EMPLOYMENT BILL

HL Deb 07 July 1980 vol 411 cc884-944

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 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 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 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 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 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 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 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 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 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. 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— 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 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.

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 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 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 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.)

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 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 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 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 moved Amendment No. 8: 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 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 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 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 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 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 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 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 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 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 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 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 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 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!

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 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 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 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 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 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 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 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, 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 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 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 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 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 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 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 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: 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 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 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 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 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.