The change will mean that from the date on which staff become liable for an internal tax, which will be applied for the benefit of the organisation, they will cease to pay United Kingdom tax on their salaries.
The order will have no effect on the operational working of Eurocontrol, which as your Lordships may recall, was established by convention in 1960. The original aim of the convention was that the agency it established would control both civil and military traffic in the upper air space of member states. However, by the time that the new agency started functioning in 1963, it had become evident that the original aim was incompatible with the integrated system, covering the whole air space and catering for both military and civil air traffic, which we and France were by then developing. Accordingly, the United Kingdom, France and the Republic of Ireland continued to provide their own air traffic control services in the upper air space. Despite this change, Eurocontrol has fulfilled an important role, and contributed to the development of navigational aids in all member states.
Your Lordships may know that a new agreement is being negotiated to provide the framework for a more positive cooperative venture for future safe and efficient air traffic control over Europe, in the future. In the meantime, member countries have been concerned about the practical effects of the present taxation system which permits members to tax staff salaries, but requires them to refund to the Eurocontrol budget the amount of tax which they collect.
We accepted this requirement because of the principle that the country in which an organisation is situated should not derive benefit from taxing the salaries of staff members stationed in its territory, since these salaries are, of course, provided by the funding of other member states. Although an arrangement to repay the tax which has been collected may appear to be a simple, self-cancelling, transaction, in practice it has proved to involve considerable administrative effort. It has also created financing difficulties for Euro-
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control when delays have occurred in members making their reimbursements to the organisation. To overcome these drawbacks, members have agreed to adopt the method, commonly used by most international organisations, of applying an internal tax system to their staff, and using the proceeds for the organisation's benefit. The agreement to do this is contained in the protocol which was signed by member states in Brussels on 21st November 1978. Copies of that protocol were laid before the House in March last year.
The draft order before your Lordships is for the purpose of giving effect to that agreement. The making of the order will not, of course, result in any reduction in United Kingdom revenue receipts because, as I have said we currently repay to the organisation a sum equal to the amount of tax collected from their staff. This order, if approved, will lead to administrative savings to Her Majesty's Government and remove budget financing delays which have sometimes created difficulties for Eurocontrol. I have therefore no hesitation in commending it to your Lordships.
I turn now to the second of the draft orders, which is required to take account of changes in customs and excise law. These changes, which were introduced in the Finance (No. 2) Act 1975, made provision for a duty levied at importation to be denoted either a customs duty or an excise duty. Before the 1975 Act, which took effect on 1st January 1976, all duties charged at importation were termed duties of customs, and excise duties were charged on goods produced in the United Kingdom. Certain orders made under the 1968 International Organisations Act contain references to customs duties and excise duties in the sense in which these terms were used before the 1975 Act came into force.
The International Organisations Act itself was brought up-to-date by the Customs and Excise Management Act of 1979. It is now necessary to up-date those orders listed in the schedule which contain the now superseded, and inappropriate, terminology. The second draft order before your Lordships does no more than bring into line the provisions in the existing orders to which it refers. It does not add to their provisions in any way;

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neither does it accord any additional privileges to the organisations or to persons connected with them. I hope therefore that your Lordships will approve this draft order, also. I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the draft order laid before the House on 17th June be approved.—(Lord Trefgarne.)
Lord BRUCE of DONINGTON: My Lords, the House will be indebted to the noble Lord for having explained so clearly the purport of the two statutory instruments that we are now considering. The House will observe from the 24th Report of the Joint Committee on Statutory Instruments that these particular draft instruments were considered by the Joint Committee as not worthy of being drawn to the attention of both Houses. It therefore makes them strictly noncontroversial and we on this side of the House will wish to do everything to facilitate speedy passage. I observe with some interest the comments the noble Lord made about the Eurocontrol (Immunities and Privileges) (Amendment) Order 1980. He said that there had been a certain reorganisation of the arrangements that were originally intended for Eurocontrol.
Since he mentioned it, I must inform the noble Lord that I regard the arrangements amending the original concept of Eurocontrol as a retrograde step. It was my privilege while I was a Member of the European Parliament and the president of its Transport Committee to investigate in some detail the activities of Eurocontrol at both its centres. If there was one concept that seemed to me to bear some constructive and positive contribution to the unity of Europe, it was the concept of Eurocontrol. Indeed, by common consensus the duties it has performed in controlling the passage of aircraft over 20,000 feet have been impressive. Nobody who has visited their installations and observed their duplicated computer equipment and simulated displays for the benefit of air traffic controllers can be under any illusions as to their efficiency.
It therefore appears to be rather a pity that the Governments of the United
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Kingdom and France were not able to swallow fully the original concept of Eurocontrol as originally formulated. One cannot speculate as to the reasons for this, but it appears that, in spite of the talk there has been about the need for a united Europe, certainly in the sphere of traffic control, the national interest, whether at West Drayton or whether in France, has certainly succeeded in minimising the original community impact that lay behind the establishment of Eurocontrol itself. These are more controversial matters on which the noble Lord touched by way of explanation and I do not want to make anything more of them.
So far as the orders themselves are concerned, there can be no doubt that the course decided upon by the Government in regard to the taxation of the officials and various others who are concerned with Eurocontrol is the most sensible course to adopt. I venture the prediction that the time is not far distant when they have to adopt the same principle in so far as the salaries of European Members of Parliament are concerned; this lies far beyond the existing order.
Regarding the International Organisations (Immunities and Privileges) Miscellaneous Provisions Order, we on this side entirely accept the various interpretations and drafting amendments that have had to be made in order to bring this up to date. One does not want to go through all of them. I have not ventured, in view of the report of the Joint Committee, to trace each amendment through to its original order. They are entirely noncontroversial. We compliment the noble Lord on his felicitous presentation, and hope that the orders will be passed by the House.
On Question, Motion agreed to.

INTERNATIONAL ORGANISATIONS (IMMUNITIES AND PRIVILEGES) MISCELLANEOUS PROVISIONS ORDER 1980
Lord TREFGARNE: My Lords, I beg to move that the draft order laid before the House on 17th June be approved.
Moved, That the draft order laid before the House on 17th June be approved. (Lord Trefgarne.)
On Question, Motion agreed to.
[The sitting was suspended from 7.23 to 8.10 p.m.]

EMPLOYMENT BILL
Report stage resumed on Clause 7.
[Amendment No. 11 not moved.]
Lord McCARTHY Lord McCARTHY moved Amendment No. 12:
Page 8, leave out from beginning of line 42 to end of line 10 on page 9.
The noble Lord said: My Lords, this is the amendment by which we wish to delete those provisions in the Bill for additional requirements in respect of new union membership agreements. What we are saying is that, given the qualifications that the Government have introduced in respect of old union membership agreements so far as the existing members are concerned and so far as personal convictions are concerned, we do not see why there should be an additional separate provision dealing with new union membership agreements.
This argument is partly based upon the central argument which we advanced earlier; that the closed shop, subject to reasonable provisions for conscientious objection, is a justifiable aim of trade union objectives and partly due to the fact that we would maintain that the kinds of qualifications and conditions which the Government are imposing in respect of new union membership agreements are in fact something which no reasonable person, looking at them objectively, could believe that any trade union could actually carry out. It is not merely the fact that the Government are insisting upon a procedural method of taking the ballot which does not give the trade unions concerned any statutory rights whatsoever in so far as the way in which this procedure is carried out, though we have sought to move amendments to that effect and they have not found favour with the Government. It is not only the fact that the Government are insisting, under the provisions of this clause, on what we regard as a quite unrealistic figure of 80 per cent.
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which has to be voted in favour of this new form of union membership agreement—and not just 80 per cent. of those voting but of those eligible to vote—which we regard as a quite unnecessary and extreme form of qualification to make in respect of union membership agreements. But, in general terms, we would argue that this is to place the union security arrangements of working people in trade unions far beyond the kinds of qualifications and statutory limitations which in fact are placed upon other organisations, and in particular professional organisations and their arrangements to maintain membership.
This matter has been referred to by previous speakers tonight, but I do not think it has been fully developed. For example, if one looks at the classic work on the professions, Carr-Saunders and Wilson in their classic study of the professions, they say quite clearly at page 319—and this has not been objected to by anybody, so far as I know—that it is the purpose of professional associations, and not simply of trade unions, to intervene to achieve a state where some degree of monopoly of function is granted to the practitioner professional associations.
Thus, they say, no one who is not a member of one of the four Inns of Court, is allowed to plead a case before any of the higher courts while the Royal College of Veterinary Surgeons, for example, is required under the Veterinary Surgeons Act to admit to membership all those who pass their examination and thus qualify for the register. In fact, of course, the register of qualified veterinary surgeons consists of the membership of the RCVS; but that is only the position in respect of the registered profession.
In respect of the non-registered professions, similar forms of protection, partly by injunctions and partly by other statutory ways, are introduced in order to mark out and support professional organisations in their attempts to achieve what is in effect 100 per cent. membership. Carr-Saunders and Wilson say that the hallmark of qualifications ofprofessional associations is the achievement of a 100 per cent. membership. Thus, they say, it may be said that in a sense all unregistered professions are attempting to achieve 100 per cent. membership in various ways. We would argue that these ways are not subject

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to these kinds of statutory limitations. They do not have to go through the fine needle of a vote of this kind. Therefore, we would suggest, even at this late hour, that the Government should be fair and square and agree with this amendment.
The Earl of GOWRIE: My Lords, as the noble Lord, Lord McCarthy, has very clearly put it, the effect of these amendments—I take it that he is also addressing himself to Amendment No. 15; I see that he nods his head—would be to remove the provision that the dismissal of an employee in a closed shop will be unfair, as we deem it to be unfair, if the union membership agreement takes effect after the commencement of Section 7 of the Employment Act 1980, as we trust it will become, but has not been approved in a secret ballot of those to be affected, showing at least 80 per cent. support among those entitled to vote. The burden of the argument of the noble Lord, Lord McCarthy, was that this figure of 80 per cent. is unreasonably high.
The Opposition have made no secret of their disagreement with our closed shop ballot proposals. But we have consistently, and in considerable detail, spelled out our reasons for insisting that not only should the new closed shop be subject to approval by the employees who will be covered by it, but that that approval must be given by an overwhelming majority of those employees in a secret ballot. It seems to me to be most extraordinary that noble Lords opposite are seriously asking us now to renege on this commitment. I can only again refer them back to some of the remarks made by the noble Lord, Lord Houghton of Sowerby, to the effect that membership or non-membership of a closed shop raises issues of public policy far beyond the provisions of any normal kind of organisation, and issues of whether, in fact, one may pursue one's job at all. That is why it seems to me that the onus on people seeking to make new closed shops must be an overwhelming degree of support.
We regard it as very important indeed that employees should be consulted about the introduction of any new closed shop. Any such introduction marks a substantial change in whatever existing terms and conditions of employment there may be for an employee, and it is only right that his
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opinion should be registered. It is also right, in our view, that a closed shop may be introduced only when there is a very large majority in favour of it, and we settled on at least 80 per cent. as indicating an overwhelming majority. We got that figure not out of the blue but after consultations and it, also, is the kind of figure for membership which unions have traditionally looked for in the past before they have sought a closed shop agreement. So it seems to us to he in line with best practice in this area.
Some people—not, I think, in fairness to him, the noble Lord, Lord McCarthy, at any rate, very strongly tonight—have argued that this provision is designed to halt the spread of new closed shops. Of course, we acknowledge that 80 per cent. is a high figure, but it is deliberate because, as I said, we believe that a new closed shop should take effect only where it is definitely and positively desired by an overwhelming majority of those who are likely to be affected. The arguments for this have been clearly rehearsed not only at Committee stage but also in a slightly different context earlier this afternoon. No more needs to be said to justify our position, and we hope that these amendments will be opposed.
The LORD CHANCELLOR: My Lords, I should just like to add something, because I really think that I ought to correct the noble Lord, Lord McCarthy, on the position about the professions. What he seemed to say is a very commonly held error, but it is a complete error, if I understood him correctly. The aim of a professional association, like any other organisation, is to get as wide a membership as possible, but it is certainly not the intention of any such membership to have a closed shop.
Yes, in order to be a member of the Bar you have to pass certain examinations and to be called to the Bar, but you do not have to belong to the Bar Council which has a membership of, I guess, somewhere between 80 and 90 per cent., which is now absorbed into the Senate of the Inns of Court. To be a solicitor, you have to pass certain examinations and take certain training to take up a practising certificate. But you do not have to be a member of the Law Society, which is the professional association and which has, I suppose, a membership

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of, again, between 80 and 90 per cent. And to be a doctor you have to get on the medical register which involves certain qualifications, but you do not have to he a member of the British Medical Association which is the professional association concerned and so on. There is every kind of difference between the qualification to practise your profession, and compulsory membership of your professional association. The one I heartily support; the other I would absolutely abhor.
8.26 p.m.
Lord McCARTHY: My Lords, it is with very great respect that I cross swords with the noble and learned Lord the Lord Chancellor on this point, but let me first deal with the points raised by the noble Earl, Lord Gowrie. He said, first, that other people have been consulted. He said that he got his 80 per cent. as the result of consultation. I should like to know whether those consultations included the Trades Union Congress, the trade unions and those who have the practice of running union membership agreements. I do not think that is the case. Nobody who knows about closed shops would have advised him to have ballots of this kind. The figure of SO per cent. is normal where unions recruit 80, 85 or even 95 per cent. of membership without the closed shop, before they go forward and demand a closed shop. That has nothing whatever to do with the figure of 80 per cent. in the context of a ballot. So I do not think there is any connection with that at all.
Secondly, the noble Earl said that this would halt the spread of the closed shop, and I am suggesting that it would halt the spread of the closed shop. He has not actually answered the question whether or not he wants to halt the spread of the closed shop. In this respect I suggest to him—and it has been said elsewhere in this House tonight—that so far as the closed shop is concerned the 1971 Industrial Relations Act was much better. The Industrial Relations Act allowed a registered union to opt for the alternative of the agency shop, which in many ways would have been a satisfactory alternative for trade unions.
I know that in the context of the 1971 Act the trade unions said that they did not want the agency shop. They did not want it, because in the context of the 1971
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Act the agency shop was connected with the whole question of registration. It was the whole issue of registration which the unions found unacceptable in 1971. Nevertheless, separated off from the issue of registration there were more acceptable ways of pursuing union membership agreements in the 1971 Act than there are in this Bill. We remain convinced that one of the aims of the Government in introducing the ballot provisions is to make the negotiation of new closed shops impossible.
So I come to what the noble and learned Lord the Lord Chancellor has said. First, with great respect, I have not talked about the British Medical Association and I have not talked about the Law Society. I know that both the British Medical Association and the Law Society do not operate 100 per cent. membership practices. Also, I have not talked about the Bar Council. I have talked about the four Inns of Court. It is impossible to plead a case before any of the higher courts unless you are a member of those institutions. And I have not just talked about the registered professions, because I accept, if this is the point, that in respect of the registered professions there are for the most part statutes which set up statutory organisations, and it is the statutory organisations which regulate the professions.
I am talking even more about the unregistered professions, because in the unregistered professions, as Carr-Saunders and Wilson say, it is the professional title, which is not necessarily descriptive of membership of the association but which becomes the monopoly of the association, which is the key to the control over entry and over membership. It is in the unregistered professions, above all, that we find practices analogous to the closed shop of trade unions, and the Government do not propose to do anything at all about that. Therefore we do not propose to withdraw this amendment.
8.29 p.m.
On Question, Whether the said amendment (No. 12) shall be agreed to?
Their Lordships divided: Contents, 40; Not-Contents, 106.

CONTENTS

Birk, B.

Janner, L.

Stewart of Alvechurch, B.

Blease, L.

Kaldor, L.

Stewart of Fulham, L.

Brockway, L.

Lee of Newton, L.

Stone, L.

Brooks of Tremorfa, L.

Llewelyn-Davies of Hastoe, B. [Teller.]

Strabolgi, L.

Chitnis, L.

Strauss, L.

Collison, L.

McCarthy, L.

Taylor of Mansfield, L.

David, B.[Teller.]

Morris of Kenwood, L.

Underhill, L.

Davies of Leek, L.

Northfield, L.

Wall, L.

Elwyn-Jones, L.

Oram, L.

Wallace of Coslany, L.

Gaitskell, B.

Peart, L.

Wedderburn of Charlton, L.

Goronwy-Roberts, L.

Phillips, B.

Wells-Pestell, L.

Hale, L.

Rhodes, L.

Whaddon, L.

Hatch of Lusby, L.

Ross of Marnock, L.

White, B.

Houghton of Sowerby, L.

Shackleton, L.

NOT-CONTENTS

Adeane, L.

Gowrie, E.

Penrhyn, L.

Ailsa, M.

Gray, L.

Rawlinson of Ewell, L.

Airey of Abingdon, B.

Gridley, L.

Reigate, L.

Auckland, L.

Grimston of Westbury, L.

Renton, L.

Avon, E.

Hailsham of Saint Marylebone, L. (L. Chancellor)

Robbins, L.

Bathurst, E.

Rochdale, V.

Bellwin, L.

Hankey, L.

Rochester, L.

Berkeley, B.

Hanworth, V.

Romney, E.

Blake, L.

Hatherton, L.

Rugby, L.

Bridgeman, V.

Hives, L.

Sackville, L.

Brookes, L.

Holderness, L.

Sandys, L. [Teller.]

Brougham and Vaux, L.

Hunt of Fawley, L.

Seear, B.

Campbell of Croy, L.

Hylton-Foster, B.

Seebohm, L.

Clitheroe, L.

Ilchester, E.

Sempill, Ly.

Cockfield, L.

Kemsley, V.

Sharples, B.

Cork and Orrery, E.

Kimberley, E.

Sidmouth, V.

Cottesloe, L.

Lindsey and Abingdon, E.

Simon, V.

Craigavon, V.

Long, V.

Soames, L. (L. President.)

Cromartie, E.

Lyell, L.

Stamp, L.

de Clifford, L.

McAlpine of Moffat, L.

Strathcarron, L.

De La Warr, E.

MacAndrew, L.

Strathclyde, L.

De L'Isle, V.

McFadzean, L.

Sudeley, L.

Denham, L. [Teller.)

Mackay of Clashfern, L.

Swinfen, L.

Dormer, L.

Macleod of Borve, B.

Swinton, E.

Drumalbyn, L.

Mais, L.

Torphichen, L.

Duncan-Sandys, L.

Marley, L.

Trefgarne, L.

Dundee, E.

Merrivale, L.

Trenchard, V.

Ebbisham, L.

Middleston, L.

Trumpington, B.

Ellenborough, L.

Monson, L.

Tryon, L.

Elliot of Harwood, B.

Mottistone, L.

Vaux of Harrowden, L.

Elton, L.

Mowbray and Stourton, L.

Vickers, B.

Ferrers, E.

Murton of Lindisfarne, L.

Vivian, L.

Gainford, L.

Netherthorpe, L.

Ward of Witley, V.

Gisborough, L.

Nugent of Guildford, L.

Wigoder, L.

Gladwyn, L.

Orkney, E.

Young, B.

Godber of Willington, L.

Orr-Ewing, L.

Resolved in the negative, and amendment disagreed to accordingly.
8.38 p.m.
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 13:
Page 9, line 16, at end insert—
(" (3E) In determining for the purposes of subsection (3B) and of section 58A(2) whether a person belongs to a class of employees, any restriction of the class by reference to membership (or objection to membership) of a trade union shall be disregarded.")
The noble and learned Lord said: My Lords, I beg to move this amendment.
956
As your Lordships will be aware, the current statutory definition of a union membership agreement in the Act of 1956 says that for the purposes of the Act, employees are to be treated in relation to a union membership agreement as belonging to the same class if they have been identified as such by the parties to the agreement, and the Act goes on to say that they may be so identified by reference to any characteristics whatsoever.
For most purposes this definition works entirely satisfactorily, but it has recently come to our attention that in the context of our proposals on ballots where new

957
closed shops may be sought, the definition may work in such a way that non-union members may be disfranchised from the ballot. This is because as currently drafted those who must be allowed to participate in the ballot are those in the relevant class, and "class" may be defined so as to exclude existing employees who are non-members. It is highly desirable that existing non-union employees should be exempted by the union membership agreement from having to belong to the union—they are in any case protected by the Bill—but it is highly undesirable that such employees should be disfranchised in the ballot. It is to avoid any possibility of this that we have tabled this amendment, which does not alter the definition of "class" in the statutory provisions presently in force. I commend the amendment to your Lordships.
Lord WEDDERBURN of CHARLTON: My Lords, this amendment from the Government cannot be allowed to pass without three comments. I follow the noble and learned Lord the Lord Advocate when lie says that, because of the definition in Section 30(5)(a) of the 1974 Act of the word "class", it would be possible to arrange between the union and the employer that the class of employees who are covered by the union membership arrangement are the union members within a certain plant and not the other existing employees. I understand his problem about that being a possible abuse of the law as it is seen by the Government, but this is an excellent illustration of the road down which the Government are being taken by the arrangements to which my noble friend Lord McCarthy was objecting in the last amendment. It means that when we get into this degree of legal regulation, of bargaining patterns and bargaining arrangements—including union membership arrangements—we have to put a stop to what might be a quite sensible situation. We will not bother to swap examples, but I can understand the noble and learned Lord's example of a possible abuse in his eyes. I am sure he could easily see that I might say there would be a situation where it might be quite sensible to say, All the union members in a shop—not George and Bill because they have been here 20 years and no one has bothered to recruit them, but all the union members and all future employees". A
958
sensible management and a sensible union cannot now do that and they cannot now do it because of the words of this amendment.
It goes further: the class cannot be restricted by reference to membership. The noble and learned Lord and I know perfectly well that the first litigation on this will raise the question of whether the boundary is described by implicit reference to union membership. The world being as it is, some arrangement will be made and someone will allege that there is an implicit reference. This is to introduce into labour law what I sometimes tend to call the tax evasion mentality. We shall be down the road to the tax evasion approach to statutes and to arrangements which have to regulate bargaining practices.
The point to make on this amendment is that of course we will resist it because it is an illustration of the kind of thing to which the Government's arrangements in this Bill will lead more and more, which are quite alien to the commonsense attitudes which are common on the shop-floor between trade union and management in Britain.
Lord MOTTISTONE: Before the noble Lord sits down, is it entirely right that Bill and George (as he described them) should be excluded from voting? Why should Bill and George, because they have been with the company for 20 years and are not union members, be excluded from this voting pattern? He put it across very plausibly, as he always does—and very charmingly—as though it was a foregone conclusion, but I question whether it is a foregone conclusion. I should have thought that Bill and George would want to vote, and why should they not?
Lord WEDDERBURN of CHARLTON: My Lords, as I have not sat down, perhaps I may respond. The noble Lord is putting it to me in the terms of the noble and learned Lord the Lord Advocate. I was putting it in a different way, where George and Bill did not mind whether they voted or not, but where management and union wanted all future employees (perhaps for perfectly good industrial reasons) to be members of the union. Whether Bill and George voted in the ballot is not the real question. Of course

959
if that is the question, then the noble and learned Lord has his point, but if I have a situation—and I am sure the noble Lord, Lord Mottistone, could think of such an industrial situation—where it was said, "For the future we will have everyone in the union", the most sensible way to do that is to define the UMA by reference to existing union members and all future employees. That now they cannot do and it is very odd. That is the kind of thing that the Government will be thinking about in their Green Paper. I fear what will come in the Green Paper; it will be more of this kind of thing.
Lord MACKAY of CLASHFERN: My Lords, what will be in the Green Paper is for another day. So far as this particular amendment is concerned, I really understood the noble Lord, Lord Wedderburn, ultimately to see good sense, including Bill and George in the voting, and ask your Lordships to agree to this amendment.
On Question, amendment agreed to.
8.45 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 14:
Page 9, line 16, at end insert—
(" (3E) Where for the purposes of this section the question falls to be determined whether it is the practice for employees to belong to a specified independent trade union or to one of a number of such trade unions, no account shall be taken of the fact that an employee is not a member of any such trade union if his dismissal would have been unfair by reason either of subsection (3B) or of paragraph (b) of subsection (3C) above.").
The noble Lord said: My Lords, this has become known in the trade on our side, as it were, as the Iolanthe amendment, because it was the amendment which I strove to move in your Lordships' Committee and the noble and learned Lord pointed out to me that the word "not" had been left out, so I was unable to move it. It now comes in a slightly different form and it addresses itself to this problem: the dismissal of a non-union member in a union membership arrangement is only fair—putting aside for the moment all questions of conscience and personal conviction and the matters we have been debating in such an excited manner this evening—if it is the practice that employees of the same class as his belong
960
to one or more of the specified trade unions; that is clear law under Section 58 and, of course, there has been a line of case law in which this has caused a certain degree of difficulty. In the well-known case of the Ferrybridge Six in 1976 the tribunal which found that some 1,000 out of 39,000 employees of the Central Electricity Generating Board were not in the proper specified unions held that there was an insufficient practice. Then the words in the statute were slightly changed by the Act of 1976. But it does not seem to have made much difference, because in the case of Himpfen amp; others v Allied Records Limited in 1978 the employment appeal tribunal held that nine out of 42 workers who were not in the specified trade union was not a big enough practice and so the dismissal of non-unionists was unfair.
This amendment tries to call upon the Government to prevent their new structures from destroying the possibility of maintaining union membership arrangements altogether. That is to say, if we now take on board after cases like the Himpfen case, nine out of 42, no practice, or the Sarvent case, 1,000 out of 39,000, no practice, we now have a statutory situation where, putting aside questions of conviction and conscience, we have the existing employees who are there and cannot be dismissed (and as we have just heard we cannot even arrange for the UMA to get round that in any way). We have the new UMA which also has to have the ballot and then those who are not members of the specified unions on the day of the ballot, who keep out of the union —they are non-unionists—and it becomes fairly obvious that the ability to prove a practice in the terms in which the courts have so far demanded it, becomes almost impossible.
What this amendment attempts to do is to say, "All right; have your statutory exemptions for the existing employees or the employees who are not members on the day of the ballot, but do not judge the practice by reference to them as well as the trade unionists". The Government must know that in a large number of cases all the talk about an 80 per cent. majority, or conscience, or deeply-held personal convictions, or political convictions, or ethical objections, or Plymouth Brethren, or Roman Catholicism, or

961
Moslem or agnostic objections, are all beside the point. There just will not be the practice. There will not be sufficient people in the union to satisfy the Himpfen test.
So if the Government are not going to accept this particular way of doing it—and this is only one of a number of ways of doing it—I hope that when the noble and learned Lord replies he does at least address himself to this question. It could be that in practice this is the way in which effective 100 per cent. union membership arrangements, plus the statutory exemptions cannot be carried on. This may be the way in which a closed shop is destroyed, through lack of practice, much more significantly perhaps than all the matters we have been debating in earlier amendments this evening. I beg to move.
Lord MOTTISTONE: My Lords, does the noble Lord not think that he has postulated a very plausible case, but it is all anticipating a situation which may or may not occur in real life? It would seem to me that he is jumping ahead to assume that there are various factors built into this Bill which will not operate and which will not be successful, and the theme of the attitude of mind in industry that is developing over the months will not continue to develop in that way.
Would it not be much more appropriate to keep in mind the very situation he describes, which could be a real one but on the other hand might well not be, and use it, certainly for introduction, to advise the Government at a later stage when perhaps we might find further legislation is necessary? Every Act that is passed there are always deficiencies. We see them every day. It could well be that this is the sort of thing which needs to be kept in reserve for future legislation, rather than trying to inflict it on this Bill, based on a theoretical situation which the noble Lord sees so clearly but which I find it much harder to see as being a real case that will occur in the future.
8.51 p.m.
Lord MACKAY of CLASHFERN: My Lords, the matter which is now before your Lordships is the same point essentially as the noble Lord raised on
962
Committeee. Perhaps I should say, for the record, that he rather suggested that I had not understood the point at that time. What I did not understand was the relationship of the point he was making and the amendment he was proposing. However, that difficulty has been resolved and we now have the amendment and the point fairly clearly related.
I understand perfectly the concern which is being expressed in this amendment. It is that a number of employees, perhaps quite a large number, should in future be exempted from any requirement to join a union because they are not union members when a closed shop is introduced. As a result, it is argued, a tribunal might in future, when looking at the statutory definition of a closed shop, a union membership agreement, find that there was not in fact "an agreement or arrangement which has the effect in practice of requiring the employees for the time being of the class to which it relates to be or become a union member". So the question really is what is to be regarded as amounting to a practice in relation to the particular situation.
Lord WEDDERBURN of CHARLTON: My Lords, it is not, of course, a question of the existence of the union membership agreement and its definition, but its practice under Section 58. It comes to the same point, but it is the position under Section 58, not the definition.
Lord MACKAY of CLASHFERN: I think that has been made clear. I must say I think it is the same point, and that is why I am seeking to address it in this particular way. If the doubt the noble Lord has given expression to were to eventuate, the legal position of all union membership agreements would be uncertain and this would be both confusing and disruptive.
So far as we are concerned, I can assure the House that the Government have no intention of undermining the statutory definition of a union membership agreement by Clause 7 of the Bill. If we were persuaded there was any serious risk of that, then we should certainly wish to accept the amendment suggested or introduce something with a similar effect. The union membership agreement, as we see it, exists wherever there is a practice

963
of requiring employees "of the class to which the agreement applies" to be members of a union. The 1974 Act does not define "class and this can be any category or description of workers which the agreement uses, or the tribunal finds to exist, in relation to any requirement of union membership. Agreements normally will describe whom they cover, and this is the class. It is possible that a tribunal might sometimes be called upon to determine whom a more informal arrangement covers, but its decision will turn on the relevant factual evidence. Those whom in practice the agreement or arrangement covers will be the class. Indeed it would be strange if it were otherwise.
Recent research has shown that most closed shop agreements in fact provide exemptions. The work of LSE researchers, published last November, showed that some two-thirds of agreements exempt existing employees in post when a closed shop is introduced. If the doubt expressed in the amendment were a real one then it would already apply to most existing closed shops; these would not, if the proposers of this amendment are correct, satisfy the current statutory definition of a union membership agreement. However, it is not correct, for the reasons which I have already tried to give, and closed shops, both before and after this Bill is enacted, will continue to satisfy the statutory definition of a union membership agreement when they provide exemptions from the requirement of union membership for existing employees and other categories of worker, so long as in relation to the class as a whole the practice is to belong to the union.
The noble Lord referred to the Himpfen case and this is a special one on its own facts, in my view. The nine employees in question in that case had previously been promised by management that they need not join the particular union, and it is thus not surprising that the Employment Appeal Tribunal held that it was not the practice to require them to join. So I do not think that case really affords any light on the general situation; it was a very special case indeed. So, for these reasons, I do not believe this particular amendment is necessary, and I think it is undesirable in that it would unsettle the understanding in relation to existing union membership
964
agreements. So I would ask your Lordships not to accept it.
Lord WEDDERBURN of CHARLTON: My Lords, I must say one or two words, first, to the noble Lord, Lord Mottistone. I am usually accused of jumping ahead, but I did not want to wait, as he seemed to want to do, until the closed shop arrangements are destroyed and then wait for later legislation from this Government. The noble and learned Lord the Lord Advocate keeps telling us that we must not look ahead to the Green Paper and later legislation but we had better concentrate on this. There is a serious risk. I was interested that the noble and learned Lord went as far as he did in saying that if the risk materialised the Government would consider introducing something. I should have thought the case is now strong enough for the Government to think again before Third Reading, in this sense: that the matter is clearly not just theoretical; secondly, because if the noble and learned Lord considers the passage of Amendment No. 13, you cannot use that way out of the problem; you cannot define your union membership agreement boundaries by reference to union membership in any way at all.
The risk is plain that more and more of these situations will arise. Indeed, he referred to the research of the London School of Economics, and the interesting thing is that a number of heads have been put together around that research since it was published, asking, how long it would be before the legal decision in the Himpfen case percolated through into industrial practice and people began to ask themselves how many of these exemptions they could give without risking the practice which is necessary to maintain it.
Since it is a legal point I must join issue with the noble and learned Lord on the Himpfen case, which clearly had two ratione decidendi. One was the promise to the employees, and on page 691 the tribunal mentions lack of practice and says "on that ground, too, we differ from the tribunal". It is clearly a separate ground of the decision. It takes time for legal decisions to filter down into everyday practice. It is only now, just as that research was being considered, that the lawyers and others were considering the effect that that decision would have.

965
Would it be perhaps possible—I know it is a late stage of the Bill and I shall not get an answer now—for the Government to consider by Third Reading a different way, and that is perhaps slightly to change the wording in terms of what practice is required, to loosen it a little if there is any risk at all? That would be industrially rather more sensible than waiting for a deep sense of resentment, which will certainly appear in the trade union movement if they find that by some mischance this legislation, as it were almost by a side-wind, knocked out the validity of a large number of union membership agreements. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 15 and 16 not moved.]
Clause 18 [Acts to compel trade union membership].
9 p.m.
Lord McCARTHY Lord McCARTHY moved Amendment No. 17:
Page 9, line 36, leave out subsection (1).
The noble Lord said: My Lords, this amendment deals with the question of exclusion of rights. In effect what we are suggesting is that the Government should agree at this late stage to cancel all limitation on unfair dismissal rights for employees of less than two years' service in firms of under 20. What we are saying is that this case has not been proved and that as time goes by more and more evidence is being put forward in objective surveys, some of them initiated by the Government themselves, which indicates that the case has not been made.
The fact is that we have been presented with a whole range of evidence from the ORC surveys, the PSI surveys, the Warwick surveys and from the testimony of organisations such as the Institute of Personnel Management. As I understand it, the Government's view on this matter has changed. It was eleborated both in the other place and in Committee in this House. In particular, the noble Earl, Lord Gowrie, developed a series of arguments as to how far Governments could be expected to base legislation upon the results of surveys. Nevertheless, the noble Earl, Lord Gowrie, is not above—as most of us are—using surveys when those surveys
966
appear to support what he is saying. For example, at. column 364 of the Official Report for 10th June he told my noble friend Lord Wedderburn of Charlton when this matter was discussed last time that the PSI survey evidence indicated that 17 per cent. of respondents had said that the Employment Protection Act had had a major impact upon them.
That general statement that the PSI survey has said, with various numbers in various ways, that the Employment Protection Act has had a major impact on them, has been used by Government spokesmen repeatedly in order to justify what they are doing in respect of small firms. However, at this late stage we feel we must point out that, although it is true that the PSI survey said, for example, that the EPA had a major impact on 17 per cent. of respondents, what it did not say was that that impact on respondents took a form which would justify what the Government are doing.
The overwhelming impact of the Employment Protection Act upon respondents as— was shown most clearly in the PSI follow-up survey which was done as regards 36 firms—was that it took the form of improvements in procedures, of improvements in methods of recruitment and of improvements in the way in which firms went about selecting, training, recruiting and retaining labour. Nowhere else were those improvements more clear than in the small firms.
Therefore, to say that 17 per cent. or 24 per cent. of respondents said that they were influenced by the Employment Protection Act in various ways, is not to say that the Employment Protection Act militated against taking on more people, or that in any way it particularly militated against taking on more people in small firms. The fact is, of course, that the Government and anybody else, if they are to initiate surveys of this kind, must accept the essential principle of using surveys in the formulation of policy, which is that you do not, with respect—not if you are intending to be serious—select those parts of the surveys, those bits of the tables, those scraps of evidence which may assist you in your argument: you decide on the balance of the evidence before you, on the general drift of the evidence, whether that evidence in general tends towards your position.
The stance of the Government in respect of both the PSI and ORC surveys, in respect of unfair dismissal and indeed of maternity rights, reminds one of nothing so much as the remarks of Beatrice Webb to her research assistant Margaret Cole. Margaret Cole came back with two great piles of information, one of which supported the view of the minority report on the poor law and the other which did not support the view of the minority report on the poor law. Beatrice Webb said, "Which supports us and which does not? That which does not support us throw away. We shall write the report on the basis of the evidence that supports us". That is the way in which the Government are approaching these kinds of surveys. We suggest that that is not a professional way of looking at information of this type.
If we look at the overwhelming support of the general drift of the PSI survey, the ORC survey, the Warwick survey and all the other surveys, we see that they indicate that, far from the legislation having a disadvantageous effect upon small firms, in fact it has an advantageous effect on small firms: it makes them rather more careful and rather more structured in their approach towards employees, towards taking on employees, towards training employees and in the end towards the dismissal of employees. It makes them in the end see that they have to have more systematic, structured ways of dealing with these problems.
The fact is that the Government have given in to ignorant, uninformed outcries by sections of its support. The noble Earl, Lord Gowrie, said at column 364 on the 10th June:
"We are quite happy and secure to rest upon our impression, our political judgment, our manifesto commitment: on the fact that this concern was shared by the two other principal political parties"—
in other words, I would say, on anything but the evidence, on anything but the facts. Therefore, I beg to move this amendment.
Lord LYELL: My Lords, we believe that this particular clause, in spite of the very interesting arguments that have been advanced by the noble Lord, Lord McCarthy, provides a very limited exemption. We intend to allow small employers
968
flexibility if they want to do various things and among them would be to expand their business, to meet any needs and particularly short-term needs. We believe that this clause and this measure also benefit employees because it is much better for employees to have some form of limited protection than no job at all.
But the justification for making special provisions for the small firms under this particular legislation has been very fully debated. The noble Lord, Lord McCarthy, mentioned the fairly lengthy debate that we had at an earlier stage, and indeed that debate went fairly late. There was also the further debating that took place in another place. However, the Government have said many times that the surveys commissioned by the Department of Employment do indeed show that the employment policies of significant numbers of small firms have been influenced by the Employment protection legislation.
I think that the noble Lord, Lord McCarthy—indeed all of us—would agree that survey evidence is not necessarily conclusive only on its own feet. The Government certainly have received other evidence and all kinds of evidence, especially spontaneous letters which have been sent to the Department of Employment. Indeed, we have all sorts of other very strong findings from organisations. We have examples from all kinds of employers' organisations, particularly from Scotland, that employment legislation has been a barrier to the smaller firms; and I think they are a substantial proportion of the economy of the country, in spite of some of the phrases used by the noble Lord, Lord McCarthy. I think he used the expressions "ignorance" and "prejudice". I am glad that I remembered and got it right. The noble Lord may say that, but we think such comment is a trifle unfair.
We cannot give an approximate figure of the number of positions that will be created by the reduced kind of protection that we are suggesting in this clause. What we do say is that we hope that employers, particularly the small employers, will no longer feel to the same extent as they do now, and have done for the last five or six years, that it is employment protection legislation which is the last straw in making them decide not to take on extra employees and expand their

969
business. This is one of their problems which they feel particularly strongly about and which we can do something about. It is often pointed out to us—indeed, we have a fairly substantial amount of evidence—that what really worries the smaller employers is the high interest rate and the shrinkage of the home market. Issues like these may lie outside our control, but we do not think that that is any reason why we should not try to help employers where we can.
Noble Lords opposite will agree that Clause 8 provides merely a longer qualifying period for the employees employed in the smaller firms; for instance, firms employing 20 people or fewer. This clause does not change the status of any employees who may be dismissed on trade union grounds and certainly we have no intention of denying to any employees in small firms the right to join a trade union or to take an active part in it by leaving unchanged the qualifying period for the protection against dismissal on medical grounds. We have heard it said that employees in small firms need more protection because small firms' personnel policies are less sophisticated. We would admit this and we would acknowledge that personnel policy in a small firm is different from that in a large firm, but this certainly does not mean that the small firms are ready to dismiss unreasonably. Certainly we wish to encourage small firms, as well as large firms, to be good employers and to carry out good employment practices, and that is why we are going to be producing for employers a leaflet on unfair dismissal provisions.
But we do regard employment protection rights as important. While we think that the balance must be restored between the need for statutory protection for employees and the burden which it imposes on employers, we do not think it would be right, as we have pointed out many times in your Lordships' House and elsewhere, to give special treatment to small firms in any way which would create a permanent class of employee who had no protection whatever. We recognise that protection is necessary in the small firms just as it is in large firms. I should like to make it very clear that this provision will have no effect at all on employees who already are in their jobs when this Part of the Act comes into force,
970
and we shall make this very clear in the relevant commencement order.
I should like to conclude by saying that all of us heartily agree with the opinions which were expressed by the noble Lord, Lord Spens, and echoed by the noble Baroness, Lady Secar, in the Second Reading debate, that in the course of this Bill and in the course of other employment protection legislation we must explain the legislation in a way which the small businessman can read and, above all, can understand and interpret. To that end, and as the Government have already announced in another place, we shall be producing for employers a guide on the unfair dismissal provisions when the amending legislation is on the statute book. For that reason we hope noble Lords will see that this amendment is unnecessary and we believe the clause should stand.
Baroness SEEAR: My Lords, the noble Lord says the Government are issuing a leaflet explaining in detail how the unfair dismissal provisions work, but it is a great pity they do not wait to see whether, when the small firms have this information, it relieves their anxiety. There is a great deal of evidence—everybody is quoting evidence tonight, and we have all got our evidence—that the objection to the unfair dismissal clause in the minds of many small employers is based on a misconception. Up and down the country we are told that we cannot dismiss anybody. Nothing will persuade people that the fact of the matter is that far more employees lose cases of unfair dismissal than win them. This is a fact that simply has not penetrated the minds of a large number of small employers. If we could get that into their heads, I believe that any need that may exist for the relief of these provisions would fall to the ground.
May we not ask the Government to accept this amendment and then to see what will be the effect of better information—which, indeed, the previous Government should have given people—on how the unfair dismissal provisions work? When that is got over, I do not believe it will be found necessary to relieve employers of any of the provisions of the Employment Protection Act.
Lord MOTTISTONE: My Lords, does the noble Baroness not think that the fact

971
that small employers have a misconception about this matter is because the legislation which led them to think that, even if it is not true, was passed by the party of the noble Lords opposite? It is as simple as that. A move in the direction of trying to help the small employer and positively doing something that he thinks will help him—it does not matter if you think it will help him or if all the statistics do not bear out the fact that it will help him—is the reason for having part of this legislation directed towards the interests of the small employer.
I shall not quote statistics to a greater extent than anyone else because we have had too many, but the fact of the matter is that the noble Baroness, Lady Seear, is right. It is what people think that matters. They think that the legislation is against them now, and when this Bill, as it stands, passes they may think that the legislation is in their favour and the particular logjam to which she referred will no longer exist.
Lord McCARTHY: My Lords, I am very disappointed at what the Government have said, but not surprised. The noble Lord is quite right; there is an ideological element in this; the work of Dr. Stanworth shows that this is the case, that the attitude of small firms is related to their ideological beliefs—I not say prejudices—about the Government that introduced this legislation. That is a fact. The noble Baroness, Lady Seear, is perfectly right in saying that the Government would do much better if they told people the facts about unfair dismissal legislation rather than pandering to the prejudices of small firms in this way. All the evidence indicates that small firms have a whole range ofprejudices, not just about unfair dismissal legislation but about the effects of taxation legislation and planning authority rules. The evidence indicates that they are absolutely obsessed by all kinds of factual inaccuracies about the world which surrounds them.
That is only one point. By moving in this way and lifting these particular narrow provisions from their back, the Government are only reinforcing their prejudices. As the noble Lord, Lord Lyell, said, the Government rely on apocryphal evidence, upon anonymous letters and upon the testimony of vested
972
interests. I hope that he will place all this in the Library because we should like to see some of this evidence. With great respect, the attitude of the Government—I do not say of the noble Lord necessarily—towards the evidence which has been put forward by a whole range of surveys about unfair dismissal and maternity rights would not gain them a passmark in the paper on social methods at the noble Lord's old university. It is absolutely deplorable, and we intend to press this amendment to a Division.
Lord LYELL: My Lords, by leave, perhaps I could reply briefly to one point.
The LORD CHANCELLOR: My Lords, with the leave of the House.
Lord LYELL: My Lords, with the leave of the House—and I hope that I shall have it as greater Providence has not yet struck me down—may I say that the noble Baroness, Lady Seear, raised one particular point which I think was relevant to what the noble Lord, Lord McCarthy, had to say. It was that small employers were very worried about the legislation, and that we should have legislation which was, indeed, clear. I know, and I am sure that noble Lords all round the House will know, that it is not so much what is written into the legislation as what employers believe that is said and feel how the legislation treats them. Above all, with small firms it is the amount of time that the proprietor or the management have to spend on particular cases of this type.
The case has been made by the noble Baroness, Lady Seear, and elsewhere, I think by the noble Lord, Lord McCarthy, that the vast proportion of the cases which go to tribunals do not end up in the employee's favour. I would not necessarily believe that that is conclusive evidence. The time that is taken by management in having to go to the tribunals is one of the bugbears which we believe should be spared management. That is all I wanted to point out.
9.19 p.m.
On Question, Whether the said amendment (No. 17) shall be agreed to?
Their Lordships divided: Contents, 43; Not-Contents, 105.

CONTENTS

Birk, B.

Janner, L.

Seear, B.

Blease, L.

Kaldor, L.

Shackleton, L.

Boston of Faversham, L.

Llewelyn-Davies of Hastoe, B. [Teller.]

Simon, V.

Brockway, L.

Stewart of Alvechurch, B.

Brooks of Tremorfa, L.

McCarthy, L.

Stewart of Fulham, L.

Chitnis, L.

Morris of Kenwood, L.

Stone, L.

Collison, L.

Northfield, L.

Strabolgi, L.

David, B.

Oram, L.

Strauss, L.

Donaldson of Kingsbridge, L.

Peart, L.

Underhill, L.

Elwyn-Jones, L.

Phillips, B.

Wallace of Coslany, L.

Gladwyn, L.

Ponsonby of Shulebrede, L. [Teller.]

Wedderburn of Charlton, L.

Hale, L.

Wells-Pestell, L.

Hatch of Lusby L.

Rhodes, L.

Whaddon, L.

Houghton of Sowerby, L.

Rochester, L.

White, B.

Irving of Dartford, L.

Ross of Marnock, L.

Wigoder, L.

NOT-CONTENTS

Adeane, L.

Gisborough, L.

Onslow, E.

Ailsa, M.

Glenkinglas, L.

Orkney, E.

Airey of Abingdon, B.

Godber of Willington, L.

Orr-Ewing, L.

Atholl, D.

Gowrie, E.

Penrhyn, L.

Auckland, L.

Gray, L.

Rawlinson of Ewell, L.

Bathurst, E.

Gridley, L.

Reigate, L.

Bellwin, L.

Grimston of Westbury, L.

Renton, L.

Berkeley, B.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Robbins, L.

Blake, L.

Rochdale, V.

Bridgeman, V.

Hankey, L.

Romney, E.

Brookes, L.

Hanworth, V.

Rugby, L.

Brougham and Vaux, L.

Harvey of Tasburgh, L.

Sackville, L.

Buxton of Alsa, L.

Hatherton, L.

Saint Oswald, L.

Camoys, L.

Hives, L.

Sandys, L. [Teller.]

Campbell of Croy, L.

Holderness, L.

Sempill, Ly.

Clitheroe, L.

Home of the Hirsel, L.

Sharples, B.

Cockfield, L.

Hornsby-Smith, B.

Soames, L. (L. President.)

Cork and Orrery, E.

Hunt of Fawley, L.

Stamp, L.

Cottesloe, L.

Hylton-Foster, B.

Strathcarron, L.

Craigavon, V.

Ilchester, E.

Strathmore and Kinghorne, E.

Cromartie, E.

Kemsley, V.

Sudeley, L.

de Clifford, L.

Kimberley, E.

Swinfen, L.

De La Warr, E.

Lindsey and Abingdon, E.

Swinton, E.

De L'Isle, V.

Linlithgow, M.

Torphichen, L.

Denham, L. [Teller.]

Long, V.

Trefgarne, L.

Dormer, L.

Lyell, L.

Trenchard, V.

Drumalbyn, L.

McFadzean, L.

Trumpington, B.

Duncan-Sandys, L.

Mackay of Clashfern, L.

Tryon, L.

Dundee, E.

Marley, L.

Vaizey, L.

Ebbisham, L.

Merrivale, L.

Vaux of Harowden, L.

Ellenborough, L.

Middleton, L.

Vickers, B.

Elliot of Harwood, B.

Monson, L.

Vivian, L.

Elton, L.

Mottistone, L.

Ward of Witley, V.

Exeter, M.

Mowbray and Stourton, L.

Young, B.

Ferrers, E.

Murton of Lindisfarne, L.

Gainford, L.

Netherthorpe, L.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendments Nos. 18 to 22 not moved.]
Clause 10 [Contribution in respect of compensation]:
9.30 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 23:
Page 11, line 30, leave out ("and the tribunal") and insert ("the tribunal shall first determine whether or not the dismissal is unfair in accordance with Part V of this Act.
(2A) Where the tribunal").
The noble Lord said: My Lords, I will, with permission, speak at the same time to Amendment No. 36. We canvassed this matter in Committee, but looking through the Official Report of the debates, my noble friends and I felt that the situation was not wholly satisfactory, and the tenor of the Government's arguments both here and in another place made us bold to bring the issue back, albeit in a slightly different form. To be brief about the history of the matter, when the Government first introduced the joinder procedure in another place—the joinder of the union or the shop steward or the official who is to pay the contribution

975
for an unfair dismissal—they had a two-stage procedure in mind, as was made clear by the Minister's right honourable friends; that is, that the tribunal would first hear whether there were grounds for a joinder (in the sense that pressure had been used industrially to force the unfair dismissal) and then they would decide to join the union or the official for the contribution third party proceedings. Having carried that view up to a late stage in another place, they then went back on it and said that the employer's claim to join the union must be effective before the hearing, and that meant that everybody would come into the tribunal with all sorts of issues alive from the very beginning without distinction; the employee's claim of unfair dismissal against the employer, the employer's defence to the claim of the unfairness of the dismissal, the trade union's contention on that issue, the employer's claim of contribution against the union and the union's reply to that.
The trouble with that is that the Act makes it clear in what is now Section 63 of the 1978 Act that it is a basic principle that unfair dismissal is to be judged on what the employer did without reference to industrial pressure, and in Committee the noble and learned Lord made it clear that the. Government did not mean in any way to detract from Section 63. He also suggested (on 10th June at col. 397) that the tribunal was perfectly able to sort out all these issues, despite all the various bits of evidence coming to it on the three or four different points during the course of the hearing. When we thought about it, we thought we should ask the Government what their objection really was to having not a two stage procedure—as they themselves suggested at first, because the Government's first suggestion was for a two stage procedure to see if there was pressure—but a statutory procedure which says, "First determine the unfairness of the dismissal and then determine the issue: Was there industrial pressure and, if so, should there be a contribution?"
That does not require two hearings. It requires only the evidence and arguments to be presented in a particular way. If the noble and learned Lord will tell me that it will all be in the industrial
976
tribunal regulations, then I will reply before he says that and tell him that that is not satisfactory. This is a very new procedure and we have many objections, as we made clear in Committee, to the whole notion of the third party proceedings. But if they are to be there and if the Government really do not wish to detract from Section 63—that is, that the pressure should not be considered in determining unfairness—then it is not quite fair not to give the tribunals (not to give the trade unionists at any rate) clear confidence in the fact that the unfairness of the dismissal will be heard before the evidence is given of the pressure which is alleged to have caused it. I do not see how it would cost the Government anything at this stage to be a little more relaxed and engaging than they have been in dealing with our amendments.
Lord MACKAY of CLASHFERN: My Lords, I shall try to be engaging and, if possible, relaxed, and that of course is the procedure we think the tribunal should have—a relaxed procedure without tremendous constraints imposed unnecessarily by Parliament. Section 63 of the 1978 Act is left untouched, and accordingly the question of unfair dismissal must be determined apart from any question of pressure. But why do the tribunal need to have directions that they must first determine whether or not the dismissal was unfair?
I thought that I detected in the noble Lord's speech on the amendment a confusion between determination and the evidence. He seemed to be suggesting at one point at least that they would have to determine the question of whether the dismissal was unfair before they would hear the evidence about pressure, and that would lead to the kind of double dealing that we spoke about on Committee. I believe that the industrial tribunals are of sufficient stature to determine their own procedure in this matter, knowing that there are two distinct questions: first, the question of unfair dismissal; and, secondly, the question of pressure on any contribution that may arise from that. They are directed by Section 63 to determine the question of unfair dismissal apart altogether from any question of pressure. In our view that is all that is required of

977
them. I shall not say what the noble Lord anticipated I might say, and therefore I do not require to answer the answer that he gave—before I said it. I ask your Lordships not to agree with the amendment.
Lord WEDDERBURN of CHARLTON: My Lords, plainly we must leave this as a disagreement. I meant to say previously that some anxiety will be caused among some practitioners in the tribunals over the fact that the matter is left in this way. However, in view of the situation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 25 not moved.]
9.36 p.m.
Earl DE LA WARR Earl DE LA WARR moved Amendment No. 24:
Page 11, line 43, at end insert—
("Indemnity in respect of union membership clauses.
76B.—(1) If in proceedings before an industrial tribunal on a complaint against an employer under section 67 the employer claims that—

(a) he and another person (in this section and in section 76C called "the contractor") were parties to a contract requiring that work done by employees of his for the purposes of the contract should be done only by employees who were members of trade unions or of a particular trade union,

(b) the complainant could not, consistently with that requirement, be employed on that work,

(c) the employer had requested the contractor to consent to the employment of the complainant on that work notwithstanding that requirement,

(d) the contractor had withheld his consent,

(e) apart from the work to which that requirement (or any similar requirement under other contracts to which the employer was a party) related the employer had no work available which was suitable for the complainant to do, and

(f) the employer would not have dismissed the complainant but for that requirement,

then, subject to subsection (2), the employer may before the hearing of the complaint require the contractor to be joined, or in Scotland sisted, as a party to the proceedings.
(2) An employer may not by virtue of this section require more than one person to be joined, or in Scotland
978
sisted, in proceedings in respect of any complaint.
(3) Where a person has been joined, or in Scotland sisted, as a party to proceedings before an industrial tribunal by virtue of subsection (1), and the tribunal—

(a) makes an award of compensation under section 68(2) or 71(2)(a) or (b), but

(b) finds that the claim of the employer (as specified in subsection (1)) is well-founded,

the tribunal shall order that person to pay to the employer an amount equal to the amount of that compensation.
Contribution in respect of indemnity under s. 76B.
76C.—(l) If in the proceedings referred to in section 76B the contractor claims that he was induced to withhold the consent referred to in subsection (1) of that section by pressure which a trade union or other person exercised on him by calling, organising, procuring or financing a strike or other industrial action, or by threatening to do so, the contractor may before the hearing of the complaint require the person who he claims exercised the pressure to be joined, or in Scotland sisted, as a party to the proceedings.
(2) Where any person has been joined, or in Scotland sisted, as a party to proceedings before an industrial tribunal by virtue of subsection (1), and the tribunal—

(a) makes an order under section 76B, but

(b) finds that the claim of the contractor (as specified in subsection (1)) is well founded,

the tribunal may make an order requiring that person to pay to the contractor a contribution in respect of the contractor's liability to the employer by virtue of the order under section 76B.
(3) The amount of any contribution ordered to be paid under this section in respect of any such liability shall be such as the tribunal considers to be just and equitable in the circumstances, and may constitute a complete indemnity.").
The noble Earl said: My Lords, I beg to move this amendment, but before speaking to it I have to ask for the indulgence of your Lordships in view of some of the phraseology that I shall use. For reasons connected with the lawyers when the amendment refers to the "contractor", I shall call him the "client", and when it refers to the "employer", I shall call him the "contractor". This may seem double dutch to your Lordships, and it did to me until the lawyers explained it;

979
but, of course, the chap who pays is in fact the contractor, and I suppose that there is somebody called a contractee. However, since this appears confusing to me as a layman, I am using ordinary lay words and I hope that I shall be able to carry the understanding of your Lordships. The legal advisers felt strongly about this matter, and who am I to take issue with the majesty of the law?
The amendment arises from the amendment of the noble Lord, Lord Orr-Ewing, at the Committee stage about union-only clauses in commercial contracts. My noble friend Lord Caldecote, whom I am sorry to say is not with us because he is in New York on his company's business, in the earlier debate concentrated on the question of where financial responsibility should lie when the result was unfair dismissal. My noble friend the Minister was sympathetic and so we are, with the help of the Government, moving the amendment in its present form.
The amendment does not solve all the problems of these very common and very unattractive type of clauses. Contractors, builders—call them what you will— dislike them intensely. Under the Bill as it now stands a contractor's position could be made worse because from now on he might have to face large claims for unfair dismissal, and of course he may be forced to accept these clauses if he wants to stay in business.
So the first part of the amendment—the proposed new Section 76B—gives the contractor the right to join the client who insists on it in any resulting claim for unfair dismissal. Then, subject to the sequence of events—which I shall not run through—which are set out in the proposed new Section 76B (1)(a) to (f), the offending client will himself be landed with the Bill for the whole of any compensation awarded against the employing contractor to unfairly dismissed employees. This should make anyone who feels like making these monstrous union-only demands on a contractor think two or three times before he makes them—and, in my submission, quite right, too!
This, then, very briefly, covers the first part of the amendment, and deals, for instance, with a Left-Wing local authority
980
who puts these clauses in just because it wants to, without any particular pressure from a union or unions. But very often the client himself, if he is, say, a big builder on a large building site, finds himself forced by direct union pressure to demand from his sub-contractors these fearsome union-only undertakings. In cases such as these, the person who has been subjected to these union pressures, which ultimately.down the line, result in dismissals, can under the proposed Section 76C join the union. The tribunal, if it then finds the dismissal to have been unfair, can require the union to pay as much of the compensation as it deems fit. So these two new sections, when taken together and added to the existing Clause 10, seek to ensure that whoever is originally responsible for this type of unfair dismissal is the party who ultimately gets "clobbered".
Of course, it goes without saying that the person who really suffers is the poor fellow who loses his job, but I hope that, by providing that the financial penalty is awarded against the offending party, these vicious practices will be squeezed out of business life. It is for that reason that I hope this amendment will be supported by noble Lords, and that it will find favour with my noble friend the Minister. I beg to move.
Lord ROCHESTER: My Lords, my noble friends and I have sympathy with this amendment. I am not sure that I altogether followed the definitions used by the noble Earl, Lord De La Warr, but I am quite prepared, with him, to put it all at the door of the lawyers. At any rate, I think I understand well enough what it is that he is aiming at, and personally found it rather easier to comprehend by reference to what the noble Viscount, Lord Caldecote, at Committee stage, I think called the client-employer, if that does not make confusion worse confounded.
At any rate, we have sympathy with what underlies this amendment as being one which, in the circumstances which the noble Earl has described, places responsibility for dismissals which are clearly, it seems to me, unfair, where that responsibility belongs; namely, with the person I shall call a client-employer, and

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ultimately with the union or unions concerned. If I have understood that correctly, I and my noble friends are happy, on that basis, to support this amendment.
9.45 p.m.
Lord WEDDERBURN of CHARLTON: My Lords, perhaps a different voice should be allowed to intervene for a moment. Noble Lords seem to assume that situations of this sort are a priori vicious and monstrous; and, of course, their sympathies, or apparent sympathies, are with the man who has lost his job. Also they are worried about the large firm forcing a contract on the small firm that they do not like. That happens so often in society that one wonders why we have not heard their voices on that more often. The idea that there is anything new in a group of workers who have organised in order to acquire a balance of bargaining power, trying to spread the principle of unionism by various pressures through their employer, through his customers and so on, is as old as trade unionism in the modern world itself. The union label of the 19th century in certain trades, among bakers, hatters and then in the general unions, tried to use this form of pressure, such as they had of it, to extend trade unionism. There is another set of values here in the organised workforce which also ought to have its say.
But the Government have gone down the road of joinder and are listening to the siren voices of those who now invite them into the stream of double-joinder and triple-joinder, so that soon we shall have dozens of people joined in tribunals. That hits at one other point. They have gone past the point which Donovan told us not to pass; he told us not to use the industrial tribunals for cases involving industrial conflict; not to use the industrial tribunals for anything other than employee against employer. Now, under Clause 10 (and now under this double-joinder situation, even more delicately) the tribunals will have to judge what is a just and equitable contribution; and in order to judge that they must judge the merits of the strike.
The Government may wish to reflect on that when they have the Act on the statute book: that they will have to judge the merits of the employers' contribution to the strike; and they will become
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politicised. Another sad thing about this Bill is that in the sociological sense the industrial tribunals and the Employment Appeal Tribunal are about to become politicised, to be pushed into an area where the Donovan Report said that if you are trying to do something legal, do not do it in the same courts as those that build up confidence on unfair dismissal cases. Here is an example of the natural development of Clause 10, the double joinder; and in the Green Paper no doubt we shall have others, and it will wreak havoc with the confidence that the tribunals have built up.
Lord MOTTISTONE: My Lords, will the noble Lord not agree that all that this is trying to do is to share the cost of some sort of action? It is not that anybody is being prevented from doing anything. It is that anybody who is responsible for initiating a particular framework is going to have to pay his share instead of it all being carried, possibly, by a victim company who appear in the sense of a victim because they did not initiate the action which is involved in this amendment. I should have thought that the noble Lord is rather over-gilding the situation and making more of it than would be reasonable. However, I will leave it to my noble friend on the Front Bench to deal with the problem.
The Earl of GOWRIE: My Lords, I think that my noble friend, Lord Mottistone, brought the noble Lord, Lord Wedderburn, down to earth. I think that the metaphor that I used to use in childhood is appropriate: that the noble Lord, Lord Wedderburn, was over-egging the pudding in this particular context and my noble friend brought him back to the amendment. I would say to the noble Lord, Lord Wedderburn, that, of course, there are always good reasons in anything governing collective behaviour for not doing things; but I think he must realise that the time has come for unions to re-enter the community, as it were, and for themselves to start looking critically at practices which are not simply forcing Governments into activities but which are alienating most ordinary people from the movement itself. I share with the noble Lord, Lord Wedderburn, a feeling that that would be highly undesirable. We

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believe in trade unions; we believe in unionism. We are extremely unquiet at practices which attempt to discredit responsible unionism, and they give us no satisfaction whatsoever.
In that general context, I welcome the amendment as being a sensible and necessary provision bringing some justice into the area of contracts requiring union labour only. It is necessary in our view because it protects sub-contractors from having to meet the cost of compensation for unfair dismissal cases—that was the point clearly brought out by my noble friend Lord Mottistone—arising only because the dismissal of the non-union member happened to be forced upon the employer or contractor by a union labour clause in the contract. This amendment ensures that sub-contractors will be fully indemnified in such circumstances should they be forced to join their client. It also enables the client to produce the contract to join the union to any proceedings and the union in turn may have to indemnify him for anything up to the full amount of compensation involved.
There was considerable feeling among noble Lords at Committee that union labour only clauses needed to be countered and countered strongly. We sympathise with such views but we doubt whether some of the solutions that were proposed at the Committee stage were practicable. They vitally affect the interests of other parties who have not been consulted directly on the matter and at heart impinge on the wider issue of immunities which is, as your Lordships are aware, going to be the subject of a Green Paper later in the year. It is really the essence of our approach that we start in this Bill from a profoundly unsatisfactory situation in that the law, for historical reasons, has grown up in this country based on immunity rather than rights and obligations; but the fact that that situation is unsatisfactory or open to question does not mean to say that nothing can be done within the context of the overall immunity framework. The difficulties do not attach to the amendment we are discussing. It is commendably modest and deals with the cost issue brought out by my noble friend Lord Mottistone. As my noble friend Lord De La Warr said, it will provide a real disincentive against such practices,
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and I therefore commend it to your Lordships.
I should like just to add that we do not intend to leave the matter at that. Particularly in view of the concern of many parties about such contract clauses, there is in our view clear scope for a voluntary initiative on this matter and we are anxious that employers should desist from and resist the placing of union labour only requirements on contractors. We have recently written to the CBI—who are themselves on record as opposing such clauses—enlisting the CBI's aid in such a voluntary initiative. The code of practice on the closed shop will give a lead by including a declaration to the effect that the practice of imposing union labour only requirements on contractors is unreasonable.
The contractors themselves might explore further how they might co-operate together to resist the spread of this practice and my right honourable friend the Secretary of State for Trade is considering whether any amendment to restrictive trade practices legislation may be required to facilitate that kind of co-operation. I should say that there has been special concern about the use of such clauses in public sector contracts. I do not know frankly how prevalent the practice of union labour only clauses is among public sector purchasers; but I can say that I know of no instance where a Government department or a health authority has used a clause of this kind, and certainly our standard forms of contract do not contain such a clause.
In any event, the Government will take care to ensure that voluntary action taken in the private sector is appropriately reflected in the public sector. Also, of course, we should expect these industries and authorities, as responsible employers, to have full regard to our forthcoming code of practice on the closed shop. The amendment is not all that will be done to counter union-labour-only clauses. Nevertheless it is a necessary and a fair first step, which protects the position of subcontractors, and I would urge the House to support it.
On Question, amendment agreed to.
[Amendment No. 26 not moved.]
Clause 11 [Notice to employer]:
9.56 p.m.
Lord McCARTHY Lord McCARTHY moved Amendment No. 27:
Page 12, line 24, leave out subsection (2).
The noble Lord said: My Lords, this amendment is to take out subsection (2) of Clause 11: that is really to leave out the second part of the Government's new set of provisions requiring in maternity cases for the exercise of maternity rights, additional processes of notification. The fact is, as the House knows, that Clause 11 restricts the present rights of return in three new ways: first, by additional application procedures; secondly, by additional confirmation procedures; and, thirdly, by additions to the procedure for notice and the period of notice of the final decision to return. We suggest that the House should agree to delete the second part of that, which deals with confirmation procedures.
The argument of the Government for the need for additional confirmation procedures has always been that in the absence of a formal confirmation procedure the employer, and especially, of course, the small employer, who is always so dear to their hearts, is put in a difficult position. He has no way of knowing whether a woman who goes out on maternity leave will in fact come back, and in the period in which she is away he has to hold open her job and, especially in the small firm, it is said that this is a difficult problem.
I think it is worth reminding the House why we have provisions of this kind at all. We have such provisions, and indeed we have all the maternity rights introduced under the Employment Protection Act, because it was thought to be an essential element in providing for a situation of non-discrimination so far as women in employment were concerned. The argument was that if women were to have a fair chance of progress and promotion in jobs, when they necessarily found they had to be absent for maternity reasons they had to have some right of return and some right of reinstatement or, quite clearly, they would be put in a disadvantageous position so far as men were con-
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cerned. So, in a sense, this was always a part of the policy of non-discrimination.
In general terms, in that sense, it was not opposed by the party opposite. Their argument has always been a much narrower one in terms of the impact of these particular aspects of maternity rights on employers. The credibility of this argument, it seems to me, has always turned, and must always have turned, upon assumptions about the proportions of the labour force, especially, but not entirely, in small firms, who were entitled to exercise such rights, and the proportion or percentage of the labour force who actually did exercise those rights. If a significant part of the labour force of a small or medium-sized firm were entitled to exercise these rights and if they did actually exercise them, then of course it might be reasonable to say that they were unduly restrictive so far as the employer was concerned.
It is true that until comparatively recently we have had to deal with this problem in a kind of welter of apocrypha—anecdotal evidence. Thus, at columns 406 and 407 of the Official Report for 10th June the noble Earl, Lord Gowrie, said:
"The whole emphasis of these very minor changes"—
that is, the changes proposed in the Bill—
"to the existing legislation is to remove the disincentive effects on employers, particularly very small employers, of taking on new women. That must be a matter of judgment and it is hard to quantify…
"The right of employers is to provide"—
I think that Hansard meant the need of employers—
"for the sudden unexpected event within the context of their business which makes it impracticable to take the woman back on that particular day. To formalise notification in the way which appears superficially equitable to the noble Lord would, in fact, rob the employer of this flexibility".
As I understand the argument, what was being said, without supporting evidence—and perhaps there was not supporting evidence at that time—was that there was a fairly frequent need for the employer to hold open jobs, especially in the small firm, and that this was a disincentive, maybe even to the employment of women, and particularly women of maternity

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age, in small firms. But, fortunately, we now have the facts. The report of the Policy Studies Institute on maternity rights, which was commissioned by the last Government, now enables us to avoid apocrypha.
The noble Earl, in answer to a Question which I asked him in the House the other day, admitted that he did not have this evidence at the time when the Government concocted their Bill. He said, on the one hand—and I am quoting from column 344 of Hansard for 2nd July—that such surveys are useful. He went on:
"I find considerable justification for the Government's measures in this survey if I am prepared to look through a particular lens".
I want to look through some of the lenses at the maternity rights provisions of the PSI survey, to see what kind of lens it would be. Fortunately, the noble Earl went on to say some other things about his attitude to these surveys. He said:
"You cannot place any judgment of any coherence on surveys of this kind"—
though, of course—
"They are useful…I give very little weight to surveys"—
though, of course, he finds—
"considerable justification for the Government's measures in this survey".
He went on:
"It seems to me to have very little relevance".
So in the light of what we now know of the Government's attitude to the PSI survey, what do we find? Let me just give a few of the facts from this survey. First, 40 per cent. of women in small firms, about which the Government are particularly concerned, have no rights at all because they are part-time workers. Secondly, so far as women as a whole are concerned, only 50 per cent. in all firms who have maternity situations have statutory rights, because they have not been at work long enough to qualify for their statutory rights. Thirdly, 50 per cent. of those who have statutory rights have no intention of returning. Fourthly, in small firms—and this is where we really get to the point—of, for example, 28 women, only 15 per cent. of pregnant women give notification of their intention to return. If we put all these figures together we see, as the writer of this
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survey shows in his last chapter, that there is no substantial quantifiable problem, so far as maternity rights are concerned, even for large firms. For example, firms who employ 100 women, on average, will be troubled by four women going off to have babies each year and only 50 per cent.—namely, two women in a firm employing 100 women—will have statutory rights at all. Only one of those two women will give notice of a desire to return, and only once in three years will one woman come and demand reinstatement. This is the extent of the problem.
Coming to small firms, we find that, on this basis, firms with 25 women—partly because small firms, for the reasons I have given, will tend to employ fewer women with statutory rights—will be in the situation of somebody coming along and demanding reinstatement once every 12 years. If firms employ 10 women, they will find that somebody will come along and ask for reinstatement, in the exercise of their statutory rights, once in 30 years. This is the measure of the problem on evidence available to the Government and sponsored by the Government. In such a context, I cannot see how the Government can cover their nakedness. They must accept this amendment.
10.6 p.m.
The Earl of GOWRIE: My Lords, I am very glad—indeed, I am grateful to him—that the noble Lord, Lord McCarthy, recognised that there is a relatively narrow difference between the party opposite and ourselves and that both are equally committed to equal opportunity for women at work. I have special departmental responsibilities in this area and the one thing that tends to raise my choler in an otherwise, I hope, patient temperament is any suggestion that the Government have anything other than an enormous interest in women entering work, remaining in work and returning to work, should they leave, whether for maternity or for any other reason. We have that interest politically, we have it morally and we have it economically.
The noble Lord and I have crossed swords over this narrow difference of the PSI survey—and, indeed, of another survey which was not raised by the noble Lord,

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Lord McCarthy, this evening—on several occasions in the past. Those of your Lordships who are gluttons for the punishment of discussion about industrial relations legislation may have spent last Sunday watching the noble Lord, Lord McCarthy, and my honourable friend the Under-Secretary in another place debating this same issue on television at 12 o'clock. I cannot remember the identical arguments on television at 12.30, or whatever it was, last Sunday, but as I remember it, the noble Lord, Lord McCarthy, produced his survey and my honourable friend produced a letter from the Scottish Development Agency. They waved these pieces of paper at each other, and enlightenment and a good time was had by all viewers, I hope.
Our contention is that it is extremely difficult to measure the disincentive effects of any activity. One can ask people who employ women, or who have employed women, what the effects of a given piece of legislation or a legislative proposal may be. But it is very different to quantify what the effects may be on very small businesses, which are in issue here, because one does not know whom they might or might not have taken on.
I am not dismissive of surveys. Indeed, I was one of those responsible for having the PSI survey published, as I think at Question Time the noble Lord, Lord McCarthy, was kind enough to recognise. But it is semantically wrong of the noble Lord to call surveys of opinion facts. They are not. They are surveys of a given sample of opinion. We weigh them but we do not give them any more weight than that. The noble Lord is peculiarly indifferent to surveys which do not fall within the bounds of his interest, like attitudes towards the closed shop and other matters, so I think that there is a certain amount of sauce for the goose and sauce for the gander in these particular survey arguments.
Having got that off my chest, and I hope I shall not need to repeat it in connection with all the other maternity amendments, I should like to come quickly to this particular amendment, the effects of which would be to remove one of the provisions in the clause enabling an employer to obtain confirmation within a reasonable period after the baby's birth that the woman intends to return to work.
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We are not talking here about any rights or non-rights of returning to work after having a baby; we are simply talking about what notice might be given to the employer. I am not one of those who has the distrust of anecdotal evidence expressed by the noble Lord, Lord McCarthy, not being a sociologist; one of the main criticisms of the present maternity legislation is that an employer cannot be sure whether an employee really intends to return to work, and he may have no contact with her from the time she leaves until she is on the point of returning. That makes a nonsense of his manpower planning and obviously it bears more hardly on a very small employer than it does on a larger employer.
The notification that the Bill proposes—the additional notification—is merely an easy-to-understand solution to this admittedly narrow problem and I cannot believe that it will be a burden of any kind to the women concerned. We have modified the original proposals so that the woman is not expected to take the initiative in sending this notification, and so that she is reminded that she will forfeit her right to return if she does not reply in time. In fact, all she has to do is to answer a letter, and it really is rather insulting to women to assume that this will be an immense burden to them.
If is it not reasonably practicable for her to reply within two weeks, she does not even have to; she must simply reply as soon as she can and only those employers who really need to know whether she still intends to return will ask for this additional notification; that is, not earlier than 49 days after the birth. But for those who do send the written request the information will be a very real help to them in their manpower planning. We have dealt with many issues of great moment in this Report stage and we shall have more issues of great moment tomorrow and maybe later today, but I really do not think that this is an issue of great moment. However, I think it has sufficient weight for a sufficient number of women and a sufficient number of employers to be a modest improvement for all concerned. It imposes no large burdens and I ask the House to resist the amendment.
Lord McCARTHY: My Lords, I am very disappointed in what the noble Lord

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has said. I agree with him that it is not a matter of great moment; it is a matter where the Government's arguments are particularly thin. It is a matter where they cannot argue, as they can justifiably argue on a large part of this Bill, that they believe that it is necessary to change the balance of power in industry and therefore they have to do something about the collective power of workers organised in trade unions. This has nothing to do with that. For the most part this is about unorganised women. That is what we are complaining about. To respond to the statement that surveys are tossed about this House and that we have attitudes to surveys that do not fit with what we want to see in surveys, I must press the noble Lord that what one says about surveys is quite technical; what kind of credence one gives to a survey is a matter of the response rate, it is a matter of whether or not there are leading questions, a matter of whether it is sent out by interested or disinterested parties and a matter of how far one thinks there is a representative structured sample. On all these four tests the surveys that we are using from the PSI and the ORC and the Warwick Survey are immeasurably superior to the 2 per cent. and 3 per cent. biased samples which come from organisations of small employers and institutions which turn out to be front office organisations for the Conservative Party.
So it is quite untrue and most unfair to say that we are using biased surveys. We are trying to use the general principle of surveys with the balance of the evidence and the drift of that evidence, and we are saying that if you take that general principle the surveys that we have, most particularly the PSI in this case, do not support the position taken up by the Government.
Finally, when he says it is insulting to say that women cannot fill this form in, may I say that we are not suggesting that women cannot fill the form in; we are suggesting it is an additional burden. We have put down a whole series of amendments trying to control the way that that burden should be distributed, suggesting, for example, that there might be a standard form. All these things have been rejected by the Government. Therefore, although this is not an important issue and by no
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means the most important issue, it is one of the most deplorable issues upon which the Government have maintained their usual obstinacy.
On Question, amendment negatived.
[Amendment No. 28 not moved.]
10.16 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 29:
Page 13, line 4, at end insert—
("(4) There shall be added to subsection (3) of section 64 of the 1978 Act the words "or to the dismissal of an employee which is unfair by reason of section 60 of this Act where that employee has been continuously employed for thirteen weeks."").
The noble Lord said: My Lords, it seems to be falling to me to move the more dove-ish amendments tonight—an unusual role, but one that gives me some hope that perhaps before the night ends the Government will lean sufficiently in our direction to say that we have some merits. This amendment relates to a question discussed in your Lordships' Committee, where we put forward an amendment to strike out the need for a qualifying period of service in respect of women dismissed by reason of pregnancy. I appreciate what the noble Earl has said, that this would be one of the matters in which he has a particular interest. My noble friends are not taking my words in the manner I meant, and I am sure the noble Earl did not understand them in that light.
We put forward the fact, for example, that the Equal Opportunities Commission is very disturbed about the way in which there is evidence that women are dismissed on grounds of pregnancy in a rather unfair manner. We do not have a survey to offer the noble Earl on this subject and I suspect he has not got one to offer back. But there is a series of well known situations, no doubt more known to him through the Commission than to me, and in the debate in Committee he was not disposed to deny that there was a problem. What he did say was that our suggestion to get rid of the qualifying period of service was wrong. On 10th June, at column 411 of the Official Report he said:
"Employers could be understandably anxious at the prospect of employees with no service being able to bring claims for unfair dismissal on this ground".
I take that point, that to give no service qualification period was perhaps an incorrect suggestion to meet the problem. He went on to say in the same column that the last Government found no reason to distinguish between this sort of dismissal and the generality in terms of the qualifying period, and I assure him that it never gives me great anguish to say that my own party gets things wrong in the same manner that the Government may be getting them wrong. We said in Committee that we hoped the Government would think about this matter again and take this opportunity to extend a small piece of justice towards women dismissed in this situation.
We suggested that there should perhaps be a shorter qualifying period, in the sense that pregnancy is not a similar ground for dismissal, surely, on reflection on the experience of the legislation that we now have, as the ground for misdemeanours like misconduct. If the noble Earl repeats the point that they cannot be treated in the same way as inadmissible reasons—that is, dismissal by reason of trade union activity—that is no doubt a fair point in reply to what we put forward in Committee. But is it not the case that there is sufficient evidence for the Act to be adjusted so that women who are dismissed by reason of pregnancy enter into the right to complain of the unfairness of that dismissal after a modest period of service? If the Government think we have chosen the wrong period, thirteen weeks, no doubt that could be put right on Third Reading. But surely there is a case for this Act to carry forward a small piece of law reform in industrial relations. Previously the noble Earl did not deny that there was a problem. The Equal Opportunities Commission says that there is a problem. Could the Bill perhaps be the place where a small piece of justice is offered to women who are apparently fairly frequently being dismissed on grounds that are rather unjust and in many cases do not have the 52 weeks which at present is necessary? I beg to move.
10.21 p.m.
The Earl of GOWRIE: My Lords, I too feel certainly extremely dove-ish at this point. I am a little puzzled that the noble Lord sees a problem here. He has fairly met my point in advance—that is,
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that the previous Government saw no reason to make this special distinction for pregnant women in unfair dismissal, but they may have been wrong. Indeed, they may have been wrong and we have looked at the matter with as clear and as objective eyes as we have been able.
We are all, as he said, surveyless in this area. It seems to me that my instincts are that nowadays two incomes are extremely important to many households and that many women who are pregnant, particularly younger women, are quite happy to work on until quite a late stage in their pregnancy and to return to work relatively soon after their delivery. We spoke about that when discussing the previous amendment.
Therefore, as a matter of instinct or hunch, I would be reluctant to see anything pass into statute which might be against the interests of women, in that it could conceivably make employers more reluctant to take on married women who were perhaps evidently pregnant. However, I do not lay enormous weight on that. What I would give more weight to is that the noble Lord, Lord Wedderburn, is well aware that I am a lay figure, but I understand from my notes that pregnant employees have the protection of Section 60 of the Employment Protection (Consolidation) Act 1978, and that that provides that dismissal solely on grounds of pregnancy is automatically unfair. So it would seem to me that, as regards the dismissal of a pregnant woman that came to an industrial tribunal, the onus would be on the employer to show that there were very severe reasons for his having dismissed the employee, because Section 60 of the Employment Protection (Consolidation) Act is so unambiguous. So, I think that my resistance is in no ill spirit, but I simply cannot see that what the noble Lord is suggesting is in any way needed.
Lord WEDDERBURN of CHARLTON: My Lords, I did not rehearse the whole argument that we rehearsed in Committee. One of the factors of which the noble Earl will of course be aware, and which must be in his brief but which neither of us has mentioned, is that until this year there was some expectation that the Sex Discrimination Act might cover a case of this kind. But in the

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decision of Turley v Allders Department Stores, mentioned in Committee, that view now appears to be incorrect. So no help can be afforded to the pregnant woman, without a qualifiying period, who is dismissed by reason of the Sex Discrimination Act.
It is a little difficult for me to take the matter very much further. That there is a problem seems to be generally agreed. The fact that Section 60 puts a requirement upon the employer does not alter the point about the qualifying period. I am rather disappointed that the Government could not see their way to introduce an amendment along these lines. Obviously, it is the kind of point which is not that controversial in party terms, but perhaps one could ask the Government to have a final look before they bring the Bill forward for Third Reading. In that spirit I beg leave to withdraw the amendment.
The LORD CHANCELLOR: My Lords, I think that the noble Baroness was rising when the noble Lord sought to withdraw the amendment. Perhaps it would be better if I do not put the matter to the House yet.
Baroness SEEAR: My Lords, I am grateful. I only wish to rise to support this amendment, or at least to support the suggestion that the noble Earl the Minister should look at it again. As he has said, this is not a matter of great importance, but it is one that can be of quite significant importance in individual cases. If it is really covered already in the Act then of course there is no point in covering it twice. But if there is any doubt as to whether it is covered, then surely the shorter period which is proposed in the amendment has much to recommend it. It would do little harm to have it incorporated and it would be extremely welcome in many quarters if the Government were to see their way to think about it.
The Earl of GOWRIE: My Lords, I understand that I need the leave of the House to reply; I will try to do so very quickly. I am advised that what I said about Section 60 of the Act is right. But the noble Lord, Lord Wedderburn, is quite fair in raising the Turley v Allders
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Department Stores case. The issue there was not that the lady in question was pregnant, but the qualifying period. Therefore the issue is whether one should make this special distinction on qualifying period which the last Government did not see as being necessary and which at the moment we do not see as being necessary in respect of pregnant women.
I think it would be going too far for me to say that I will look at this point between now and Third Reading. I could not offer real hope of bringing in an amendment to this effect between now and Third Reading, but I will undertake, as a Minister directly responsible here, to monitor the situation over the next six months or a year. There is no reason why we should not return with an amendment, should life prove that one is needed. Our contention is that it is unlikely that that will happen, but I will keep a very close eye on the situation, and if any of your Lordships wish to keep me up to the mark on that statement in the form of questions or examination of some kind I will do my best to give fair answer.
Lord WEDDERBURN of CHARLTON: My Lords, I feel we are doing rather well on this amendment. If the noble Earl, in the course of his consultations, could have special consultation, as I am sure he will, with the Equal Opportunities Commission on this matter, who knows, it may be that by the time the Bill has gone back to another place there could be a small drop put into it that would bounce back here very quickly and, from us, on to the statute book. But I note that the noble Earl is not giving us that assurance. I am glad he is going to look at the matter. I beg to leave withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 30 not moved.]
Clause 12 [Right to return]:
10.29 p.m.
Lord McCARTHY Lord McCARTHY moved Amendment No. 31:
Page 13, leave out lines 6 to 20.
The noble Lord said: My Lords, this brings us to Clause 12, which is the other clause dealing with maternity and particularly with the right to return. The effect of our amendment, which is to

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leave out lines 6 to 20 on page 13, is in fact to set aside the situation which the Government are proposing, where the right to return is reduced for women employed in firms with less than five employees and where the employer can argue that it is not reasonably practicable to permit them to return and that he cannot provide suitable alternative work on not unfavourable conditions. We are suggesting that those parts of the Bill should be deleted.
Once again I have to return to the PSI survey. Obviously, if the figures are correct, those with less than five employees still face the problem, once in every 60 years, of a woman who actually wants to return. That is the basis and extent of the problem. Again, if we look not simply at the PSI survey but at many other surveys which have been done and many other fieldwork investigations on women's employment in small firms, we find that, quite contrary to the views which are often expressed on the other side of the House, women in firms of very small size are paid significantly less than they are paid in firms of somewhat larger size. They find it rather more difficult to return to work after they have had babies because there is little chance in firms of that size that there will be flexi-time arrangements, creche arrangements and things of that kind.
Therefore, we are not dealing here with a group of women who are not in need of the statutory protection; they are in fact very much in need of the statutory protection and we know on the basis of the PSI survey that the extent of the imposition on the small employer is quite frankly negligible.
I think that the Government should try to appreciate, even at this late hour, what a provision of this kind in practice will mean to almost certainly an unorganised person working in a small firm. The fact is that on many occasions she will be told that it is not reasonably practical for the employer to re-engage her. What does she do when she is told something of that kind? The fact is that she can only find out whether or not that is reasonable for the employer to say by going to a tribunal. Only if she takes the case to a tribunal will she find someone who will tell her whether or not the employer's interpretation of his legal
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responsibilities is, in fact, reasonably practical. We would suggest that if the Government think about this they must come to the conclusion that this is a curiously mean-minded aspect of the Bill, and that in the great majority of cases women in situations of this kind will not challenge what is said by the employer as to whether or not it is reasonably practical.
The noble Earl is quite justifiably proud of the provisions in other parts of the Bill, which we shall reach in a moment, except that we have no amendments to move dealing with the ante-natal rights that he has inserted in the Bill. This suggests to me that his heart is in the right place. Although he says that he is dove-ish tonight—and he has not yet flown into our dovecote—perhaps he might offer us a small olive branch. He could feel a little warmer still, not simply about ante-natal provisions, but about deleting this particular part of this rather nasty clause. I beg to move.
The Earl of GOWRIE: My Lords, although it is not directly relevant to the amendment, I think it would be worth reminding the House that relative to our European Community neighbours, we treat issues of pregnancy and employment very well. We have a generous amount of leave permitted in the United Kingdom—up to 29 weeks after the birth as against an average in other Community countries of six to eight weeks of paid post-natal leave. Therefore, I think that we have nothing to be ashamed of here. As the noble Lord, Lord McCarthy, fairly said, I am indeed proud of the fact that we are adding to this Bill a new right giving women leave for ante-natal care and ante-natal tuition. I think that this is a good thing to have done.
But there is a talon concealed in the dovecote of the noble Lord, Lord McCarthy, because there is a slight implication here that we are taking away a right which has been given to women in respect of reinstatement. If we examine what the real situation is, although that is technically true, in the real world I do not think it would be regarded as in any way emotionally true. We are not trying to create a two-tier system or to renege on any women's rights. We are simply recognizing certain practical

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realities of the working place and saying that employers do not have to do what is not reasonably practical for them once they can show, either to the satisfaction of the employee, of the woman who seeks to return herself, or—if she does not accept that—to the satisfaction of the tribunal that it is not reasonably practical for the firm to take her back. This exemption relates only to the very smallest of firms and is strictly defined. It is having six employees or fewer. It is not a blanket exemption, and the onus is quite clearly on the employer to prove that he qualifies that it is not reasonably practical for him to give her her job back, otherwise all the rights of reinstatement, subject to the notification procedures which we have discussed, remain for women.
I do not think that we can reasonably go further than that. I think that we have the balance right regarding the interests of the very small employer. When I talk about his interests I am not simply and cynically, as the noble Lord, Lord McCarthy, seemed to suggest, appealing for his support or his vote. I am concerned about potential disincentive effects which, in my judgment, cannot be measured by surveys, whether conducted by the PSI or anybody else, on hiring women who are pregnant or who may become pregnant. That is why I would hope, in the interests of women as well as in the interests of the smaller employer, that this modest provision can go forward and the amendment be resisted.
Lord McCARTHY: My Lords, the noble Earl makes four points. He says first that we are better off in many respects than other countries. So in some respects we are, but in general in other countries they do not have qualifying periods so that we are not universally better off. Secondly, he says in the real world he does not feel there would be much resentment of this. If he would look in the postbag that I am sure he gets, as I do, from women's organisations, from the Equal Opportunities Commission, from all kinds of pressure groups in the women's movement, he will find that this is an aspect of the Bill which is particularly resented by them.
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He talks about the onus of proof when women get to the tribunal. Of course I accept that. The central point I was trying to make is that, for the most part, women in this context will not get to tribunals. They would have to go to a tribunal to find out about the onus of proof and to find out whether their employer has reasonably interpreted this Bill. I would suggest that the great majority of women who receive a letter saying it is not reasonably practical will feel that they have to conform to what is being said. Finally, he said it is not reasonable to go further. It is not only reasonable to go further; it is easy—he could drop this part of the clause.
The Earl of GOWRIE: My Lords, before the noble Lord sits down, and with the leave of the House, may I answer one point of fact that he made about my postbag, or about the representations which have been made to me. We did proceed throughout this Bill by means of consultation, and I am perfectly happy to admit to the noble Lord that when we suggested that this particular exemption apply to firms of 20 employees or fewer we did get substantial representations from women's organisations and indeed from individuals. Since, in sensible response to a problem which we were always trying to target on the very small employer (and maybe at 20 we drew the very small employer too widely) we changed our minds and altered it down, I for one have received nothing at all.
On Question, amendment negatived.
10.39 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 32:
Page 13, line 9, leave out ("employees") and insert ("workers").
The noble Lord said: This is one of two points that follow my noble friend's description of this part of the Bill about which there is a rather deep division of opinion between the Government Benches and ourselves. Approaching it, as we do, with the belief that this is a very unfair and unnecessary relaxation of the rights of women in very small firms, we naturally wish to press the Government upon two matters that were discussed in Committee but were not quite the same as these amendments. The first is this Amend-

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ment 32, which I quite appreciate in a sense goes with an amendment we did not move, Amendment 18, because it relates to a cut-off point for rights in small firms. Amendment 18 was about the cut-off point of 20 employees for unfair dismissal rights. This is the cut-off point of five workers for maternity rights to retire.
The proposal that the word "employee" should not be used rests, I think, on a number of grounds. First, we are encouraged that the Government themselves accepted at Committee stage a clause—Clause 2 of the Bill as it now is—which is not about the same matter but which applies a cut-off point to the area in which the employer must respond favourably to a trade union request for a ballot on his premises. The cut-off point there, in Clause 2(3)(b), is where the number of workers employed by the employer added to those of an associated employer does not exceed 20. The word "workers" is used and we think that is very sensible.
In Committee we had some discussion about the great difficulty today in employment law of recognising an employee as against a worker; that is, an employee who is employed under the old term "contract of service" or "contract of employment", stricto sensu, and the worker who is defined in the 1974 Act, a definition that came from the 1971 Act, working under a contract of service or with services other than for a professional client.
We suggest to the Government that there are good reasons for making the cut-off point in this Bill the same in all three respects. Therefore I raise the amendment here, where it seems to us particularly important to make the cut-off point one of "workers", for three reasons. The first is, as my noble friend has suggested, that the women whose rights are being cut down are likely to be weakly organised in unions and not to be in any way cognisant of the law. They simply will know the number of people who are around at the place of work; they certainly will not be able to distinguish, any more than the Court of Appeal can sometimes easily distinguish today in the light of recent case law, the worker from the employee. Only the lawyer can do that, and according to the Court
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of Appeal he often gets it wrong. So first of all it is a common sense reason: if you want people to know the situation you use the wider definition.
Secondly, if there are employers of women who have enterprises where the workers do not exceed five, they will be less able to evade the statutory provisions if the word "worker" is used rather than the word "employee". That is to say, if there is a very bad employer in a small enterprise, once he has passed the point of five employees in the strict sense of the meaning here he will employ his sixth or seventh person under contracts for services, and the case law which we discussed in Committee shows that there is an extraordinary number of people around in British industry who are now working as self-employed people.
That brings me to the final reason: that what is known in the construction industry as "the lump" is not by any means now confined to the construction industry. There is, in a sense, a black economy, to use the Italian term, in many areas of British industry where people are in many respects self-employed, technically speaking, and this is causing a great deal of case law in the courts. It is desirable, in statutes relating to labour law, wherever possible, to put pressure against the development of those practices.
So on the grounds of common sense, of knowing where you are—you can know where you are if you know there are five workers; you cannot know whether the sixth one is an employee, but you can know she is a worker—on the grounds that it would be some obstacle, at least, to evasion by the bad small employer, and on the grounds of policy in labour law generally, I beg to move Amendment 32: that "workers", not "employees", is the right word to use here for the cut-off point.
10.45 p.m.
Lord ROCHESTER: I oppose the amendment, my Lords. We have already demonstrated our sympathy to the Labour Front Bench in what they have had in mind in seeking not to distinguish between women simply on the grounds that some work for larger firms than others. One of the grounds in particular which the noble Lord, Lord Wedderburn of

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Charlton, has put forward in support of the amendment is that he wishes to raise above five the number specified in the clause. But I am very unhappy about the way in which he is setting about it—by seeking to substitute for the word "employee" the word "worker"—because I recall well from my industrial experience that what irritates management (I see the noble Lord, Lord Mottistone, grinning; he may have had the same experience in this connection) is being categorised as something other than workers.
Secondly, the amendment seems to me to go in the opposite direction from that in which, in terms of sound personnel policy, we should be proceeding, towards something more like what is called a single status system of employment. Either we are all workers or we are all employees, but not one or the other, and of the two terms, for the reasons I have given, I very much prefer the word "employees". Had I realised that "workers" appears elsewhere in the Bill I might have had something to say earlier, but in respect of this amendment, that is my feeling and I hope it will be resisted.
Lord MOTTISTONE: My Lords, I am pleased to speak following the noble Lord, Lord Rochester, who kindly mentioned my reaction to his statement while he was speaking. I was looking forward to the debate on this amendment, having missed No. 18, to see exactly what noble Lords opposite meant. The House may remember that in between the two, the noble and learned Lord the Lord Chancellor pointed out the importance of plain English. It would seem to me that plain English about workers is more important than what appears in some Act passed by noble Lords opposite in 1974, and it is a pity if they sought to define "worker" in some technical way which distinguishes it from "employee". I was intrigued—although I found it difficult to follow—by what the noble Lord, Lord Wedderburn of Charlton, was saying about self-employed labour, which somehow implied that self-employed labourers were not workers. What the Government could well do is first to sort out the fact that they have "worker" in Clause 2, which is obviously at loggerheads with what is elsewhere.
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As the noble Lord, Lord Rochester, said, we must be consistent. Secondly, they might seek the opportunity on Third Reading to get rid of whatever definition noble Lords opposite put in their 1974 Act, so as to have it straightforward and accept the fact that all people who work in an enterprise are workers.
Lord MACKAY of CLASHFERN: My Lords, as for the amendment—which is all I propose to deal with—I would certainly suggest that it is unlikely that an employer will change the character of the people working for him once he gets to the number which is important for this clause, and I do not think he would do it for that purpose alone; he might of course have other reasons, and the noble Lord, Lord Wedderburn, referred to those, but we are not dealing with those here. The important point from our point of view is that the clause is dealing with the burden of the employment protection legislation, and it seems highly relevant in that context to use the employee as the person who is important for the purpose of counting numbers. If one were dealing with some other form of protection, the workers might be important.
I also wish to point out that in the way that it is expressed the amendment refers to workers employed by the employer. So, in any event, employment is implied in the formula that the noble Lord is producing. I am therefore not sure that his amendment achieves anything at all, but if it does then it is an undesirable thing. I invite your Lordships not to accept the amendment.
Lord ROCHESTER: My Lords, with the leave of the House, may I ask whether the noble and learned Lord considers that there is anything in the point made by the noble Lord, Lord Mottistone, and myself; namely, that there should at least be some consistency in this matter throughout the Bill?
Lord MACKAY of CLASHFERN: My Lords, I have heard it said that consistency is the hobgoblin of little minds, but whether that would apply in this context I would not say. I think it is fair to say that Clause 2 deals with a situation somewhat different from that with which we are concerned here. Perhaps I might be allowed to leave it at that, at least at this time.
10.52 p.m.
Lord WEDDERBURN of CHARLTON: My Lords, my attempt to move the amendment briefly has proved to be a lesson to me not to do such a thing when one has a legal point to put over and one might be misunderstood. As the noble and learned Lord the Lord Advocate knows, the words "employee" on the one hand, and "worker", on the other, are found throughout the new employment laws. There is no question of a difference in status or of any stigma being attached to the one or the other. Indeed, the distinction was not introduced in the 1974 Act. If it appeared in a general way, it came in first perhaps in the 1971 Industrial Relations Act, although the distinction can be found earlier, with slightly different definitions.
The situation is simply that an employee is someone who falls under the employment protection laws, and is employed under a contract of employment in the old sense, while a worker is defined as a term of art, including the employee, but also one or two other people, such as people who work for services, rather than under contract of service, or who are employed by Government departments.
Therefore, there was no question of status or stigma being involved. The question was the one to which the noble and learned Lord addressed himself: whether, just because the employment protection laws speak in terms of the employee—and rightly so; that is understandable, because one needs the contract of employment on which to operate—the cut-off point should therefore be defined in terms of employees when they have all the other undesirable features.
It is a strictly legal issue, but it involves the policy, and I note that the Government have decided to continue with the traditional method. I suspect that before employment protection law develops much further the cut-off point will be defined by way of workers, even though the rights apply to employees; and here I accept what the noble and learned Lord says. There is not really any discrepancy in cutting off by reference to the one, even though the rights inhere in the other. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 33 and 34 not moved.]
Clause 15 [Action short of dismissal relating to trade union membership and activities]:
Lord McCARTHY Lord McCARTHY moved Amendment No. 35:
Page 16, line 43, at end insert—
("(1A) There shall be added to section 23 of the 1978 Act, the following subsection: —
(8) For the purposes of this section, an act done by an employer in respect of an employee shall not be regarded as an act compelling that employee to be or become a member of a trade union by reason only that it affords to workers who are members of an independent trade union a benefit or advantage which is not afforded to that employee").
The noble Lord said: My Lords, we regard this as a very important issue. Your Lordships will remember that we raised it at the Committee stage. It deals with the scope and meaning, as we see it, of Clause 15(1) where, your Lordships will remember, the Government proposed in effect to delete the words "which is not independent", so that the provisions of Clause 15(1) apply to both independent and non-independent unions. So it becomes actionable for an employee to have action taken against him by his employer to compel him to belong to a union—any union. We have argued that this in fact creates a very wide series of problems for a trade union and for employers outside even the area of the formal union membership agreement, which is the area to which the rest of the clause applies.
Your Lordships will, I hope, remember that at the Committee stage of the Bill we introduced an amendment which was designed to modify this situation and indeed to restore the previous position. But in that debate we were told by the noble and learned Lord the Lord Advocate that such things could be done by the tribunals, and that in any case it was difficult to say, to suggest and to assume that all kinds of things—some of which we had mentioned—which represented mere inducements to membership, would necessarily be regarded by the tribunals as constituting compulsion.
It therefore seemed incumbent upon us, if we wanted to try to have some impact upon the Government at this stage, to seek some basis for making a

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distinction between some of those pressures, inducements, incentives or encouragements, which we sought to argue at the Committee stage were the very stuff of industrial relations, to get people to join trade unions and to encourage people to remain in trade unions, and to leave them outside the ambit of the Bill while trying to go with the Government's desire to in some way protect workers who had had compulsion placed upon them, short of dismissal, to join a trade union. That is indeed what we would say our amendment is trying to do.
In some ways it is a probing amendment. If the Government wish to tell us that they do not like this particular form of words and they will go away and look for other words, we shall be very pleased to withdraw the amendment. But what we would really like them to face is the question that, unless something of this kind is done, then there is a very real possibility that tribunals would have to decide whether or not a whole range of practices represented compulsion. As we said, those practices are the very stuff of which industrial relations are made up—shop stewards ensuring, as they always do, that only trade union collectively designed and recognised procedures are used by non-unionists, so that non-unionists can use only trade union grievance procedures; the allocation of overtime by shop stewards; the allocation of rotas by shop stewards; decisions by shop stewards taken, in effect, in the absence of non-unionists but which nevertheless commit non-unionists as to what piece-work prices shall be; and negotiations among trade unions and employers as to benefits for members only.
We want to have a form of words which have a sporting chance to rule out practices of this kind, realising that such an interpretation might well mean that tribunals would rule in certain other practices, short of dismissal, as constituting compulsion; for instance, some of the examples given by my noble friend Lord Wedderburn when this issue was discussed on Committee. For example, he gave the case of the employer who suspended a non-unionist until he agreed to join a union; or the example of the union which operated a practice of refusing to promote non-unionists. Things
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of this kind, and other forms of threats of sanctions of various sorts, might reasonably, under the terms of this part of the Bill, if this amendment was accepted, be regarded as compulsion.
The answer which the noble and learned Lord the Lord Advocate gave my noble friend Lord Wedderburn at that time of night was that, although it might he possible to distinguish between these cases, he would rather that these things were left to the tribunal. He said—and I quote from col. 593 on 12th June:
"The noble Lord, Lord Wedderburn, gave a number of examples and invited me to comment on them".
Then he went on to comment.
"The cases he gave all fall to be settled by the criterion: does the action in question amount to seeking to compel the person to join the union?"
We accept that. He went on:
"Certainly so far as the first case is concerned I would think that it did not…".
If I remember it, that was the case of refusal to allow access to a trade union procedure.
"I would think very much the same of the second case"—
I think that was the suspension case—
"if the ill-feeling was generated in some way which was independent of compulsion to join the union. The breakaway case",
which was another case mentioned by my noble friend Lord Wedderburn,
"is a little more difficult. I think it would depend on a full account of the circumstances. I doubt whether the noble Lord's example gave sufficient of the circumstances to enable a confident answer to be given".
That is our very point—to enable a confident answer to be given.
We should like to see some direction given to the tribunals on the way that they might interpret this part of the Bill, and we should like to see the way in which that direction was given to make a distinction (as we say in the amendment) between acts which are done by an employer which could be said to be compelling an employee to become a member of a trade union and acts which (as we put in our definition in the last part of the amendment) afford to workers who are members of an independent trade union a benefit or advantage which is not, in effect, afforded to a non-unionist, or, as we would put it, to an employee bringing a case to a tribunal.

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In other words, if the only benefit or incentive is something given to the workers who are members of an independent trade union, some benefit or advantage, and that is the only form which the alleged compulsion takes, we would say it should not be part of the terms of Clause 15(1). 1 beg to move.
Lord MACKAY of CLASHFERN: My Lords, this matter seems to be causing undue difficulty to noble Lords opposite. As my noble and learned friend the Lord Chancellor said earlier, the test is one of plain English: whether the action in question was for the purpose of compelling the person affected to be or to become a member of a trade union. Surely that is a test which is reasonably easy to apply and, as my noble and learned friend the Lord Chancellor said on the last occasion, the judges do not have much difficulty in determining what is the purpose. Surely it is easier to leave it on that general test than to try to test it in relation to particular examples as this amendment seeks to do. The amendment suggests that it should not be such action if the action is by reason only that it affords to workers who are members of an independent trade union a benefit or advantage which is not afforded to that employee. It must depend on the circumstances, the nature of the benefit, the way in which, and the purpose particularly with which, this course of conduct is pursued. If the refusal of these benefits is part of a deliberate strategy to compel nonmembers to join by refusing them improvements in terms and conditions of employment that they would normally expect, then this would fall foul of the clause. I would therefore suggest that this amendment, instead of helping matters, only hinders matters and the simple test (which is, after all a test of previous legislation) is much better, and this amendment should not be given support.
Lord McCARTHY: My Lords, the noble Lord does not help. If he looks at the amendment, he will see that we are saying "by reason only". We are not saying there would be a general policy to force people into unions in the way he suggests. Obviously, if there was an attempt to force people into unions as part of a whole series of motives, the tribunal would say that it was compulsion.
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We say "by reason only", solely, just that—that it affords the workers who are members of an independent union benefits or advantages not afforded to the employee. The hour being so late at night and we being so far into the Bill, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 36 not moved.]
Lord DEN HAM: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.