§ 3.7 p.m.
The MINISTER of STATE, DEPARTMENT of EMPLOYMENT (The Earl of Gowrie)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.— (The Earl of Gowrie.)
§ On Question, Motion agreed to. House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clause 1 [Payments in respect of secret ballots]:
Lord MCCARTHY moved Amendment No. 1:
Page 1, line 9, after ("unions") insert ("within the provisions of their rules").
The noble Lord said: In rising to move the first of the 100 or so amendments in the names of my noble friend Lord Wedderburn of Charlton and myself, it struck me that it might be a good idea if we were to seek to classify these in some way. In this respect this particular amendment falls into classification ' C'. Some of our amendments seek modifications in the Bill, particularly modifications of the consequences of the Bill as we see it. Some of our amendments seek clarification in areas where we believe that the Bill is confused in its wording and where we wish to know what the Bill means. Some of our amendments— and this is one of them— seek to make clear and to specify what the Government say is already the case. I suppose that the argument for that is to reassure those who might otherwise feel that that is not the case. Therefore, this amendment seeks to insert in line 9 the words;
within the provisions of their rules".
In another place the spokesman for the Government said that amendment
along similar lines to this was unnecessary because, of course, the Bill already intends that these trade union ballots should be conducted within the provisions of the rules. Of course, there are indications to this effect in the body of the Bill itself. In Clause 1 (1) it says quite clearly:
providing for payments by the Certification Officer towards expenditure incurred by independent trade unions in respect of such ballots …".
§ One might say that by "independent trade unions"— if they are to have access to this part of the Bill— one must mean those individuals, groups, committees or executives as specified in the rules who have the authority to stand, as it were, as an independent trade union and to speak with the authority of an independent trade union.
§ If we look at other provisions in the clause we see that many of the purposes referred to— for example, in subsection (3) — clearly derive from the rules of trade unions. We have the carrying out of elections referred to in subsection (3) (b) as provided for by the rules of a trade union; amending trade union rules; obtaining a decision in accordance with the Trade Union (Amalgamations, etc.) Act 1964, on a resolution to approve an instrument of amalgamation or transfer. All trade unions, so far as I am aware, specify quite clearly in their rules how they would go about facilitating an amalgamation. One might therefore say that in all these respects— indeed, this was said in another place— it is clear by implication in the Bill that the Government do not intend funds to be made available outside the provision of trade union rules.
Nevertheless, I suggest that there are certain aspects of the clause which give cause for concern. First of all, it is clear what is said at the end of subsection (3) (e):
and such other purposes as the Secretary of State may by order specify".
I shall be told that Bills of this kind usually have catch-all clauses of that kind, but
and such other purposes as the Secretary of State may by order specify ",
raises the possibility that the Secretary of State may by order specify that certain ballots should be held in relation to trade unions or that certain funds should be given to those who wish to hold ballots concerned with trade unions that are not specified in the rules, in particular in ways
that are not specified in terms of those authorised to run ballots under the rules. When we turn to the Notes on Clauses which the Government have been good enough to provide, we find that, when the Government are talking about what they might do about shop stewards' ballots, they actually envisage a situation in which something might be done outside the rules, because they say:
As worded, the sub-clause permits elections to all posts or bodies for which the rules of the union provide and for the election of shop stewards, whether this is required by the rules of the union or not".
§ That is quite true; many unions do not prescribe in their rules for the election of shop stewards. Some do and some do not. Some provide for the election of shop stewards in a very general way. In others the practice is that, whatever the rules may say, the way in which shop stewards are elected is provided for in the shop stewards' handbook. Thus, the question arises: are we to be told that the Secretary of State may by regulation provide expenditure not necessarily prescribed by the rules but prescribed by the shop stewards' handbook?
§ To us, this is not a technical amendment, nor is it a small matter. I suggest that it has to be taken in the context of other aspects of this debate. Some of those aspects we shall be discussing when we come to the Question, That the clause stand part. The general context in which this trade union ballot provision is put forward is that of a Bill which the overwhelming majority of trade unions and their executives and officials believe is an anti-trade union Bill, so that provisions which might be acceptable or which might be looked at in a rather relaxed way are bound to be regarded suspiciously when they come as a trailer at the beginning of a Bill of this kind.
§ Noble Lords will know from reading the Marshalled List that we have subsequently today amendments which are intending to take these provisions much further and which represent a very real stream of thought in the party opposite. People want to make compulsory ballots and people want to make them when they are quite outside the rules of a union, where dissident groups can demand public funds to run counter-ballots, even in circumstances in which there have already been ballots which have gone in a particular 1266 direction. I stress that the Government seem to be saying— they said it in another place, and I apologise if I have got this wrong— in effect, "What we are proposing is unnecessary. It is merely declaratory because it is there already, and nothing in the Bill would ever make the Secretary of State make regulations outside the rules of a union, with the people in the union authorised to hold ballots giving access to this part of the Bill ". If that is the case, there is no reason to resist this amendment.
§ In another place when dealing with other parts of the Bill the Government said, quite reasonably from their point of view, that they wanted to put things in which were there already. We shall be coming to those matters— for example, the question of the onus of truth, on which they said, "The tribunals do it already, but, to make it clear and for psychological reasons, for small businessmen and so on, we want to reassure these people ". We are saying that a very good start to this debate would be for the Government to accept this amendment and reassure the unions. I beg to move.
§ Lord SHINWELL
My noble friend Lord McCarthy has dealt with this matter with exceptional clarity and ability, and of course we are aware of his vast knowledge of the subject, so I hope it will not be regarded as an impertinence if I intervene. I do so because it seems to me that this part of the Bill is much more important than its wording indicates. It will be, if passed, an intervention in the affairs of the trade unions of this country in a fashion which is reminiscent of what some of us had to endure in the years before the First World War, when the courts were fully occupied in determining whether the status of the trade unions of the time was legal; but that is a subject so wide that I do not propose to develop it, at any rate not at this stage.
It will be noted that the Government propose here that they should determine regulations, and at first sight that seems quite a simple affair, except that regulations are to be determined by the Government on a variety of matters concerning the trade union movement; for example, how they should amend their rules if they desire to amend them and who should represent them in negotiations— matters which are contained in the latter part of 1267 the clause. Although there is provision here, which I recognise, that no definitive action could be taken without a resolution having been passed by either House of Parliament— which of course would enable those concerned to take part in debates on the subject— there is no indication that before regulations are devised the persons concerned will be consulted. What is to be the content of the regulations? That is a matter of extreme importance. I believe that we must be assured about this point before we allow the clause to pass not only without comments but even without opposition, though that is a matter for my noble friends on the Front Bench.
I ask the noble Earl not to content himself merely with the first part of the amendment, but to recognise that we are here dealing with a scheme— and it is no simple scheme— concerned with one small part of the operation of the trade union movement. It covers the entire ramifications, and I believe that in those circumstances we are entitled to complete clarification about the regulations. We want to know what is intended and, in particular, whether those who will be primarily concerned— namely, the trade unions— will be consulted. If the matter is to be left merely to either House of Parliament, then, bearing in mind the possibility, not, I hope, probability, that both Houses of Parliament will consist of a majority of Members who are not very happy about the trade union movement— I put it very mildly; some of them are very much opposed to it— I believe that the trade unions must have in advance some indication that they will not be prejudiced by regulations upon which there is no consultation.
§ Lord ROCHESTER
With due respect to the noble Lord, Lord Shinwell, I hope that on this and other amendments we can confine ourselves to the substance of the amendments with which we are dealing, rather than speak on more general matters which, the Committee may agree, are better dealt with when we consider the question whether a particular clause shall stand part.
With regard to this particular amendment, personally I can see no objection to it. I understand that it is laid down in Clause I that the Secretary of State may by regulations provide for payments 1268 towards expenditure incurred by trade unions holding secret ballots for certain purposes. Subsection (5), as I understand it, deals with the safeguards which the regulations will prescribe before payment is made. In that subsection there is no mention of union rules as such, but, since ballots will be initiated by trade unions, one factor which the certification officer will presumably have in mind is that they should not take place in contravention of union rules and that any union rules relating to ballots are complied with.
The purpose of the amendment as I see it is to require the certification officer to satisfy himself that these particular safeguards are met before payment is made, so that what is now permissive becomes mandatory, and on the face of it that seems to me to be reasonable enough. Furthermore, I suppose that if a union has no rules at all concerning ballots, it will still be eligible for payment should the amendment be accepted, but I should welcome clarification on that point.
§ Lord BOYD-CARPENTER
May I ask the noble Lord on the Bench opposite whether he will clarify a little what he intends to be the effect of the amendment? Let us take the case touched upon by the noble Lord who has just resumed his seat, of a union that has no rules in respect of ballots. The question I wish to ask the noble Lord opposite is whether it is his intention, and the intended effect of the amendment, that in the case of such a union the clause simply would not operate, but would be excluded.
I should like to follow that up with a kind of supplementary question. If the noble Lord's answer to my question is yes, would it not mean that any union which very much disliked this particular proposed amendment of the law in the clause itself would simply have to amend its rules so as to leave out any specific reference to ballots in order to exclude the operation of the clause? I should like to know whether in the view of the noble Lord that would be the effect of his amendment, and whether that is his intention.
§ Lord NUGENT of GUILDFORD
I should like to say a few words on the amendment, and in particular may I correct an impression which the noble 1269 Lord, Lord Shinwell, left on my mind and perhaps on the minds of some other Members of the Committee?— namely, that the clause is hostile to trade unions. I do not think that it is at all hostile. I cannot help thinking that secret ballots, which are of course used by some unions, can but be helpful to the life of unions, and if Government are prepared to provide finance for the holding of these secret ballots, that seems to me entirely beneficial to the life of the unions and the life of the country. The way that the clause is drafted seems to me to be right. I do not know what answer my noble friend is to give to the amendment, but the clause as I see it is drafted in terms of leaving the initiative regarding the holding of secret ballots in the hands of the unions, and this is very much to my taste. I think that it is the right way to do it.
I know that I differ from some noble friends of mine sitting on the Benches here with me. They would like to introduce a rather stronger note, which appears in a later amendment: that a number of trade unions who got together could insist on a secret ballot being held. Personally, I think that would be a mistake. I consider that the right way to proceed with this matter— and which would be a measure entirely beneficial to trade unions generally and to the life of trade unions— is to leave the initiative with the trade unions, to make it possible for my noble friend and his colleagues in Government to provide the money by means of a set of regulations that they must make; and that is all that the regulations will apply to. This would seem to me to be helpful in every way.
§ Lord DAVIES of LEEK
The matter is not quite as easy as that. There is a definite purpose here in that we are asking that this action should be taken within the rules of the union, because we have here a logical clause which barristers, judges and lawyers can play with. On the next page of the Bill there is a reference to regulations which may be made forsuch other purposes as the Secretary of State may by order specify ".In the name of heaven! This is all indicative of the rapidity with which this vital legislation has been drawn up. There is this loose, semantic phrase about other regulations. Who is to make the decision?
1270 The noble Earl, Lord Gowrie, is a very capable Minister and I pay tribute to his ability. I do not make my point in any derogatory fashion because I know that the noble Earl takes trouble and that he has ability, but later I should like him to tell me whether I am incorrect in my analysis of this situation. My noble friends wish to insert the phrasewithin the provisions of their rulesand so I think that for a moment we should have a little historical survey, though without wandering into a general debate on the question of whether the clause should stand part— to refer to the point made by the noble Lord who spoke a few moments ago. All this emanates from the 1971 Heath regulations which were changed in 1974 when your Lordships' House carried five amendments in a vicious campaign against the Act, introducing criminal law into trade union activities. Such a possibility exists within the phrase that we are now considering. I do not want to debate minutiae with regard to where criminal law is being applied, but we are here placing a derogatory effect on trade unionism. To be fair to the trade union movement, may I point out that although everybody goes blue in the face about strikes, only about a tenth of 1 per cent. of industrial production has been lost through industrial strikes in Britain, and that compares favourably with production lost due to colds, pneumonia, and other sickness. So let us get the effects of strikes into balance if we talk about striking as though it were the biggest evil in this country.
The General Council when looking at the Donovan Report welcomed its considerate view and rejection of suggestions that criminal law should be brought into the field of industrial relations— and that was accepted. So the Donovan Report was dead against the kind of broad meaning as contained in the clause. Consequently, I wholeheartedly support the amendment of my noble friends.
§ Lord HOUGHTON of SOWERBY
I would not myself have thought that this amendment was really necessary. I cannot imagine any trade union holding a ballot which was not provided for under the rules or under the law. This clause does not require trade unions to hold ballots: it is permissive, as is the case now. All that this subsection does is to 1271 provide money for financing ballots if unions decide to hold them for purposes specified in the clause. If your Lordships look, on page 2, at subsection (3), you will see that paragraphs (a) (b) (c) and (d) are non-statutory ballots; but paragraph (e) is a statutory ballot, and this amendment does not provide for that. Nor, of course, does the subsection provide for a ballot to be taken under the Trade Union Act 1913 for the introduction of political objects into the objects of the union. That, presumably, has been purposely left out. So although a ballot for amalgamation purposes will be paid for and that ballot is required by the 1964 Act whether or not it is in the rules, the other paragraphs, paragraphs (a), (b), (c) and (d), are optional matters upon which, if it is provided for in the rules, the union may hold a ballot.
In my experience— and I have had a good deal— if an executive committee, for example, takes a ballot of the members which is not provided for in the rules, it runs a serious risk of being repudiated by the annual delegate conference. I had practical experience of this when my own organisation took fright at the disruption and dissention inside the organisation at the time of the General Strike of 1926. We were affiliated to the Trades Union Congress, and the executive committee held a ballot of members to decide whether or not we should stay in. The result happened to be unfavourable to remaining in the TUC, but it was promptly repudiated by the annual delegate conference which followed a few weeks afterwards. They said that there was nothing in the rules to allow the executive committee to take a ballot on this subject without the authority of the annual delegate conference.
So I come back to my first point. If the rules do not provide for a ballot, a ballot cannot be held. That seems to me to be the law of the matter, and certainly the rule of the matter; and, therefore, the amendment is probably not absolutely necessary. I see no objection to it. I think it is obvious that ballots will have to be taken within the rules if they are to be validated at all within the constitution of the union concerned. But what I would point out is that subsection (3) (e) provides for payment to be made for a ballot which is held under statute law, which is the Trade Union (Amalgamations, etc.) Act 1272 1964. It seems to me, therefore, that this amendment may be defective in not also providing for ballots taken under the law as well as for those taken under the rules. This is probably too fine a point to worry about; but I would have thought that either the amendment does not matter because it is unnecessary or it can go in if it comforts anybody to see it there.
The Earl of GOWRIE
The Statement having been cleared in another place, I beg to move that the House be resumed to hear the Statement.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.