HL Deb 07 July 1980 vol 411 cc853-68

2.54 p.m.

Report received.

Clause 4 [Unreasonable exclusion or expulsion from trade union]:

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 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 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 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.


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?


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.


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 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.


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 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.


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 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.


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.


My Lords, one of the problems about being 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.


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?


My Lords, the Lord Chancellor's speech is very much more authoritative than anything I could say about it.


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 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 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.


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 hope that it may evoke some positive response on this occasion from the Government.


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 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.


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 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 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 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- 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 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.