§ 3.50 p.m.
§ House again in Committee on Amendment No. 1.
§ Lord LYELL
We have had a free-ranging debate and the Committee are grateful to the noble Lord, Lord McCarthy, for spelling out the terms of his amendment so very clearly and at some length. I think the clearest and simplest reply that the Government can make about the amendment— and we believe the best answer that can be given— has already been given very, very clearly by the noble Lord, Lord Houghton of Sowerby. As the Government see the amendment, it has been drafted in such a way that its effect is still somewhat uncertain and that particularity is in itself a major reason for caution.
The Government feel that the intention of the amendment would be to narrow— I think the noble Lord, Lord McCarthy, called it "clarify"— the possible impact of the scheme to be made under Clause 1 of the Bill. As the Committee will be aware, the main purpose of the clause and the scheme is to encourage the wider use of secret ballots where unions are entitled and wish to act in a way which is not contrary to their rules to conduct secret ballots. Many unions do not make any specific provision in their special rules for strike ballots but may under general executive powers conduct them. It is perfectly right and proper that where general powers extend this far, and they conceive it in the interests of their members to do so, they should conduct secret ballots. For myself, I wish they would do so more often before embarking on industrial action which can be damaging.
If the intended effect of the amendment is that ballots which are not contrary to rule but which are not specifically provided for by rule should not qualify for inclusion in the Clause 1 scheme, that would be most undesirable in the Government's view. Many unions would, unless they amended their rules, be prohibited from applying for reimbursement of the costs of carrying out ballots that they wished to conduct or had conducted. The prime object of the Clause 1 scheme is not to prompt unions to change their rules, but 1279 is far more permissive: it is to encourage them to hold more secret ballots should they wish, and the amendment would detract from this primary aim.
I would give a specific assurance to the noble Lord, Lord McCarthy, that the Secretary of State would not add to the purposes which the noble Lord, Lord McCarthy, pointed out in Clause 1 (3) in such a way that any unions would be able to obtain reimbursement under the scheme for actions that would be contrary to their own union rules. The Secretary of State certainly would not have that in mind. Nothing that the noble Lord, Lord McCarthy, has said, or that has been said very eloquently by the noble Lords, Lord Shinwell and Lord Davies of Leek, has convinced any of us that there is real justification for what we call "fettering"union executives in this way. On this side of the Committee, we expect union executives to behave responsibly. Certainly I have no doubt that this expectation is shared by the noble Lord, Lord McCarthy, and indeed by the whole Committee. Therefore I ask the Committee not to accept this particular amendment.
§ Lord MCCARTHY
I must thank the noble Lord for the additional assurances that he has given in replying to this amendment. If I may say clearly again what it is that we are concerned about, it is, in the light of other amendments and of other statements and in the general context of the Bill, the possiblity that this clause might be used in order to have ballots outside the provisions of union rules and, in particular, outside the provisions of those authorised under the rules of the union to conduct such ballots. That is really what we are talking about.
The answer to the noble Lord, Lord Boyd-Carpenter, if I may say so, is "Yes ". If there are no rules in the union regarding ballots then we would say that the Secretary of State may not make regulations because there are no rules about ballots in the union. The trouble with Members of the Committee opposite—
§ Lord BOYD-CARPENTER
Will the noble Lord allow me to intervene? Can he amplify that a little? Does that mean that, where a ballot is not contrary to union rules but the subject is simply not 1280 dealt with by the rules, the adoption of his amendment would exclude the operation of the clause?
§ Lord MCCARTHY
I am afraid that the noble Lord does not understand much about union government. For a ballot to be held in a union, whether it specifies in terms that ballots can be held, there must be some body in the union— normally the executive council or it could be the annual conference of the union— which has under the general provisions of the rules the kind of authority which enables ballots to be held.
It may not be prescribed in terms how that ballot will be conducted, but if there is in the rule book reference to someone who is entitled, for example, to consult members or to have ballots, to ask branches or to have any one of a whole range of systems of consultation and participation in the union, my reading of this clause is that it would be permissible for the Secretary of State to make regulations. What is important— and I think that the noble Lord, Lord Lyell, is agreeing with me on this, but we may raise this again on Report when we have read carefully what he has said— is that the persons involved in the union with general responsibility for deciding things of this kind should be the people who are allowed to go to the Secretary of State and ask for regulations, and ask for assistance. If this is the case then I am satisfied with this particular aspect of the Bill.
What we are trying to oppose, both in this amendment and subsequently, is the notion that dissident groups, groups with no authority in the rule book, groups with no right whatever under the general provisions of the rules to consult the members, should be allowed to come to the state and ask the Secretary of State to help them to disrupt union government. With that general understanding, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 3.58 p.m.
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ Lord MCCARTHY
I want to oppose the Motion that Clause 1 shall stand part of the Bill, on three grounds. This is the occasion on which we want to develop 1281 our arguments against the general notion of the Secretary of State's involvement in trade union ballots.
First of all, we must take notice of the fact that these proposals for trade union ballots are in this Bill. Once upon a time, a very long time ago, the late Labour Government was about to introduce in the ill-fated In Place of Strife a trade union development agency. It was perfectly possible that as a part of the functions of the trade union development agency there might have been assistance given to trade union ballots or to other aspects of trade union activities. The late Labour Government have given assistance to trade unions, for example, in relation to their education activities. I understand— and I am very pleased to see this— that the present Government, at this moment at least, have no proposals to curtail these provisions in any way.
We are not saying that the state should not help trade unions. We are not saying that under no circumstances, in no conceivable way, should there be support for the trade union movement in its everyday activities under the provisions of its rules. But we have to say that to put this as a need, as a kind of loss-leader at the beginning of a Bill of this kind, is bound to make the trade union movement pause and think and ask themselves what is behind such a provision. It is particularly likely to do this if we know that in another place and indeed in the House of Lords subsequently we shall have other amendments which seek to take the Government far beyond this point and introduce compulsory ballots at the behest of dissident groups in the union.
Therefore, our first objection is that it is in fact in a Bill of this kind; but— more importantly, I think— the wording is ambiguous. If we look at the wording of this clause, we have already spelt out the fact that we are not fully satisfied with the control of the authorities in the unions over the monies which are to be injected as a result of this provision. I will set that one aside; but we are also not satisfied at the reference to,… and such other purposes as the Secretary of State may by order specify ".That seems to me to be a rather dubious and doubtful phrase to be inserted in a trade union ballot provision, where it would be quite simple for the Secretary of 1282 State to begin with a number of specific desires and areas where he wanted to introduce controls and assistance of this kind, without finishing up with such a general provision as this. We do not like Section 1 (5) which refers to circumstances and conditions "as may be prescribed "for the scheme. We feel that here is an indication that the Secretary of State is trying to find some universal way of conducting ballots. The fact is that unions differ in very wide ways as to how they make use of ballots, and the introduction of a general provision of this kind, we think, is not reassuring.
We are also concerned about the provisions in subsection (5) which says,… the ballot is so conducted as to secure, so far as reasonably practicable, that those voting may do so in secret".I emphasise this is not because we are in favour of"unsecret "ballots, but the fact is that when you look at what the Government have already issued on the proposed provisions for the scheme and when you look at the explanatory notes of the intentions of this clause, it is quite clear that as a result of this clause we are going to drag the certification officer, as the previous Conservative Government dragged the registration provisions and the registrar, into a highly contentious area in which he will be required to say whether or not ballots are being conducted secretly or according to the rules. Indeed, it says in one section of the proposed provisions that he can in fact say that, even if the rules of the union have not been fully observed, he is of the opinion that failure to comply with the requirements referred to therein has had no significant effect on the proper conduct of the ballot.
Frankly, I feel that a clause of this kind is an invitation to drag trade union democratic processes into an endless series of legal wrangles, and it is based upon a doctrine which I am afraid noble Lords on the other side on the whole tend to hold; that what one needs in trade union government is ballots— ballots, ballots, more and more ballots— all the time ballots. That is based upon their mistaken belief that if you have ballots you get moderates coming to victory. All the evidence of the Donovan Commission, the American experience and the experience of this Government in their own ballot provisions, indicates that this is at best a crude and even a bizarre view.
1283 The fact is that ballots are a very crude way of consulting trade union members. No trade union leader worth his salt would use a ballot if he could use something else. If you can get people involved— the noble Lord may laugh, but that is because he knows nothing about it— in any issue, as we are in this Chamber, in a room and you can argue with them and they can answer back, they can propose amendments and suggest alternatives so that the debate can continue until some kind of collective will arises, no democrat would prefer the crude alternative of a ballot. One uses a ballot when it is a relatively simple issue, something on which you can answer "Yes"or "No", and when the question to be put cannot be manipulated and determined by the precise form of words (as it very often can be) and when it is important to get and to register a final answer. Many trade union leaders have been caught up in the consequences of ballots. I could quote names— but I will not— of unions that have been crucified by too great an addiction to ballots, whose executives have decided over the years that the only way they can exercise control, regulation and effectiveness over their organisation was to find other and more sophisticated ways of consulting the membership. The crude notion that all we need is ballots, ballots and ballots comes from those who know nothing whatever about the trade union movement.
Finally, it must also be said— because this is the occasion in this Bill when we can say it— that there is something bizarre and indeed, if I may be allowed to say so, there is something rather cheeky in people trying to insist on improving the provisions of trade union democracy in 1980. God knows! I know more about the bends and shifts of trade union democracy than most people, and I say to your Lordships that the processes of trade union democracy are infinitely superior to the processes by which firms consult their shareholders or directors consult their employees or political parties, including my own, collect the opinion of the mass of their membership and, if we are allowed to say so, the way in which chairmen and leaders of political parties emerge— strange weird ways indeed. Trade union democracy, for all its weaknesses and imperfections, is the most systematic and consistent way of consulting more people than any other 1284 institution we have in this country. Therefore, it does not need a clause of this kind or provisions of this sort, and we ask your Lordships to oppose them.
I think it is a very nice irony for the noble Lord, Lord McCarthy, on more than one occasion when referring to the vocal minority in a union— no doubt reflecting the views of the non-vocal majority— should use a term which is so often used by his colleagues in the Soviet Union; namely, "the vocal dissidents ". I think this is the key to the whole attitude of the noble Lord opposite, in that what the executives of unions really do fear is the voice of the rank and file.
§ Viscount CALDECOTE
The noble Lord, Lord McCarthy, is really rather unduly suspicious and seems to me to be making the issue unduly complex. This is a very simple issue. The fact is, as all of us know who have anything to do with trade unions and industrial relations in industry, that sometimes— sometimes— ballots, and particularly secret ballots, are very valuable. It is also perfectly well known, and the noble Lord knows it as well as any of us, that in the past when the trade unions have been pressed to have ballots, and particularly secret ballots, they have said, "We are very sorry; we should like to hold ballots but we cannot afford it". This clause gets over that difficulty. It is a very simple point. It enables trade unions, when they wish, to have the cost of their ballots, and particularly secret ballots, paid for. It is therefore a good clause and should stand Part of the Bill.
§ Lord LEE of NEWTON
I thought my noble friend Lord McCarthy was right in many of the points he was making about the reasons for ballots. One of the things he did not mention was the enthusiasm of the convert. The Tory Party never had ballots until a few years ago and they now want to feel that they are going to pioneer the idea of ballots, to the degradation of those backward proletarian institutions such as the trade union movement.
I thought the noble Lord, Lord Boyd-Carpenter, made a point one wanted to follow up. I want to see every trade union having secret ballots whenever they can. Indeed, the vast majority of the 1285 big trade unions do have secret ballots on almost every issue. My own union, the engineers, ballots for everything and everybody at enormous cost. I am not at all averse to Governments assisting financially in that process. Indeed, it struck me, when the noble Lord was asking his question of my noble friend, that it could be the case that if those unions which do not have ballots within their rule book wish to qualify for financial assistance, this may assist in getting them to change their rule book in order that they can have secret ballots. In that sense, I welcome it. It would be a good thing if we could do that. On the other hand, we must look at the problems which arise with some trade unions, as against others, in trying to take secret ballots.
I was in charge of about 30, 000 people in one big place and I could hold ballots on anything, at any time, relatively easily. But I ask your Lordships to think of the Merchant Navy. How does the seamen's union hold secret ballots when, at any one time, a huge percentage of their members is scattered throughout the world? It just is not possible, with all the goodwill in the world, for them to do it. Noble Lords opposite were talking about being afraid of the rank and file decision, but it is not true. There is no organisation in Britain which takes more notice of rank and file decisions than the trade union movement. It seems to me that it creates the wrong atmosphere when we are told that kind of nonsense.
There is one issue, again within Clause 1, that I should like the noble Earl to tell me about. The Government talk in terms of expenditure incurred by independent trade unions. What do they mean by "independent trade unions "? If they are saying that they do not count company unions as independent, then I am happy about that. But I can recall, some years ago, when a number of breakaway unions, whose members had been dilutees of the engineering industry, christened themselves "independent trade unions". Independent of what? Independent of whom? The answer is that they were independent of the TUC. I am not trying to bring any Machiavellian intent into this, but I should like the noble Earl to tell me why it is necessary to have the word "independent"in Clause 1. Would not the point be covered just as well without the word 1286 "independent"? Or are the Government trying to make sure that company unions do not qualify for this kind of assistance?
§ 4.12 p.m.
§ Lord BOYD-CARPENTER
I found the speech of the noble Lord who has just sat down much more reassuring, in his attitude towards ballots, than that of the noble Lord, Lord McCarthy. I do not know whether the noble Lord, Lord McCarthy, purports to be speaking for the trade union movement. I think he does, because on several occasions he observed that he knew much more about trade unions than anybody else. No doubt, therefore, he claims to be speaking with some authority. But if he is, he might like to know what effect his speech had on, at any rate, one Member of this Committee.
Throughout his speech there was an ill-concealed, a hardly concealed, antipathy to the holding of ballots by unions on matters of major importance. Certainly, the effect of that on my mind, I must tell the noble Lord, was to incline me much more than I was before he spoke to the view of those of my honourable friends who think that legislation might go further than the present Bill in making provision for ballots. If the noble Lord really speaks for the unions, and if that is really their attitude, that could have a very considerable effect on the judgment of many of us. I think that the noble Lord should know that.
§ Lord HOUGHTON of SOWERBY
I shall not oppose this clause standing part of the Bill. I think that it has had the blessing of too many people in too many parties for us in your Lordships' House to discard it, after it has been included in the Bill by the House of Commons. This idea of ballots attracts a great many people, mostly those outside the trade union movement and not in it. But this clause is dealing only with public money being spent on trade union ballots, which are held permissively under the rules of the unions concerned, or obligatorily under the rules of the unions concerned, or by Act of Parliament on matters which fall within the itemised purposes of ballots on page 2. That is all this clause is about— whether we shall spend public money in this way.
1287 I do not think it is necessary to do that. Most unions which have provision for ballots are themselves able to pay for them. This, presumably, is to encourage unions to hold ballots which otherwise would be too expensive for them to undertake with their own money. So I do not think it is of great importance, though it is a substantive clause of the Bill and it was part of the outline of the legislation which the present Government announced they would introduce into Parliament. So from that point of view, I do not think that we need make heavy weather on trying to delete the clause from the Bill.
I would make just one or two comments on this question of ballots, because it is important, especially in view of what may follow. The law provides for ballots to be held in unions for only two purposes. One is for the introduction of political objects into the objects of the union, and that is provided for in the Trade Union Act 1913. The other is that where amalgamations or mergers are in contemplation, it is necessary to hold a ballot to authorise the necessary legal transfers that will consummate the amalgamations or mergers. Why is it that those two matters are required by law to go to ballot in a union? It is because both of them can be acutely contentious and may divide the union and may not be soluble by an executive committee.
Why did we have a referendum on the Common Market? It was because Parliament was thought to be not strong enough, or representative enough, to decide for itself. Why was there recently a referendum in Quebec? It was because the Government in Quebec, although it had less than 50 per cent. of the votes cast at the last election, held a majority of the seats but was still not regarded as sufficiently strong or representative to carry through what was put to the referendum and was defeated.
Those are occasions when it is necessary to hold ballots. None of the purposes in this clause fall into that category. You do not have to have ballots to elect an executive committee. You do not have to have ballots for an amendment of the rules, unless a union has decided in its rules to hold ballots; and most unions do not hold ballots for those two purposes. They have other safeguards, 1288 such as a two-thirds majority, for example, at an annual general meeting or an annual delegate conference being required to pass constitutional amendments.
Ballots are called for by people outside the unions. At the present time, there is no great pressure inside the trade union movement to hold ballots on matters on which ballots are not already held. What, then, is the purpose of those who want ballots? I think that they want them as a measure of restraint. They advocate ballots, not because they are really in favour of more democracy, but because what they want to do is to put the skids under a militant executive committee. It is believed that a ballot will enable the silent majority to express its view, which otherwise would not be heard inside the union.
I think that there is a lot of nonsense talked about the silent majority. Why is it silent? I do not think that one should provide forms of mandatory democracy merely to excuse or to condone the laziness of the silent majority. Why are they not at meetings? The vocal minority are always at the meetings, and that is why unions get run by Leftists when, very frequently, the majority of the members of a union are Rightists. It is not because the Leftists have a majority; it is because they exercise their democratic rights, where the silent majority is the lazy majority as well. I think that one can talk about ballots unrealistically; they are not the answer to all problems. There is little point to be served by the provisions of this clause.
As I said at the beginning, the question is whether the clause is to stand part of the Bill. Since so many people want it— they are mesmerised by the good that it will bring— ali right. If this is how the public think that they ought to spend their money to help the trade union movement, who am I to say that they should not? I say, though, that this has introduced a new measure of authoritarianism inside the TUC, because the TUC is saying, "No union affiliated to the TUC is to avail itself of the provisions of this section ". So a new factor is introduced into the trade union movement which need not be there and which should not be there, merely because we are proposing that there should be this state bounty for the 1289 conduct of ballots by trade unions under prescribed circumstances. It would have been much better to leave it alone.
The trouble, however, is that ballots have been bandied about and public expenditure to finance them has been proposed by so many people on so many occasions that we have come to think that it is a form of worship and that we must do something about it. It is not a form of worship. It is just a silly idea that somebody thought of; it has been the subject of propaganda over the years and people have come to believe in it. But it is here. The House of Commons has put it here. It is a substantive clause of the Bill, and I do not think that it is the role of your Lordships' House to take it out of the Bill. That is all I have to say about it and I shall abstain if there is a vote on the matter.
Earl DE LA WARR
I entirely agree with my noble friend Lord Boyd-Carpenter in the way that he interpreted what the noble Lord, Lord McCarthy, said about ballots and the way he dealt with them. Clearly he thoroughly dislikes them. I found it quite amazing and horrifying to hear the pious way in which the noble Lord dealt with the question of trade union democracy. He even went so far as to compare the operation of trade union democracy with the operation of your Lordships' House.
The noble Lord knows as well as I do that one of the things that got him and his party into trouble at the beginning of last year was that the British public as a whole have seen too much "trade union democracy "at work. To them it means— and in many cases they are right— a mass meeting where a fellow is not too well advised on occasions to hold up his hand lest he be called a "scab "and treated accordingly. Does the noble Lord, in these generally pious things he said, really want to talk about trade union democracy just in those broad terms, and not admit that there are many cases in which it is wise to have a ballot instead of the horrifying mass meeting tactics to which this country is so often subjected?
§ 4.23 p.m.
§ Lord WEDDERBURN of CHARLTON
If I may intervene very briefly in your Lordships' debate on this clause, 1290 may I preface what I am about to ask the noble Earl with the comment that I have great sympathy with what was said by the noble Lord, Lord Houghton of Sowerby: that the current worship of ballots will surely in a few years be seen to be a passing phase, just as was the worship in 1970–71 of the marvellous results that would occur if only we had a presumption of binding collective agreements. Of course there is a situation where you have a ballot, and there are many trade unions that adopt the use of ballots. As noble Lords opposite are well aware, our trade unions are various and frequently complex. Many of us on this side also wonder at the multi-unionism that we have. And they have various practices.
The idea that one should go down the road of forcing everyone to have a ballot, which is beginning to be the implication, is as silly as the old idea of binding collective agreements. That there are malpractices inside trade unions from time to time I have no doubt, just as there are in the City, and just as there are in other organisations. So far as the TUC is concerned, which was the question to which the noble Lord, Lord Houghton of Sowerby, addressed himself, a family quarrel inside the trade union world as to whether or not to take this rather unusual sudden burst of public expenditure, increased by the Government, is a matter for the trade unions themselves. However, there are problems about this clause. It seems to me that my noble friend Lord McCarthy highlighted many of them which require further answer, and I should like to put to the noble Earl just a few more.
The clause itself, we have had explained to us, will normally operate— and we hope that it will— within the rules of the unions. But the person who has a very important role to play— and I am sure that noble Lords who want to take it further have got this point in mind— is the certification officer. He has a number of roles which are not explained in the clause itself. However, they are filled out a little in the document to which my noble friend Lord McCarthy referred; namely, the very preliminary suggested draft of the scheme which has been around now for a few weeks.
In paragraph 8 of the first draft of the plan, the certification officer is to be satisfied that certain conditions have been 1291 met. Among those conditions it is said that in a ballot containing a question to ascertain the views of members about calling or ending a strike—I am glad to see that a balance is kept between calling and ending a strike and this is another reason why this is perhaps not a wise way to proceed, thinking that ballots can solve everything, because once you have a strike called by ballot, it is very difficult, as a rule, to get it called off by ballot— the certification officer has to go on and see that so far as is reasonably practicable the ballot is conducted so as to ensure that all members likely to be instructed or advised to participate in the strike, or participating in the strike or other industrial action, as the case may be, are entitled to vote (I am sure that we shall have some regulation of that sort) and that they can vote without interference or constraint. The certification officer has to be satisfied about that before he pays over the money. We have a number of precedents for this.
But officers having statutory duties of that kind will fairly quickly find themselves challenged, especially with a difficult matter of judgment of that sort, about the vires of their decisions. They will find that they are in the High Court for judicial review. We have seen it with the Advisory Conciliation and Arbitration Service in respect of its recommendations for recognition under Sections 11 to 16 of the Employment Protection Act 1975. We have even seen it with the registrar, as he was, but now the certification officer in respect of his administration of the political fund rules where he has the job of making certain decisions under Section 3 of the 1913 Act. He has, on occasion, been called to account by appeal or judicial review. It is understandable that the 1913 Act is not in the list for public funds because the public funding of a union to ballot its members to spend its funds on political purposes for one party or another would perhaps be slightly strange. However, there is the precedent of judicial review.
What is the Government's expectation about this? One of the criticisms of the recognition provisions of the 1975 Act was that nobody had really thought through the problem of what would happen when somebody went to the High Court, then to the Court of Appeal— it is, with no disrespect, not very difficult to foresee 1292 what would happen when one reached the Court of Appeal— and then to your Lordships' Appellate Committee, after long-drawn-out proceedings. Whether or not this is part of the step down the road towards controlling trade unions and forcing ballots upon them—which is a very great fear in part of the trade union movement and is the point about it being in the Bill; what a pity that the Government did not put this clause into a separate Bill, when it would not, as it were, have been infected with the anti-trade union spirit of the rest of the clauses— is it not the case that there is very likely to be a great deal of argument about the certification officer's administration of the scheme? And is it not also the case that the regulation drafts that we have seen are the sort of thing that we are inevitably going to end up with? If that is the case, then more and more trade union affairs will operate by means of judicial review in the High Court.
It is a fact that the trade unions in this country, and many managers in this country, do not wish to see broken the tradition of not taking industrial relations disputes to the High Court. There are those who sue for injunctions, there are trade unions sued by their members, but by and large it has been a good tradition to manage things between management and trade union members and officers without such litigation. Is this not a clause which is bound to give rise to a lot of disputes which, once they get into the hands of lawyers, are highly likely to end up in the High Court?
§ Lord DAVIES of LEEK
While I regret delaying the committee a little, nevertheless I think it is of importance to remember that there is much more in this clause than appears on the surface. I was glad that the noble Lord, Lord Houghton of Sowerby, at the end, with his usual vigour, demonstrated what he thought to be an essential part of this— a delaying tactic. Despite the repeal of the 1971 Industrial Relations Act the present Government, in this clause and subsequent clauses, show that they are committing themselves to reducing the bargaining power and the rights of trade unions. Sensible people in the CBI and everywhere else have already warned the unions of these possibilities. The Employment Secretary said that, unlike the 1971 Act, this Bill: 1293Is not a measure designed to change the whole structure of the unions. It is not a measure to clobber the unions ".I sincerely hope that to be true, because it would be a most insensible thing, and I believe in the main they hope that will happen. But will it? All I can say from this side of the Committee is that not only do the changes proposed in the Bill, and particularly in this clause, represent a major attack on the unions, but if we are not careful the man-to-man approach which has been worked out over a considerable number of years, of the CBI and the TUC as instruments of common sense in an apparent jumble of industrial relations, will be destroyed. On both sides, both in the CBI and the TUC, there is an appeal for common sense and not for hysteria in this approach. The Government, by refusing to talk with union leaders, for instance, are acting blindly and foolishly. The winds of change can become a destructive hurricane in the trade union movement and we can have in the future, on top of employment, together with the new technology, an industrial wilderness that we would not understand.
The law, too, has been changed. The lawyers will know that the labour injunction battle has now been reopened, and in my estimation this clause is an addition to the famous labour injunction battle. A weapon which in recent years has been used to great effect in trade unions by employers and judges working together has been the interlocutory or interim injunction. This clause is aiding that. What are we going to do with a union which has only 12 members, such as the Jewish garment workers or the jewellers? The law is not making any allowances for these different types, and the union with 12 members could hold up a factory of 12, 000. That figure may be exaggerated, but certainly they could hold up thousands because they are key skilled people. How are we to deal with that problem?
I propose to finish with just one further point. It is not so long ago that the noble and learned Lord, Lord Denning, created a new point of law out of this labour injunction issue, when he said:It is not sufficient that there should be an intent alone to further advance, help or encourage the union side of a trade dispute. There has to be a reasonable prospect of advancing the cause for it, to be given immunity".1294 In other words, something entirely new has been introduced into a trade union dispute. If I start a discussion with my employers, unless in the eyes of the law there is a reasonable chance that I shall win, the Government have now made a completely new point of law. I consider that this clause is, in its own devious way, creating a new point of law in trade unionism.
§ 4.34 p.m.
The Earl of GOWRIE
The message which I should like to convey to the Committee, and particularly to the noble Lord, Lord Davies of Leek, and to his noble friend Lord Wedderburn of Charlton, is that this particular clause is in fact full of stuff that meets the eye. They keep wishing to find things in it which will not meet the eye. Of course, the days are past when classical quotations were bandied around your Lordships' House, but they must have in mind the famous line about being suspicious of Greeks when they bear gifts, because all that this particular clause does is to enable the Secretary of State to give public money to unions to pay for ballots, if they so wish.
Echoing my noble friend Lord Boyd-Carpenter, I would say very sincerely to the noble Lord, Lord McCarthy, that when in an exchange with my noble friend Lord Orr-Ewing he said that my noble friend Lord Orr-Ewing knew nothing about union matters so what was he doing uttering about them, I do not think at the beginning of what will probably be a long and, I hope good-tempered Committee stage, that was a sensible remark. Industrial society is now very large, we are all intimately involved in it and many of us on this side of the Committee are involved with the unions, one way or another. I have paid tribute at this Dispatch Box to the academic and other expertise of the noble Lords, Lord Wedderburn and Lord McCarthy, and none of us doubts that, but they should not pull rank in this way if the Committee stage is going to be conducted amicably, as I am sure it will be.
The noble Lord, Lord McCarthy, was answered most brilliantly by my noble friend Lord Caldecote when my noble friend said that the noble Lord was suspicious of the Secretary of State's interference— I think that was the word he 1295 used— in trade union ballots, when in fact all that my right honourable friend was doing, of course, was paying for them. A certain amount of dismissive language was used in the debate about ballots. The noble Lord, Lord McCarthy, was rather fearfully dismissive of them and the noble Lord, Lord Houghton, was perhaps rather warily dismissive of them saying that he did not think they were either here nor there very much, while the noble Lord, Lord Wedderburn, spoke about the current worship of ballots. That phrase reminded me rather of the late Evelyn Waugh— no figure of the Left— who spoke about "the present craze for equality."T do not think it becomes noble Lords opposite to speak in a somewhat aristocratic and dismissive way like Mr. Waugh about democratic practices of which we do not expect too much but certainly do not wish to see not taking place at all.
A point was made about the involvement of the certification officer and I shall be arguing a little later, when we deal with the debate on the issue of compulsory or mandatory secret ballots, that we do not want to over-involve the certification officer but it is clearly necessary to have some independent figure to look after the scheme where the disbursement of public money is involved. I am sure noble Lords opposite would be very suspicious if the Secretary of State handed it out at whim, individually. In the vast majority of cases where a responsible union conducts a normal ballot, no problems will ensue.
The noble Lord, Lord Lee of Newton, was suspicious of the phrase "independent trade unions ", but we take this phrase from the previous Government's legislation— from the Trade Union and Labour Relations Act 1974, and as amended in 1976. It seems to be a good workable definition and it is used also throughout the Employment Protection Act, and there is nothing more sinister in it than that. I am sure noble Lords opposite will have plenty of meat to get their teeth into as we progress with this Committee stage, but they are starting with an air of somewhat 1296 unwarranted suspicion. There is wide public support, as noble Lords opposite have said, for the more extensive use of secret ballots in unions, and a growing recognition within the union movement itself that ballots on important matters are desirable.
We are not naive; we do not think that a ballot always results in a strike being postponed or called off or not held. But we are concerned, as the noble Lord, Lord Houghton, acknowledged, about occasions when there is a gap between members and their representatives. But that concern notwithstanding, this clause, as my noble friend Lord Lyell spelled out very clearly in respect of the first amendment, does not impose a mandatory requirement on the unions to hold secret ballots. The Government have made clear their strong support for wider use of secret ballots before industrial action and in the case of election of union officials. But of course we feel that these ballots should be voluntary, and they should be encouraged to take place in a way that fortifies existing good practice and existing responsible behaviour. We believe that the clause is a significant step to this end, and that is why I commend it to the Committee.
§ Lord MCCARTHY
I am afraid that we cannot agree not to vote against the clause standing part. I simply want to say that I had no intention of suggesting that I knew more about industrial relations than anybody else in this House. What I was trying to say— I think Hansard will bear me out— was a confession, that I thought that I probably knew more than most people about some of the bends and shifts of trade union democracy. That was all. It is because I consider that I know something about the bends and shifts of trade union democracy that I am not an unreserved, unthinking ballot man. We press this to a Division.
§ 4.42 p.m.
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ Their Lordships divided: Contents, 155; Not-Contents, 72.1297
|Ailesbury, M.||Ellenborough, L.||Masham of Ilton, B.|
|Airedale M.||Elliott of Harwood, B.||Middleton, L.|
|Airey of Abingdon, B.||Elton, L.||Milverton, L.|
|Alport, L.||Emmet of Amberley, B.||Monson, L.|
|Ampthill, L.||Enniskillen, E.||Morris, L.|
|Amulree, L.||Evans of Claughton, L.||Mowbray and Stourton, L.|
|Auckland, L.||Evans of Hungershall, L.||Newall, L.|
|Balfour of Inchrye, L.||Exeter, M.||Nugent of Guildford, L.|
|Banks, L.||Faithfull, B.||Onslow, E.|
|Bellwin, L.||Falkland, V.||Orkney, E.|
|Belstead, L.||Ferrers, E.||Orr-Ewing, L.|
|Berkeley, B.||Ferrier, L.||Pender, L.|
|Bessborough, E.||Forester, L.||Piercy, L.|
|Boothby, L.||Fortescue, E.||Porritt, L.|
|Boyd-Carpenter, L.||Fraser of Kilmorack, L.||Rawlinson of Ewell, L.|
|Bradford, E.||Gainford, L.||Redmayne, L.|
|Bridgeman, V.||Gibson-Watt, L.||Reigate, L.|
|Caccia, L.||Glendevon, L.||Robbins, L.|
|Cairns, E.||Glenkinglas, L.||Roberthall, L.|
|Caithness, E.||Gore-Booth, L.||Rochdale, V.|
|Caldecote, V.||Gowrie, E.||Rochester, L.|
|Campbell of Croy, L.||Gridley, L.||Romney, E.|
|Cathcart, E.||Grimston of Westbury, L.||St. Aldwyn, E.|
|Chalfont, L.||Haig, E.||Salisbury, M.|
|Chelwood, L.||Hailsham of Saint Marylebone,||Sandford, L.|
|Chesham, L.||L. (L. Chancellor.)||Sandys, L. [Teller.]|
|Chitnis, L.||Hampton, L.||Seebohm, L.|
|Clancarty, E.||Hankey, L.||Sempill, Ly.|
|Clifford of Chudleigh, L.||Hanworth, V.||Simon, V.|
|Clwyd, L.||Harmar-Nicholls, L.||Skelmersdale, L.|
|Cockfield, L.||Henley, L.||Soames, L. (L. President.)|
|Colville of Culross, V.||Hill of Luton, L.||Somers, L.|
|Cork and Orrery, E.||Hillingdon, L.||Spens, L.|
|Cottesloe, L.||Hives, L.||Stamp, L.|
|Craigavon, V.||Home of the Hirsel, L.||Strathclyde, L.|
|Crathorne, L.||Hood, V.||Strathcona and Mount Royal, L.|
|Croft, L.||Hornsby-Smith, B.||Strathspey, L.|
|Cromartie, E.||Hylton-Foster, B.||Torphichen, L.|
|Cullen of Ashbourne, L.||Keith of Castleacre, L.||Tranmire, L.|
|Daventry, V.||Kilmany, L.||Trefgarne, L.|
|Davidson, V.||Kimberley, E.||Trenchard, V.|
|De Freyne, L.||Kinloss, Ly.||Trevelyan, L.|
|De La Warr, E.||Lauderdale, E.||Vaux of Harrowden, L.|
|De L'Isle, V.||Lindsey and Abingdon, E.||Vernon, L.|
|Denham, L. [Teller.]||Long, V.||Vickers, B.|
|Derwent, L.||Lucas of Chilworth, L.||Vivian, L.|
|Digby, L.||Lyell, L.||Ward of Witley, V.|
|Dormer, L.||McAlpine of Moffat, L.||Watkinson, V.|
|Dowding, L.||Mackay of Clashfern, L.||Westbury, L.|
|Drumalbyn, L.||Mackie of Benshie, L.||Wigoder, L.|
|Eccles, V.||Macleod of Borve, B.||Winstanley, L.|
|Effingham, E.||Marley, L.||Young, B.|
On Question, amendment agreed to.
|Allen of Fallowfield, L.||Davies of Penrhys, L.||Listowel, E.|
|Ardwick, L.||Elwyn-Jones, L.||Llewelyn-Davies of Hastoe, B.|
|Bacon, B.||Fisher of Rednal, B.||[Teller.]|
|Balogh, L.||Gaitskell, B.||Lloyd of Hampstead, L.|
|Barnby, L,||Gardiner, L.||Lovell-Davies, L.|
|Birk, B.||Glenamara, L.||McCarthy, L.|
|Blease, L.||Goronwy-Roberts, L.||Maelor, L.|
|Blyton, L.||Gosford, E.||Melchett, L.|
|Boston of Faversham, L.||Hale, L.||Milford, L.|
|Bowden, L.||Hatch of Lusby, L.||Oram, L.|
|Brimelow, L.||Henderson, L.||Parry, L.|
|Brooks of Tremorfa, L.||Irving of Dartford, L.||Peart, L.|
|Bruce of Donington, L.||Janner, L.||Phillips, B.|
|Cooper of Stockton Heath, L.||Kaldor, L.||Pitt of Hampstead, L.|
|Darling of Hillsborough, L.||Kilbracken, L.||Plant, L.|
|David, B.||Leatherland, L.||Ponsonby of Shulbrede, L.|
|Davies of Leek, L.||Lee of Newton, L.||[Teller.]|
|Rhodes, L.||Stedman, B.||Wallace of Coslany, L.|
|Ritchie-Calder, L.||Stewart of Alvechurch, B.||Walston, L.|
|Ross of Marnock, L.||Stone, L.||Wedderburn of Charlton, L.|
|Salisbury, M.||Strabolgi, L.||Wells-Pestell, L.|
|Sefton of Garston, L.||Strauss, L.||Whaddon, L.|
|Segal, L.||Taylor of Blackburn, L.||Willis, L.|
|Shackleton, L.||Taylor of Mansfield, L.||Wootton of Abinger, B.|
|Shinwell, L.||Underhill, L.|
§ Resolved in the affirmative, and Clause 1 agreed to accordingly.
§ 4.52 p.m.
§ The EARL of GO WRIE moved Amendment No. 2:
§ After Clause 1, insert the following new clause:
§ ("Secret ballots on employer's premises
. — (1) Subject to subsection (3) below, where an independent trade union proposes that a relevant ballot be held and requests an employer to permit premises of his to be used for the purpose of giving workers employed by him who are members of the union a convenient opportunity of voting, the employer shall, so far as reasonably practicable, comply with the request.
(2) A ballot is a relevant ballot for the purposes of this section if—
(3) Subsection (1) above shall not apply where, at the time the request is made, —
(4) A trade union may present a complaint to an industrial tribunal that it has made a request in accordance with subsection (1) above and that it was reasonably practicable for the employer to comply with it, but that he has failed to do so.
(5) An industrial tribunal shall not entertain a complaint under this section unless it is presented to the tribunal before the end of the period of three months beginning with the date of the failure, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months.
(6) Where a tribunal finds that a complaint under this section is well-founded, the tribunal shall make a declaration to that effect, and may make an award of compensation to be paid by the employer to the union which shall be of such amount as the tribunal considers just and equitable in all the circumstances having regard
to the employer's default in failing to comply with the request and to any expenses incurred by the union in consequence of the failure.
(7) An appeal shall lie to the Employment Appeal Tribunal on a question of law arising from any decision of, or arising in proceedings before, an industrial tribunal under this section.
(8) The remedy of a trade union for a failure to comply with a request made in accordance with subsection (1) above shall be by way of a complaint under this section and not otherwise.
(9) Expressions used in this section and in the 1974 Act have the same meanings in this section as in that Act.")
§ The noble Earl said: Before I move the new clause I should like to point out that a really historic occasion has just taken place, and it should not pass without remarking that the Labour Party in Committee in the House of Commons did not oppose the provision of public funds for secret ballots, but the Labour Party in the House of Lords has just done so— although happily it has been defeated. That seems to me to be a really remarkable turn up for the books, and what sociologists of the future will make of it, of course, I do not know.
§ Although this amendment, this new clause, appears in my name and therefore appears as a Government amendment, it is right that I should acknowledge straight away that it is, in a sense, an amendment with a strong connection with a Member of your Lordships' House. I must acknowledge the role which the noble Lord, Lord Robens, has played in its conception. The noble Lord has, over the years, been a consistent advocate of secret workplace ballots and has urged through the CBI and also personally that the Government should amend the Bill as I shall set out. I should like to pay tribute to the noble Lord and to thank him for his help.
§ The Government regard the wider use of secret ballots for decision-making throughout the trade union movement as being vital to the improvement of industrial relations. We do not, as we have sometimes been accused— indeed, as we were accused when we debated the last amendment— regard secret ballots as an auto- 1301 matic passport to good industrial relations, and nor do we have unrealistic expectations that they will inevitably produce results which are easy for Governments to live with. But we do think it right that more democratic decision-making should be encouraged within our trade unions and that unions should be given every encouragement to involve their individual members in decisions which affect them.
§ Our approach, which was foreshadowed in our manifesto, is to provide voluntary encouragement through the provision of public funds for union elections and other important issues, and that is what, as we have just seen, Clause 1 of the Bill sets out to do. We believe that in removing the financial constraints on unions it will provide an important incentive for them to encourage the more widespread use of ballots.
§ The Government are already consulting on the proposals for the scheme to give effect to Clause 1 and a copy of the proposals is in your Lordships' Library. As soon as possible after the Bill becomes law, we intend to lay a scheme before Parliament so that it can start to operate quickly. The scheme is an innovation with few even remote parallels elsewhere in the world. We are proposing that the scheme be drawn initially to concentrate public funds on those areas where the financial burdens on unions are potentially heaviest, where ballot arrangements most need to be encouraged, and where the independent certification officer, who is to operate the scheme, can most easily be assured that the essential conditions relating to secrecy have been met. In short, it is proposed that in the first instance the scheme should cover postal ballots dealing with trade union elections, calling or ending a strike or other industrial action, union amalgamations, and changes to union rules.
§ It is not the intention that the scheme should cover from the outset workplace ballots. The Government believe it desirable and necessary, especially in view of the possible public expenditure considerations, to gain some practical experience of the scheme as proposed before we go any further. However, this is not to say that we do not wish to see unions conduct more secret workplace ballots as well as secret postal ballots. On the contrary, we feel that both are desirable. It is 1302 wrong, it seems to us, that votes on strike action, for example, should be taken at mass meetings where the individual has no opportunity to cast a vote privately, and may be overtly, or covertly pressured to vote one way or another.
§ From the Benches opposite the noble Lord, Lord Wallace of Coslany, said on 6th December, 1978 on behalf of the last Labour Government, that even his Government had reservations about union decision-taking at mass meetings, and I think that those sentiments would be endorsed by noble Lords on all sides of the Committee. Indeed, we heard them expressed from the Cross-Benches during the debate on the previous amendment.
§ The Government have been addressing themselves to the question of how they might encourage secret workplace ballots in a simple way. In our consideration of this question we have had the great benefit of the views of the noble Lord, Lord Robens, with all his experience of these matters, and he has put forward the idea which now finds concrete expression in the new clause which I now commend to your Lordships concerning secret ballots on employers' premises. I beg to move.
§ Lord MCCARTHY
I have no desire to rehearse the arguments that we have discussed previously, about ballots. I think that, within the context of clauses dealing with ballots, it is probably more sensible to have a secret ballot on the employers' premises than— as I had thought, under the Notes to Clauses which the Government published— to confine the ballots to postal ballots. I think that ballots on employers' premises are often more effective, particularly if those ballots can go along frankly with mass meetings.
Again, the noble Earl has made sweeping remarks about mass meetings. Mass meetings are very often an essential part of putting to a workforce the issues about to go to ballot. Very often it takes great courage to face mass meetings. Nevertheless, trade union officials frequently have to do that in order to put the unpopular policies of their executive council which subsequently go to ballot. So, although we continue to have a number of reservations about this clause, which has many of the defects and ambiguities which were spelt out earlier by my noble friend Lord Wedderburn of Charlton, we do not intend to divide on it.
§ 5 p.m.
§ Lord WIGODER
We, on these Benches, welcome this new clause and hope that it will be incorporated in the Bill in due course. It is in no critical spirit that I venture to make two observations to the noble Earl, Lord Gowrie, in the hope that, if the amendment is incorporated, he might consider them when we come to the next stage in this Bill.
First, there is the question raised by subsection (3) (b), whereby there is excluded from the operation of this clause any concern where:the number of workers employed by the employer, added to the number employed by any associated employer, does not exceed twenty ".I am not aware— but it may be my ignorance— of any definition of the term "associated employer". On the face of it, it seems to me that it may give rise to a little difficulty.
But, rather more significantly, I find it difficult at first sight to see why the comparatively small business should be excluded from the operation of this clause. In many ways, it is even easier for the small firm than it is for a larger firm to comply with any request that there should be a ballot on the premises. The noble Earl might think that either there is a clear explanation as to why that subsection is included or, alternatively, the matter might be looked at again in the light of those observations.
The other matter to which I would draw the noble Earl's attention is contained in subsection (6) where, in order to enforce the new clause, if there is a breach by the employer, a tribunal can make an award of compensation. I quite see that the award of compensation should be as set out at the end of subsection (6); namely:any expenses incurred by the union in consequence of the failure ".In other words, the union might say that it had to rent a local village hall to carry out the ballot, or whatever it may be. That I can fully understand. What troubles me a little are the other words in the subsection, that the tribunal is required to make an awardof such amount as the tribunal considers just and equitable in all the circumstances having regard to the employer's default in failing to comply with the request",1304 those words obviously being quite a separate consideration from consideration of what expenses were incurred by the union in consequence of the failure.
Again, at first reading it seems that that puts an impossible task upon any tribunal I find it very difficult to see how it could set about assessing any measure of compensation, bearing those matters in mind. Indeed, I can see very real problems arising, where a union might say that because of the employer's failure it was caused to embark upon some course of action upon which it might otherwise have not embarked if the employer had complied with his obligations under the clause. Some vast and un-quantifiable measure of damages might be claimed by way of outcome. Again, it appears that the wording in subsection (6) might be tightened up in order to eliminate that possibility.
§ Lord BOYD-CARPENTER
I should like to say how glad I was to hear the noble Earl's tribute to the noble Lord, Lord Robens. I happen over many years to have seen some of the noble Lord's work— quiet, unostentatious, enormously effective— in the cause of good industrial relations in this country. It is right that from that Box at this stage of our proceedings my noble friend should put on record the great debt that this House and the country owe to the noble Lord.
The Earl of GOWRIE
I am grateful to the Committee for the relatively popular reception that the new clause has had, and to the noble Lord, Lord McCarthey, in particular for undertaking not to divide against it. As my noble friend has just said, I am sure that it was perhaps the potent name of the noble Lord, Lord Robens, which might have made the noble Lord, Lord McCarthy, think twice rather than the way in which I introduced the clause. I would simply say to the noble Lord, Lord McCarthy, that it is quite wrong to say that we are against mass meetings. Of course we are not against mass meetings, but we have serious reservations— as I understand did the last Government— about any public votes which are taken at mass meetings. A distinction must be made there.
I think that the noble Lord, Lord Wigoder, was quite right in saying that subsection (3) (b) needs some further 1305 qualification or explanation. The Government do not believe that the new obligation which my new clause lays on employers will be particularly onerous or unreasonable for them to undertake. The CBI has advocated a measure of this kind, in agreement with the noble Lord, Lord Robens, and it agrees with us there. But we feel— and I think that it would be reasonable to expect the Liberal Party in this regard also to feel— that it would be wrong at this juncture in time to put any new obligations of any kind— where they could be avoided— on very small employers, because to do so would be to run counter to our general aim, which the Liberal Party certainly shares, of trying to lighten the weight of employment legislation on very small employers and of reviving encouragements to enterprise. But I think that I can reassure the noble Lord that in practice common sense would suggest that where a very small firm is involved the management will have a fair idea of the feeling of its workforce, and in any case where a union is recognised in very small firms, it should have no real difficulty in making arrangements to take members' views by a secret ballot.
On the point about unreasonable expense or the difficulties that may be experienced by a tribunal over awarding costs, I do not think that in the kind of instance envisaged by the new clause the costs would pile up in the way that seems to alarm the noble Lord. However, I may not have his remarks quite right. I shall undertake to look at what he said, and write to him, and if he does not think that the point is met, perhaps he would like to return to it at a later stage.
§ Lord WEDDERBURN of CHARLTON
Before the noble Earl resumes his seat, there is perhaps one slightly technical point in the clause which I should like to raise. We on this side of your Lordships' Committee have noticed with interest that it applies to firms where there are 20 "workers ". That is a very different term from "employees", of course; it is much more widely defined in the 1974 Act, and includes contracts of service and for services, including people working on, for example, the Lump in a construction firm. If you take 20 workers employed by an employer and his associated employer— that is, any other company in the group— as the 1974 1306 Act in effect defines it, that is a very different cut-off point from what we find elsewhere in the Bill.
If we are to have a clause to this kind, about which I am very doubtful, at least in those terms it seems a very sensible clause. I take it that the Government mean what it says there, and that they will not confine it to 20 employees, which we find later in the Bill and about which in later clauses we shall have some criticisms to make.
§ Lord WIGODER
In relation to the observation made by the noble Earl, Lord Gowric, I am not concerned about the provision that costs might be awarded; I am concerned about the provision that a tribunal may make an award of compensation, which seems to me to go far beyond the question of costs.
§ 5.8 p.m.
§ Viscount COLVILLE of CULROSS: moved Amendment No. 3:
§ After Clause 1, insert the following new clause:
("Secret ballots on strikes and industrial action
.— (1) Members of a trade union may, in accordance with the provisions of this section, require there to be held a secret ballot for either of the purposes mentioned in subsection (2) below.
(2) The purposes referred to in subsection (1) above are: —
(3) A ballot under this section may be required by the members of the union directly affected being five hundred in number or fifteeen per cent of those so affected whichever may be the less, by means of their giving notice in writing, indicating the matter upon shich they wish a ballot to be held, to the Certification Officer, or to the committee of management of the union or to the employer who shall forthwith transmit it to the Certification Officer.
(4) Upon receipt of a notice under subsection (3) above the Certification Officer shall, subject to subsection (5) below, ensure that a
ballot is conducted in accordance with the following provisions: —
(5) The Certification Officer may refuse to conduct a ballot if within twenty-eight days prior to the receipt by him of a notice under subsection (3) above another such notice shall have been received by him indicating a matter which is similar or substantially similar to that indicated upon the second occasion.
(6) It shall not be lawful for any employer, his servant or agent, any employers' association or trade union or any member or official of that association or trade union to obstruct the ballot officer in the performance of any of his functions under subsection (4) above, and in the event of any such obstruction the ballot officer may apply to the county court for such order or declaration as the court may think fit to grant, but he shall have no other remedy.
(7) If after the result of the ballot is announced the officials or committee of management of the union fail to take such steps as may be requisite to comply with that result, the ballot officer may apply to the countty court for such order as the court may think fit to grant to compel such compliance.
(8) In any proceedings under subsections (6) or (7) above the court may order the costs of the proceedings to be paid, in such proportions (if any) as it thinks fit, by any person or body as it considers to have been in default.")
§ The noble Viscount said: On Clause 1 we had a most instructive— at least to me— discussion about the provisions in the Bill as to ballots. I listened with interest to everything that was said. As I think the noble Lord, Lord McCarthy, prophesised, it is perfectly true that this amendment suggests to your Lordships that we should take these provisions a little further. First, let me explain to the Committee why I seek to trouble the Committee with a discussion upon this subject at all.
§ In another place— and far be it from me to breathe a word of criticism about the way in which the procedure is there conducted— what happened was that their 1308 were no fewer than four new clauses relating to this general area, all of which were— I suppose for the sake of expedition— discussed together and upon which there was a general debate. There was a vote on one of them, which was overwhelmingly rejected, but there were, it seemed to me, a number of matters left unresolved, in that after all the criticisms had been brought forward there still seemed to be room for a provision which could be discussed, but which was not, and which would aviod a great deal of the difficulty that was there described. It therefore seemed to me and some of my noble friends that it would be wholly right for your Lordships to look at this again but to look at it on the basis of an amendment which I hope at least has succeeded in filing down the point at issue and avoiding a great number of the criticisms that were made.
§ The point to which I believe a number of people wish to apply their minds is exactly that which my noble friend Lord Gowrie has just mentioned, and I entirely understand the reservation that the noble Lord, Lord McCarthy, had about it. It is the question whether the decision about the initiation or continuation of a strike should be left to a mass meeting— not the instruction about what the issues are but the decision-taking exercise— or whether, in the case of unions which do not provide for it (and a number of them do), there should be a provision whereby those affected should be allowed to ask for a ballot. They are, after all, those whose wages are at stake, and I suppose in some cases, if the strike or industrial action goes on for long enough, their very jobs are at stake.
§ What, therefore, I seek to draw to the Committee's attention is the possibility that, where union rules do not provide for it as a matter of course, we should seek some machinery whereby those who would like to put the matter to the test should be able to do so, and I imagine that this would chiefly apply on those occasions already discussed by the Committee, where the unions do not provide expressly in their rules for this one way or the other.
§ I must deal first with the points that arose in another place, and I shall do so quickly. It was suggested there that there were a number of circumstances where 1309 ballots by the members of the union in relation to suggestions of official action would be both unlikely and inappropriate, because of the psychology of what was going on. Very well, but under the proposal I put forward there would be no requirement for any ballot to take place, because it lies entirely in the hands of the union members whether or not to take advantage of it. In other words, to pick up what the noble Lord, Lord Houghton of Sowerby, said, if the vast majority wish to remain silent, silent they may remain; there is nothing imposed on them in that respect.
§ Then it was objected in another place that the machinery being proposed was compulsory. It is here that I think I shall have terminological difficulties with my noble friend Lord Gowrie and perhaps with noble Lords opposite because I do not conceive that the proposals I put forward can in any proper sense of the word be called compulsory. They would be exercised only when a substantial number of members of a union of their own volition decided to exercise them. To have any ballot, you must have some machinery whereby it is started. If it is an official ballot, the decision is no doubt taken by the proper officers of the union. If it is a ballot of the sort I am suggesting, my proposal is that it should be started off by the requisite number— and there is a minimum— of the members of the union. So although I know I shall be told, for reasons that I frankly cannot understand, that this is a compulsory ballot, I do not agree with that point of view.
§ On the drafting of the clauses that were before another place, there was a criticism that ballots could prolong strikes or enable militants to cause disruption. If the Committee looks at the two limited purposes for which alone this clause is designed, the Committee will see that in subsection (2) there is very little chance of that taking place because it operates only for union members to prevent their official authorities, whether national or local, from either calling them out on strike or industrial action or prolonging it; it does not give an opportunity for people to initiate strikes if they are militant and wish to do so, and therefore I hope that is cured.
§ It was further suggested in another place that provisions of this sort would 1310 encourage unofficial action and undermine the authority of trade union leaders. I am anxious to hear what noble Lords have to say about that. It would seem to me inherently unlikely. If there is a piece of machinery whereby trade union leaders know that the voice of their membership can be made known to them— and be made known compulsively to them— then they are likely to be even more careful to make sure they are in tune with the vast majority of the union members concerned. That would seem to me to indicate that they are likely to take a more, rather than a less, responsible attitude towards their responsibilities and towards their members.
§ Of course, in particular the criticism that arose on this score in another place derived from the fact that the proposals were such that the sanction would be the loss of the trade unions' immunities. I have been very careful to avoid that and there will therefore be no danger of that particular encouragement being given to unofficial action. Indeed, I concede that I have not dealt with unofficial action, because having read with great care the speech of my right honourable friend the Secretary of State, I was very much persuaded by the difficulties which, he explained, lie in the way of that course.
§ I hope the drafting of the new clause is fairly clear. I have been most careful, as I said, not to put forward any sanction in the way of loss of immunities but, rather, a very simple one for the person who is running the ballot. There is recourse to the county court, which has powers to make the necessary orders and which of course is local and can operate very quickly. It has been the experience in recent years— and I think of Duport Steels v. Sirs — that the unions obey orders of the court, and indeed I know that every encouragement has been given to individual unions by the union movement as a whole so to do. Therefore, there seems little difficulty, at any rate for the moment, in trying it on the basis of that sanction.
§ There is the Green Paper to come and I do not wish in any way to forestall what the Government may suggest in that. There are also costs, which are dealt with in subsection (8), and those can be imposed on anybody in default. It is impossible for a Member of your Lordships' House to impose the cost of these proceedings 1311 on public funds— it is also, I understand, impossible for a Back-Bench Member in another place— but if some machinery of this sort should find favour with my noble friend and his colleagues on the Front Bench, they, and they alone, would be able to put that right. What I am putting forward, drafted as best I can, is an opportunity for those whose livelihood is in danger, and only for them. This gives a chance to have the ballots for which their union rules do not appear— or at any rate do not appear clearly— to provide and which the union of its own motion will not provide for them. I think that the new clause meets all the objections raised in another place, and I am very anxious indeed to hear what noble Lords in the Committee have to say about it.
§ The noble Lord, Lord McCarthy, has made clear his approach to our proceedings here, and I shall be particularly glad to have guidance from his great experience about practical difficulties that would arise, because this is the attitude that I put forward to the Committee: we ought to try to discuss this matter on a pragmatic basis to see whether there is some scintilla of machinery which could be devised and which would fit into the existing philosophy of the trade unions and the practices and indeed the diversities that we have all heard about.
§ Therefore I invite the Committee to engage on a constructive debate, though I hope not a very long one, to see whether after all we can provide for a small extension to what is already included in the Bill without in fact doing any very great harm to the underlying philosophy of the measure. I beg to move.
§ 5.21 p.m.
I rise to support the amendment. I consider that it answers some of the points made by the noble Lord, Lord Houghton of Sowerby, earlier this afternoon when he spoke about ballots being necessary only when the important matters appear to be contentious. In this case we consider that the members of a union should be given the opportunity of testing the strength of feeling inside the union for a decision which has already been taken by their leadership to call a strike, or, later after the strike has started, to see whether the feeling of the member- 1312 ship is that the strike should be ended. Those are the only two occasions on which this machinery would come into operation, and I believe that it gives what the noble Lord, Lord Houghton, described as the silent majority— and why are they always silent?— an opportunity of not remaining silent without prejudicing their livelihood by appearing to dissent at an open mass meeting from suggested decisions put to them from the platform.
I believe that we should look at this matter in a very similar light to the provisions which already exist for shareholders in a company who, if a sufficient minority of them so desire, have the right to call an extraordinary general meeting of the company and to test the decisions of the board. I am quite sure that the noble Lord, Lord McCarthy, will tell me that this would be disruptive of the trade union leadership, but that right given to shareholders is not disruptive of the boards of companies. They continue to direct the affairs of the companies, and only very occasionally do they have to alter a decision because their membership, their shareholders, think otherwise. Therefore, I commend the amendment to the Committee.
§ Lord ALPORT
I should like to make one remark with regard to the amendment. I think that the noble Lord, Lord Spens, is wrong in trying to draw a parallel between the position of shareholders in a company and the position of trade unionists in a trade union movement. I think it an absolute fallacy to suppose that what can apply to a public or private company can apply to the very often highly charged political situations in which trade union leadership finds itself. I believe that the amendment, if accepted by your Lordships' Committee, would in fact go far to act against the interests of what we require in the trade union movement, which is strong leadership. It would undermine the position of the leaders, and, what is more, it would I believe assist the militants.
The speech of my noble friend Lord Colville of Culross was based on the assumption that the rank and file trade unionists are usually in favour of ending the strike, whereas the leaders and the shop stewards are in favour of its continuing, but that is not always the case by any manner of means. I believe that what is important now is to take the Bill 1313 only as far as is intended at the present time, to see how it goes, and not to try to add to it, particularly after it has been considered carefully by another place.
Therefore, I very much hope that my noble friends will not press this matter to a Division. Obviously there is everything in favour of a discussion of it, but I very much hope that we do not try to take the Bill farther than is intended at the present time, because we know very well the problems that have arisen on earlier Bills dealing with this subject. The policy that we should follow here, so far as the Government are concerned, is to try to make some progress along the lines towards better industrial relations, see how successful that is, and then, if necessary, think again in the light of the experience of (he working of the Bill when it becomes law.
§ Lord WEDDERBURN of CHARLTON
The remarks of the noble Lord, Lord Spens, require one of those of us who sit on this side of the Committee to comment. I hope that we are not to have the debates on this Bill against the background of the claim that the avenues of democracy in the trade union movement are so closed, as the noble Lord suggested. I agree with my noble friend Lord McCarthy: the avenues of democracy in the trade union movement in Britain today are more effective and wider than those in almost any other institution in our society. It really will not do to ignore the fact that trade unionists spend much of their time voluntarily administering their union on a democratic basis in the branch, the regional committee, the district committee, the specialised committees and groups, annual conferences and special rules revision conferences. It really will not do for a Chamber of this authority to approach trade union affairs in that manner.
I agree with the noble Lord, Lord Alport, that trade unions are not like companies. It is one of the assumptions of those who speak to amendments of this kind that they are organisations of people, rather than for people. The noble Viscount, Lord Colville of Culross, moved what is in my opinion a rather extreme amendment in a very moderate manner, but I suggest that it needs to be looked at with care, especially— if the noble Earl, Lord Gowrie, can be persuaded to consider this point— 1314 because it is along the road that the Government's own logic is pointing.
The amendment— though, with respect to the noble Viscount who moved it, I think it is very badly drafted— is rather like the logic of the noble Earl's own Government position, f cannot quote his exact words, but I hope that I do not misrepresent him when I say that in one of our earlier debates he suggested that the wider use of secret ballots was regarded by the Government as an answer to many industrial relations problems. We have not had them specified very well in this Chamber, but the use of, and belief in, ballots is of course exposed here in a very wide form.
When the noble Earl comments that we on this side of the Committee divided against Clause 1 here when that was not the case in Committee in another place, first, he omits to notice that on5th February, as reported at column 210 of the Commons Official Report, our honourable and right honourable friends made very clear that they did not like the clause, particularly in relation to its practicalities, and that certain matters were to be considered in that place later on Report.
Secondly, in so far as he accuses us of being more affected by the classical concept (which I will dare to put, as he did not) of timeo Danaos et dona ferentes, he must remember that it was he who presented the Bill as a gift wrapped in five parcels at Second Reading, and it may be that by now we have been able to see Clause 1 in its context rather better than our honourable and right honourable friends could when they saw it in another place. It is all part of the plan; and the plan, I suspect, causes the Government some embarassment when it comes to this amendment, because, of course, if you are going to have ballots curing industrial relations problems, although you do not say what they are, then I suppose logically you ought to consider (and, indeed, I wonder whether the noble Earl will give us a guarantee that the Government will not consider in their Green Paper) going further down the road towards this type of amendment. The noble Earl shakes his head; I will get no such assurance. In that case, we must look at this very carefully, because this may be what comes next year. This may be only the precursor 1315 of what comes next year, and the Government will be looking at the problems, of course.
The first problem in the clause is that members are to be balloted as to whether theywish to comply with a call or instructionto take strike action. There is nothing in the clause saying that those members who wish to have an instruction should be able to ballot to demand such an instruction; but, of course, any even-handed Government would have to give the chance of that question as well. Then there is to be a ballot on the requirement that the committee of management issue an instruction that strikes be ended. There is no reference to strikes continuing. It would be difficult for the Government to resist the view that the members should have the right to vote on the issue, not merely on loaded questions.
Of course, that is one of the problems, because the Government know very well, as my noble friend Lord McCarthy suggested, from the experience of the compulsory ballots of 1972 under the Industrial Relations Act, from the experiences in the United States and Canada and from various types of experience with compulsory ballots, that the problem is that you cannot rely on the result that you arc going to get, because workers are rather independently-minded people. They are particularly independent and rather "bloody-minded ", if I may use the phrase, when they are forced into certain situations that they do not want to be in; and if you force them to vote on an inflamed industrial situation they are very likely to take a very sharp and acid attitude to the matter and, if they are compelled to vote, they are much more likely to vote to continue the action than to end it, in many situations. Experience throughout the world shows that is so.
We are told that this will make union leaders more responsible. Trade union leaders are in a situation of making democracy work by that delicate complex of the two facilities and faculties required— leadership, on the one hand, and response to the genuine feelings of the movement at grass roots level, on the other. The trade union leader has a much greater difficulty than any politician in bringing those two faculties together in responsible 1316 leadership. He will not be helped by clauses of this sort, on which I make only two other remarks because, again, they are relevant to what may come next. If you are going to have compulsory ballots, you arc going to have to decide certainly three things— and a lot more, of course. You have to decide to give the county court jurisdiction, and then to have the disobedience of its orders made into some kind of contempt of court.
The noble Viscount, Lord Colville, suggested that trade unions will always obey the orders of the ordinary courts. On Second Reading I had occasion to say, and I say it again, that neither this Government nor any other should be so confident at squandering the capital of the ordinary legal system of this country that they use it for purposes which trade union members and their leaders may not accept. It is not a capital to be squandered lightly on unwise legislative measures; and if the noble Viscount quotes the recent case of the steelworkers' leaders accepting an injunction until it was reversed, of course, by the House of Lords four days later, nevertheless he will also have noted that in the "Day of Action"injunction one of the printing unions decided democratically not to accept the injunction, and in fact defied it. I hope there will not be many more of those occasions, but it depends on the Government and on those who put measures like this before legislatures how many there will be.
Then you have to look at some other features of the road down which the Government measures point. First, you have to say, "Who can demand the ballot?"Here, it is 500 members or 15 per cent. Surely, anybody who knows anything about trades union affairs knows perfectly well that this would be a recipe for every dissident group, be it militant or be it moderate, be it up or down, Left or Right. Every group would then demand its ballot, and you would not keep it to strikes. Why should you keep it only to strikes? If you believe in having compulsory ballots, why keep it to strikes or industrial action? There are many other very important things.
Then you have to say, "Who is going to decide the question?". You take that, and you give it to the certification officer. Down the road you go to the 1317 law overriding the rules of the trade unions, and the trade unions are picked on, as they are in later clauses of this Bill in other ways. This is a quite logical clause in many respects in regard to the later clauses of the Government's Bill, however moderate Clause 1 may have been. You go to the certification officer and you say, "No, the union cannot choose the question; the certification officer shall choose the question". What is more, although it is put in terms of a prohibition the clause would in fact allow him to insist upon a ballot every 28 days. So every 28 days there would be the workers voting on a question made up by the certification officer! I can only think that the noble Viscount's experience of trades union affairs has got to such a despairing pitch that he feels he can only keep the workers out of trouble by keeping them constantly voting at the ballot box. It is an extraordinary picture to put before your Lordships' Committee.
Finally, I comment on a matter which will come before your Lordships' Committee in connection with a later clause. When ballots are discussed they are always discussed, and quite rightly discussed, against the phrases, "secret ballots" and "free and fair"; and certainly later in this Bill we shall want to question the concepts and the meaning of "free and fair ballots ". Very little thought has been given to this in this country, but other countries have experience of discussions on this matter. We are entering an era of ballots because they are fashionable. I suspect they will solve far fewer problems and may do a lot of harm if this road is proceeded with, compared with the ideas of those who now sponsor them, just as it would have done harm to insist upon the binding nature of collective agreements which British management did not wish but which was so fashionable in 1970, on equally bad grounds.
Then, if you proceed on this road you are in fact taking away from the union its democratic processes. Noble Lords who put forward viewpoints of this sort, as the Government do later in the Bill, are in fact taking away from the trade union movement, and are singling out the trade unions as bodies which shall not be allowed to decide certain matters for themselves, including even their own 1318 rules at democratic annual or other conferences. That is what this clause means, and that is what some later clauses of the Bill mean; and in that respect noble Lords on this side of the Committee could have nothing to do with a clause which would be very likely to give a great deal of difficulty and trouble to those managers and trade union leaders, shop stewards and works line managers, who actually have to do the work after the legislatures and the judges have packed up and gone home.
§ Baroness GAITSKELL
If the noble Lord will allow me, may I add two sentences, not only as a non-lawyer but as someone ignorant of the law? One thing that worries me— and I am not going into this amendment at all— is the fact that through this Bill there is a spread of secrecy which slightly alarms somebody who is not familiar with all the ins and outs of the law. It has really become an obsession with noble Lords on the other side— this secrecy which is stalking the whole of trade union law. Finally, may I say what a pleasure it is to see the noble Viscount, Lord Colville, speaking from the opposite Benches again after being a long time absent.
§ Lord HANKEY
I should like to intervene at this point to say that I hope the Government will think rather seriously about this amendment. I do not really agree with the noble Lord, Lord Alport, for whom I have the highest respect and to whom I always listen with the greatest attention. I think that Parliament is really faced with the absolute necessity of dealing with the trade union situation as we find it today; and, looking back over the last two years, I find that it has done really enormous damage to our industrial relations, spurred on by inflation, for which I blame successive Governments, which has a disastrous effect on industrial relations.
I should like to say this. Looking back at some of the trouble we have had in these two years, it is apparent that the measures in the present Bill do not really go far enough to deal with it. I think seriously that Parliament has an obligation to take these practical considerations into account and to deal with them effectively. I am sorry that this Bill did not reach this House last year. I am sorry that, now it has come, it is not considerably stronger; but I shall support it all the way through.
1319 I should like to ask the Government to think seriously about this amendment. I should like to give the reasons. Let us think back to British Leyland. Look at the trouble there was there about the shop stewards who obviously did not represent the membership of the unions. They obviously did not. Eventually, the management of the company called a ballot and the ballot warmly espoused the company plan by a huge majority— against the advice of the shop stewards and, I presume (although I do not know whether my memory is at fault), against the advice of the trade unions. I am as keen as anybody that we should have effective, responsible and strong trade union leadership. I am one of those who think that the legislation we have had has taken power out of the hands of the leaders of the trade unions. I believe that we have a great many good ones and I have often said so. This was not the case with British Leyland.
I recall that there was a good deal of to-ing and fro-ing. The AUEW approved the dismissal, eventually, of Mr. Robinson. The TGWU tried to call a strike about it and eventually changed their minds; and it is apparent that if there had been a ballot that would have had the effect of settling the matter. They would easily have found 500 members of that company, or of either union, who would have pressed for it and got it and the matter would have been settled with less disruption to production— and that is the important thing; we must have production not disrupted by these constant troubles.
I should like to say to the Labour Party that there is a very sound principle in Left-wing thought: that is, never separate yourselves from the masses. A system of ballots would help the leadership keep in touch with the masses in the unions. It ought to be a good thing and it ought to be welcome to them. I should have thought that it could be recommended on that ground alone. I hope that on both sides of the Committee your Lordships will think again more seriously about this amendment. It does not go very far. It is a very moderate amendment and I believe that it would be useful in the light of the history of the last two years.
Earl DE LA WARR
I should like to ask my noble friend Lord Colville one or two 1320 questions about his amendment. The first is a fundamental question. He has said that he believes that his amendment does not produce a mandatory result. I hope that we shall learn a little more from him about that. It seems to me that it is not, as he said, a question of semantics; it is absolutely mandatory, doubly mandatory— 15 per cent. of the work force make it mandatory on the certification officer to make it mandatory to have a ballot. I am sure that I am being over-simplistic about this, but I can see no shadow of doubt about it.
My noble friend Lord Colville and I have worked together in different circumstances for many years. No doubt he will explain to me kindly why this reasoning is at fault. If I am right that this is mandatory, I shall not detain your Lordships because I have two other matters to raise as to why I oppose it, other than to say that I believe that, in the long run, if the Government make ballots mandatory the effect will be counter-productive and the workers are going to respond in the wrong way and psychologically take offence which they would not take otherwise.
The two other matters are these. My noble friend used in subsection (2) (e) the phrase "or other industrial action ". I know that that was in the amendment on Report in the other place, but it does not appear to me to be a very precise phrase. Knowing how precise my noble friend is, I wonder whether he can help us with that. Does it mean, for instance, an overtime ban or going slow or having what some of us know about, which is an unofficial sickness roster, whereby only three out of five turn up each day? I think that he must be more precise about that phrase if this amendment is to be looked at seriously. Finally, and I think it is a lesser matter, in subsection (6) he refers for the first time to the county court and says that there shall be no other remedy than that. I should be interested to know what he has in mind on that score.
§ Lord UNDERHILL
I am pleased that the noble Lord who has just spoken has picked up some of the points on the amendment. I should like to do that rather than to speak on generalities. Taking up some of the points in the amendment, I should like to ask how the 500 members or the 15 per cent. will actually give the notice 1321 in writing. Do they all have to sign the notice? Do they all have to give their names and addresses? Do they all have to give their union numbers? It is said that I know a little about dissident groups. As has been suggested, this would give opportunities for little groups all over the place. How do we satisfy the certification officer that all this number of members has genuinely decided to make this written request? I cannot find that in the amendment. The certification officer will presumably have a letter saying that 500 members request this. How are we going to satisfy the certification officer that 500 members have made this request? Also, I cannot see clearly in the amendment whether it is the 500 members or the 15 per cent. in one workplace only or whether they can request a ballot of the entire union. That is not clear in the amendment; so that we must ask that question. The noble Viscount, Lord Colville, put forward his amendment in a very dispassionate and clear manner, but he said that this was directed at those unions who do not have strike rules— but it is not in the amendment.
Viscount COLVILLE of CULROSS
The noble Lord will forgive me for intervening. I did not say those that have no strike rules, but those that have no ballot rules.
§ Lord UNDERHILL
That is not in the amendment, either. I am not a lawyer, but my reading of the amendment is that if the certification officer receives this written request he must conduct a ballot, whether the union has ballot rules or not. That is a recipe for trouble; not for industrial order but for disorder. Let us say that at the time he receives this request— which he must carry out; and I agree that it seems to be mandatory— the question that he will decide (and there is no suggestion that' he will consult the union about this question) is very embarrassing to the situation of negotiations that are taking place and that publicity on this matter would be extremely harmful; the certification officer must conduct the ballot. He has no option; he will decide the question. It seems to me that, although there may be good intentions behind the amendment, it is highly dangerous and, far from helping the situation, will make it more inflammatory.
1322 My last point is that it is also proposed, not that union officers will be compelled to conduct the ballot but that an outsider will do so. Those who know anything about workpeople will realise that it will certainly inflame them that somebody else should come in and administer their organisation for them. Not only are they going to be told that they must have a ballot, but somebody else will conduct the ballot for them. For all these reasons, I hope that the amendment will be resisted.
§ 5.50 p.m.
§ Lord ROCHESTER
Those of us who wish to speak must do so as individual Members of this Committee, and I should like briefly to do that on the basis of such industrial experience as I have had. In this matter, it seems to me that the secret ballot will prosper more by way of encouragement than compulsion so there can be no possible grounds for a feeling on the part of trade unions that their leadership is being undermined. I know that the noble Viscount, Lord Colville of Culross, claimed that there was no compulsion about this; but I respectfully suggest to him that in so far as a particular number or proportion of the workforce affected by potential industrial action may express the wish for a ballot, then, as the noble Lord, Lord Underhill, correctly said, ballots there must be, and to that extent the position is surely a mandatory one. I will not say the purpose but certainly an effect of this new clause is understandably to take away power from union leaders in certain circumstances and give it to people on the shop floor.
As I sought to make plain on Second Reading, I am troubled by what seems to me to be the negative attitudes which have been struck recently by certain trade union leaders; but I do not feel— and here I must part company from the noble Lord, Lord Hankey— that it will contribute to the development of the more positive and responsible attitudes that all members of the Committee will wish to see if such leadership as is now being given is— I will not say again "undermined "— certainly threatened, as threatened it will seem to be by many within the trade union movement should this amendment be passed.
It may also be, as a number of Members of the Committee have suggested, that 1323 there are certain technical defects in this amendment. For my part— and I think I speak also for my noble friends— we welcome any comments on that point which the noble Earl may feel able to give.
§ Lord HOUGHTON of SOWERBY
I will not detain the Committee for more than a moment or two. This amendment has been torn to ribbons by my noble friends Lord Wedderburn and Lord Underhill. There are other desperate weaknesses about it which I will not trouble to explain to the Committee, but I say in brief that this amendment would be a prescription for anarchy at the beginning, chaos at the end, with the certification officer driven round the bend, even if he were not driven out of the works. The truth of the matter is that this is just impracticable. I wish some solution to this underlying problem could be found. As the noble Viscount who introduced the amendment said, this problem was not resolved in another place. The truth of the matter is that in legislative terms it is almost insoluble. Bear in mind also that we are dealing with part of our institutional life, which of itself has democratic principles and democratic experience.
We are trying to impose upon the trades union movement a degree of democracy which we fear they do not have and which we think they ought to have. We hope that, as a result of imposed democracy, more sober counsels will prevail in the decisions of the union. Where statutory democracy can be justified, where contentious decisions may have to be taken relating to the policy of the union, one has not the time to carry out this procedure of balloting when the occasion for a strike call has already arisen. This is the problem. The amendment is dealing with the call that has been made as to whether the members shall respond to it. Imagine in those circumstances what would happen if a large section— probably the majority— of the members of the union decided to respond to the call before the 15 per cent. had put their application in or, having done so, before it could be acted upon. There is nothing in the amendment which deals with the situation which would arise if a large number of members in that particular union were already on strike before the ballot had had time to operate.
1324 I want to leave that and come to what I think is the fundamental issue here. Not all is well with democracy in the trades union movement. We know that. We also know that these amendments— and proposals like them— do not arise only from a desire to restrict the power of trades unions. They arise because there is considerable public disquiet about the way the unions are using their power. We must face this. What I regret about the trades union movement at the present moment is how lacking it is in self-analysis. All repositories of power should have some capacity for self-analysis: the way they use it, from where they get it and whether they are justified in all that they do. This is human behaviour to some extent, and when I look round the House of Lords— courteous, well behaved, brought up in a proper manner, distinguishable in many respects from another place where they indulge in a little more vitality and make a little more noise— I wonder sometimes whether we are fit and proper persons to deal with the turbulence of collective activity. We do not understand it, and I do not think we can control it. We sit here calmly trying to prescribe a law which will deal with a volume of human behaviour which is puzzling everybody in the body politic today.
This is what the trade unions should be examining in their own interests at the present time as well as other members of society applying their minds to this problem. I wish that the trade union movement would not think that all criticism is "union bashing "and hostile. It is not. I speak from 10 years' membership of the general council myself and 38 years as a secretary of a national trade union. The only thing that I have never done in my 38 years' experience— and I have done everything trade unionists do— is call people out on strike. It was never necessary to have a ballot in my union as to whether they should respond to a strike call. I feel this problem remains. It is scarcely rewarding enough for us to go on with it very much longer in dealing with this Bill. It has profound implications for the whole of our future. We have to look at it in relation to industrial policy, industrial relations, Government policy— all is involved here.
I say one thing in conclusion. I believe that our trades union movement has a greater responsibility for the welfare and 1325 future of Britain than so far they have shown evidence of acknowledging. That is something that they ought seriously to consider.
§ Lord HARMAR-NICHOLLS
The last part of Lord Houghton's speech was very helpful indeed; and it was based upon some experience. What he did was describe that a vacuum exists and he suggested that it was a dangerous vacuum. I agree with him. I look upon this amendment as an attempt to fill that vacuum with something that is likely to leave us with a better situation than we have at the moment. The part of Lord Houghton's speech which I think was wrong was where he said that the noble Lord, Lord Underhill, had torn this amendment to shreds. The noble Lord, Lord Underhill, did not do that. Indeed, he did not attempt to do that.
Several noble Lords: Lord Wedderburn!
The noble Lord, Lord Underhill, is one of the experts on this and we must listen to him with care because he has something to contribute. The noble Lord, Lord Underhill—
Several noble Lords: Lord Wedderburn!
§ Lord HARMAR-NICHOLLS
The noble Lord, Lord Houghton of Sowerby, said both. He said Lord Wedderburn and then he also said Lord Underhill. I noted it particularly.
§ Lord HARMAR-NICHOLLS
I am simply talking about the speech of the noble Lord, Lord Underhill, at this point because it was made only a few minutes ago and it did not at all fit in with tearing the amendment to shreds. He was using the Committee stage of a Bill going through Parliament absolutely correctly. I heard nothing in what he said which undermined the principle behind what my noble friend is hoping to achieve. Indeed, he said on several occasions that it was well intentioned and that he could well understand the feeling behind it and what flowed from that was that he thought perhaps to some extent something like that would perhaps fill the vacuum which 1326 the noble Lord, Lord Houghton, said existed. What did the noble Lord, Lord Underhill, say? He said "I am not attacking the principle "— at least he did not in that speech: I hope I am not encouraging him to get up and do so now.
A noble Lord: You are!
§ Lord HARMAR-NICHOLLS
I am sorry, but I am talking about the first one and we will take that as the authentic one, I think. What he said was that this is impracticable. He asked: "How are you going to arrive at these 15 per cent.? How are you going to check up whether the 500 really need it? Who is going to decide that and set the ball in train?" Those are very proper questions to direct against an amendment during the Committee stage of a Bill. If we use Parliament correctly we shall use the Committee stage to find out the sort of weaknesses he described so very well, and we still have time at Report stage and later to put those weaknesses right so that the main principle, which has not been questioned by the noble Lord, Lord Underhill, so far, can still be put into operation to fill the vacuum that was so eloquently described by the noble Lord, Lord Houghton.
I hope the way we can approach this amendment is by not necessarily voting on it at this stage. I hope that the Government will take into account the sort of evidence they have had from the noble Lord, Lord Underhill, with his experience of this, to see whether they can find some way of meeting the practical points which he has very properly put in front of us. If at a later stage there is an amendment which embodies the principle, which has not been questioned and which was supported to some extent by the very excellent speech of the noble Lord, Lord Houghton, it may well be that we can remove the practical problems described so graphically by the noble Lord, and still retain the principle which I think is so right.
Therefore, what I urge your Lordships to do at this stage is to have the expert advice that is gathered from all quarters and for it to be taken into account by my noble friends on the Front Bench. I hope that they are not going to be stiff-necked about this and that they will use parliamentary procedures in the way they ought to be used. Whatever is done in 1327 another place has nothing whatever to do with what we honestly believe ought to be done in this place. We are part of Parliament: we have an experience in this Chamber which perhaps they may not have in the other place, although they may have qualities that we cannot hope to have. But I believe that if we use the system as it was intended on this particular amendment, the principle has got enough in it to be pursued further.
I believe that the principle behind the amendment, with the improvements that can arise from the criticisms we have heard, may well be put and that this House can give good service to the union movement— to give them, if you like, encouragement to put their house in order, as the noble Lord, Lord Houghton, said ought to be done. It could well be that we shall be placing on the statute book something that will relieve this country of one of the real obstacles in the way of being able to make use of our skills and industry to re-establish our true position in the world as it was once and as it ought to be now.
§ Lord UNDERHILL
If I may have the indulgence of your Lordships, I should like to make sure that the official record is absolutely clear, because it would be wrong if I remained silent and gave the impression that I was completely in favour of the principle behind this amendment. I am not. I said that my remarks were not to be generalities. I believe the best way to destroy an amendment is to attack the actual wording of it and what is proposed. That is what I attempted to do, but basically I am opposed to the principle. I said it would be a disaster to industrial relations.
§ Lord ORR-EWING
I must confess I thought I was living in Cloud Cuckoo-land when I heard the noble Lords, Lord McCarthy and Lord Wedderburn, describe the trade union movement as providing the best democratic organisation in the country. That is not what the country think. They did not think that after the winter of discontent. They did not think it last May, and in the last Gallup poll I saw on the trade union movement something like 60 per cent. of trade unionists thought it desirable that there should be this Bill in order to set the parameters and to set down, in what I 1328 hope would be more easily-read law, the facts of the situation. Incidentally, 67 per cent. of trade unionists, when asked, said they did not like the closed shop and wanted that to be attended to, too.
Last weekend— if this is this perfect democracy we saw— the Labour Party and the trade unions went into conference to decide their future policy. If I read my newspapers correctly and if they were accurate in their reporting, towards the end of the day the moderates sloped off, leaving behind a few people led by Mr. Wedgwood Benn to propagate the Left-Wing policies. They then cast some votes. I think one chap cast one and a quarter votes. That does not seem to me a very sensible way of winning a democracy. Incidentally, of course, they expressed the belief that they should carry on with nationalisation, and if that is not a dead duck among most of the voters in this country, I should be amazed. Other things also were mentioned, such as the abolition of this House—
§ Lord WEDDERBURN of CHARLTON
The noble Lord makes an interesting point. Is he, in speaking to his amendment now, advocating compulsory ballots within the Labour Party if 500 members or 15 per cent. demand it? There is a distinction, of course, between the Labout Party and the trade union movement.
§ Lord ORR-EWING
I am really drawing attention to the statement the noble Lord has made. He said he thought that democracy in the trade union organisation was among the most perfect in this country. It is not the view which— yes, I have the note here and I took it down carefully, and Hansard will show it tomorrow. I should like also to remind him that the trade union leaders get out of touch with the rank and file. That is quite understandable at district level, area level and national level, just as professors get out of touch with the thinking of trade unionists, as we shall learn before this Bill gets very much further.
Nor do I accept the idea that this is a charter, though I deeply respect anything that the noble Lord, Lord Underhill, says in this area because he is very wise and speaks with a great deal of experience, apart from the fact that he is a very likeable chap! He said this was a recipe 1329 for the dissidents. I think we have to remember that the signatures of 500 people means quite a lot of people to get around to. That is why my noble friend has set it rather on the high side, exceeding the 10 per cent. of company law by making it 15 per cent. In a small works of 200, that is 30 people— still quite a lot of people to find to stand up and say they want a ballot to be taken. I do reflect that we have in some of my works members of the International Socialist Workers' Party. They are not in tens and twenties but in ones and twos. Trotskyists also come in ones and twos but, by God! they are extremely disruptive and very effective. But it is not in numbers like 500 or 15 per cent. that they exist. I reflect on the fact that Lenin said he created his Communist revolution with 2, 000 dedicated Communists— 2, 000 out of the whole population of the USSR. So it is not the large numbers who provide the leadership of the dissident groups within the trade union movement. It is the small, effective, dynamic and hard-working ones.
I would have thought that my noble friend's amendment, which he moved in such carefully chosen terms and such well-argued phrases, would have strengthened the confidence of the local trade union leadership in the local works— "Have I got the lads behind me, or haven't I?" If a local leader gets an endorsement that he has, then he can go on with greater confidence. Is there anything wrong in democracy in consulting those you are trying to lead and offering facilities to which my noble friend's amendment refers? I cannot help reflecting that had poor Mr. Len Murray been more in touch with the thinking of trade unionists, the 14th May fiasco would not have taken place: it was the fact that he had grown so far out of touch. We are seeking, in a quite simple, all-party amendment, to give them the opportunity of keeping in closer touch when there is a sizable minority desiring it. That is all.
I hope that my noble friend Lord Gowrie will not pick on the wording. It is very difficult for Back-Benchers, even those as adept as my noble friend Lord Colville, to phrase an amendment correctly. It is just as difficult, by the way, in the House of Commons. We do not have the resources of the Front 1330 Benches on either side. But I cannot help feeling that the instinct is right. Let us give the opportunity to people in small businesses, as in large, when they are a sizable minority, to ask for a vote. I hope that my noble friend will deal with the amendment in that spirit, and perhaps come forward at Report stage with some thing constructive on his own account, which will make this Bill a better one.
§ 6.11 p.m.
The Earl of GOWRIE
We have had an extremely lively and good debate on this issue. I hope that on one matter the advice of the noble Lord, Lord Houghton of Sowerby, is not taken, and that your Lordships will not resist discussing what he called the turbulence of collective activity, because it seems to me that we discuss it informedly and well. A very clear division exists between the noble Lord, Lord Houghton of Sowerby, and the noble Lord, Lord Wedderburn. I highlight that, not in any sense to embarrass either of them, but because it sheds some genuine light on the difficulties inherent in the debate and indeed, perhaps, in the clause of my noble friend Lord Colville.
The noble Lord, Lord Houghton of Sowerby, said that not all is well with democracy in the trade union movement. He said— I think I am not misrepresenting him— that it is, in some way, lacking in self-analysis. That was certainly not the picture of the trade union movement that came from the speeches of the noble Lord, Lord Wedderburn, or indeed of his noble friend Lord McCarthy. Because the trade union movement is so important, and because modern industrial society is so interwoven, there is no such thing as somebody who can be indifferent to union democracy, or not have a view about it or not, in some way, be affected by it. Therefore, of course, we are right to debate it. We are in no sense cheeky (I think that was the word used by the noble Lord, Lord Wedderburn) to do so— I should have said the noble Lord, Lord McCarthy. I must not treat them as coterminous. It was the noble Lord, Lord McCarthy, who used the word "cheeky ".
I do not agree that my noble friend's amendment was torn to ribbons— far from it— and, though I have considerable 1331 misgivings and anxieties about it, I should like at the beginning to emphasise the broad common grounds that exist betweeen my noble friend and me on this matter. Of course, the Government strongly favour secret ballots within the trade union movement. We have made that quite clear throughout the proceedings on this Bill in Parliament, and also this afternoon in the previous debate. We intend to provide public funds for postal ballots for union elections and for other important issues. There is a widespread public view that unions make insufficient efforts in this area, and when I say "a widespread public view" I include all tests of opinion within the trade union movement itself, and not merely outside the movement.
We are all anxious that strikes and other industrial action should not begin without clear evidence that those concerned have freely decided to take such actions. The last Government showed their concern on this issue, as indeed the TUC did in its guide, during the period of office of the last Government, on the Conduct of Industrial Disputes. In the joint statement by the then Government and the TUC in February last year, the Government endorsed the TUC's,strong recommendation that union rules should provide for strike ballots to be held at the discretion of the union ".Our hope is that unions will increasingly take up that advice, and that strike ballots will increasingly be held when strike action is proposed.
But the need for secret ballots is not limited, as many noble Lords have said, to the area of proposed industrial action alone. We place great emphasis on the need for secret ballots for the election of officers at national level. Of course, this will not always lead to moderate, responsible or favourable union leadership to one Government or another. We are not so naive as to believe that. But we do believe that strong and moderate union leaders, supported by the broad base of their members, can best come to the fore through the secret ballot and that, in the long run, this is the most effective way for the union movement itself to allay some of the public anxiety and disquiet, including disquiet among its own members which the noble Lord, Lord Houghton 1332 of Sowerby, eloquently brought to your Lordships' attention.
Of course, as I have said, you do not always get the results that you want' You do not always get the results that you want at a general election, as noble Lords on both sides of the House know very well. But we do not sneer at ballots, as I think the noble Lord, Lord Wedder-burn, has done from time to time, simply because they do not always turn out to provide the results that you want. Like my right honourable friend the Chief Secretary of the Treasury said in respect of tax cuts, it was not so much their incentive effects that he approved of. He thought they were good in themselves, and I certainly agree with that.
§ Lord WEDDERBURN of CHARLTON
Perhaps I misphrased what I said, and the noble Earl is unable to understand the point. Ballots are not to be sneered at. Ballots are a good method of testing the opinion of members when a union wants to use them, and in the way that a union decides to use them. There are faults in union democracy— we said so— but what the noble Earl has not explained, and perhaps he will now explain it since he is favouring this clause so much, is exactly what industrial problems will be solved by enforcing ballots upon the unions, as this clause wants to do.
The Earl of GOWRIE
The noble Lord must not anticipate me in what I am going to come to in respect of the clause itself. I do not think it is an unfair representation of the general tenor of his remarks about ballots so far, to say that he was— let me amend the word "sneering "— expressing very conspicuous scepticism about their virtues.
Thereare encouraging signs that a change in attitudes is coming about, that the movement towards secret balloting is growing and that militant and irresponsible union leaders can less easily dragoon members into taking action in which they have had no say. I would say to the noble Lord, Lord Hankey, that I agree with him that there are signs that that tendency is coming to the fore. His noble friend on the Cross-Benches, the noble Lord, Lord George-Brown, wrote an eloquent article in, I think, last Sunday's Sunday 1333 Express, to that effect and advised the Government to ride with this movement rather than, as it were, to seek to interfere with it or to resist it. That we are certainly determined to do.
We need to stimulate and give further momentum to this encouraging trend. We want our actions to flow from our understanding of the delicacy of the process, and of how easily that process may be upset and thwarted. In what I am coming to say in the next few moments to my noble friend Lord Colville, I hope he will take it from me that we are being sensitive towards the delicacy of a trend which we think is there, and which must be encouraged if our industrial society is to improve.
We feel that the danger in proceeding down the road advocated by my noble friend is that it might harm the chances of the ultimate success of our approach of encouraging voluntary action in this arena. No one could seriously accuse us, in introducing the Clause 1 scheme which we debated earlier, or in putting a new obligation on employers to provide premises for ballots when requested by unions, of unwarrantedly interfering in internal trade union affairs.
But because of this, it has been easier for those in the union movement who want to make use of the Government scheme, to put a case which cannot be emotively repudiated by their colleagues. That is all part of riding with this new spirit that we find abroad, which I think is so important. The full benefits will not be felt overnight. Experience shows us that instant panaceas in industrial relations are not available, but I do believe that this will give strong support to progressive and democratic trends over the full range of major issues which crop up in the movement.
I should like to say to my noble friend Lord Colville that it is not quite so much the issue of compulsion which bothers me, though I do think that in practice his provisions would be taken to be compulsive. What bothers me is that his provisions would arm those in the union movement who are against what we are trying to achieve. They would be presented with an argument loaded with emotional appeal which goes back, as we well know, to the days of 1971 and which 1334 can be expressed roughly as follows: "Here we go again, back to 1971 and the Industrial Relations Act. The Government are meddling again in our internal affairs and we must struggle against any attempt to shackle trade union activists ".
The interesting thing is that the noble Lord, Lord Wedderburn, is seeking, through this House and elsewhere, to try to persuade a sceptical, in respect of his advice, trade union movement that that is exactly what this Employment Bill is seeking to do. But he is not getting very far, in my opinion and with respect to him, in this campaign. I simply fear that there would be considerable shot given to his locker and to those of his colleagues who feel the way that he does, if we proceeded down the road that my noble friend is suggesting.
We in this Bill as a whole, and on secret ballots in particular, have tried to adopt what I think even our political opponents and supporters acknowledge to be a balanced approach. In industry this is vital if we are going to translate what we do in legislation into practical and pragmatic, tolerant and flexible behaviour on the shop floor itself. We must not alienate moderate opinion on the shop floor, which is with us at the moment on this issue, or give it impossible odds to overcome. I think it is right to add at this point that in the context of secret ballots Parliament cannot by itself give moderate unionists a voice. Some onus must rest upon them— upon the lazy, as I think the noble Lord, Lord Houghton of Sowerby, said— to ensure that their unions are organised and operated as they would wish.
May I turn quickly to the details of the amendment standing in the names of my noble friends and in the name of the noble Lord, Lord Spens, on the Cross-Benches. They followed in the steps, as my noble friend Lord Colville acknowledged, of Members of another place in proposing that the Bill be amended to provide for mandatory secret ballots. Five such new clauses, with wide differences of principle, emphasis and effect, were put down in another place, and each was rejected on the advice of my right honourable friend the Secretary of State. The proposal we are considering today is a further variant, and clearly my noble friends have sought to deal with defects which 1335 they very fairly recognised were inherent in the other clauses in another place. I think that the variety of proposals we have had illustrates the great complexity and sensitivity of the subject. I wish I could say that my noble friend's proposal resolves all the difficulties, but alas! I do not think this is the case. It does skirt some problems, but in doing so it runs into others.
I do not wish to lay any emphasis upon any drafting deficiencies of the new clause. Just a few moments ago I myself moved an amendment amounting to a page and a half which gave effect to a thoroughly simple proposal. I think it was my noble friend Lord Orr-Ewing who said that Back-Benchers have difficulty over the drafting of clauses. So, my Lords, do Front Benchers! It is an extremely difficult and sensitive issue. My noble friend Lord Colville is a very experienced lawyer, and though there are drafting deficiencies it would not be beyond his wit or mine— or, perhaps I should say, my advisers— to amend them. Nevertheless, what I want to emphasise is not any technical deficiencies in his amendment but deficiencies and weaknesses within the idea of the clause itself.
First, it does not, as my noble friend acknowledged very fairly, deal with unofficial strike action, and that is the most prevalent form of industrial action in Britain. By not doing so, it effectively gives a status and a premium to unofficial action which we would wish to see denied to unofficial action. And that, we find, is a singularly unfortunate effect.
Secondly, and related to the first point, the clause could quite well unintentionally give strength to the militants and undermine responsible union leadership. I have touched on this point before, but in the debate it was made most clearly and eloquently by my noble friend Lord Alport. I hope that any of my noble friends who were rather wavering in their views about this Bill will look tomorrow at what my noble friend said. The leadership would be presented as being hamstrung by the need to hold a ballot, and by the risk that a ballot would be triggered at an inconvenient point in negotiations. It would be argued that to act through official procedures might in the end result in union funds being put at risk, indirectly 1336 if not directly. Indeed, union leaders themselves might well judge it sensible and expedient not to give a strong lead and to let unofficial militants in certain situations make the running.
Thirdly, there is the difficult position of the independent certification officer. I do not want to rehearse all these points and difficulties for him because I had something to say about them on the previous amendment and because, though I hesitate to call him in aid in this excited and highly charged atmosphere, the noble Lord, Lord Underhill, made very sensible points about the difficulties which the certification officer would face. We are determined not to forget the practical realities and difficulties of the job which we would be giving him or any other body charged to conduct the ballot.
I am glad that, unlike his noble friend Lord Wedderburn, the noble Lord, Lord Underhill, to whom I have paid some tribute, did see good intentions, as I certainly do, in my noble friend's amendments rather than malign ones, but I think that this would be a very difficult and impractical way of proceeding. It is a bad habit to quote oneself. Nevertheless, in the interests of time I would refer your Lordships to something that I said at Second Reading which underscores this difficulty. In col. 741 of the Second Reading debate I said:In the second place, ballots inevitably involve procedural matters and delay. A strike ballot held at the wrong time due to an inflexible statutory provision could strengthen and prolong a strike against the wishes of both the union and the employer. It would assist militants who want to see an early strike, at a time of maximum solidarity of feeling, as against moderate leaders who might still have hopes of a reasonable settlement being reached. [Official Report; 20/5/80.]I take my noble friend's point that there is initially a voluntary element in his amendment but it would soon gell into compulsion, sanctions and all the rest that would be involved.
May I say lastly to my noble friends that I take no pleasure at all in drawing attention to the fundamental difficulties which I see in this clause and in their ballot proposals generally. If it were possible to introduce more effective union democracy by statute in this area, in a way which does not present a gift to the militants, I of course would be for it. If it were possible, and if it did not discourage 1337 the use of official procedures, it would look very attractive. If it could be done in a simple, practical way without fatally wounding our approach of riding with the new spirit and the new interest in democracy in the union movement, we would of course embrace it. But I cannot see, in spite of the lifeline thrown to me by my noble friend Lord Harmar-Nicholls, how the broad objectives of the Bill and the broad objectives of my right honourable friend the Secretary of State's approach could be achieved by going down the road of my noble friend. I do not see how they could be achieved, therefore, if we adopted a requirement for union ballots as he has presently proposed in this clause.
§ 6.30 p.m.
Viscount COLVILLE of CULROSS
I do not think I shall be the most popular member of the Committee if I attempt to answer all the points that were made. I would just say this to the noble Lord, Lord Underhill, and to my noble friend Lord De La Warr: I think I could quite quickly darn the ribbons which they seem to have detected but, if they are interested, I shall reserve the pleasure of doing so until I can do it in private afterwards. For instance, the question raised by my noble friend of there being no other remedy in the county court was simply an attempt to avoid a breach of statutory duty which would get the trade union into court in tort in another fashion from that from which it is normally immune.
We really have had a debate which I hope has cleared a number of different problems that relate to this subject. I am genuinely grateful to those who have taken part in it and the advice that I am going to give to my co-sponsors— and I hope other noble Lords will agree, — is that we should certainly not pursue the matter this evening. There are two reasons for this, and they relate to the two roads down which noble Lords respectively have been travelling. The noble Lord, Lord Wedderburn of Charlton, tried to pretend that this debate was leading those who sit on this side of the Committee down exactly that road that my noble friend Lord Gowrie described so lucidly a moment ago. I wholly deny that this amendment was in any sense an attempt to induce those who sit on this side of the Committee— or anywhere else— to go down a road which 1338 would enable the noble Lord, Lord Wedderburn, to generate the sort of suspicions and underlying motives which he attributed to me and others who agree with me. If there was any question of my pressing the amendment and thereby incurring the accusation that I was pursuing that course, that in itself would be quite sufficient to make me suggest that the matter should not be pursued this evening. But there is a much more constructive atmosphere in the debate, as I detected it.
My noble friend Lord Gowrie spoke of a trend towards moderation. Perhaps if I have done one thing of real service to your Lordships it was to give the noble Lord, Lord Houghton of Sowerby, an opportunity to make the speech he did— a speech which, if I may say so, seemed to me to echo almost exactly the trend to which my noble friend Lord Gowrie was referring. That is the trend which seems to me to be infinitely preferable. I shall never agree with the noble Lord, Lord Wedderburn, that the law cannot improve the position about trade union law and that it is perfect as it is after he finished with it— or that is how I read his Second Reading speech. However, there may be circumstances— and I must bow to the noble Lord, Lord Houghton, on this— where it is very difficult for the law to do so. It certainly seems to me that those who wish to pursue this in a legislative field have a great deal upon their plate this evening which they should digest and, as my noble friend Lord Orr-Ewing said, I suggest that we might leave this matter. If your Lordships will agree, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 [Issue by Secretary of State of Codes of Practice]:
§ 6.33 p.m.
Lord MCCARTHY moved Amendment No. 4:
Page 2, line 44, after first ("of") insert ("extending collective bargaining and ").
§ The noble Lord said: This might be said to be one of our clarificatory declaratory amendments, and therefore I hope that the Committee will receive it in a mild, unsneering and cheery way. What we are really arguing here is that we feel that Clause 2 containing the 1339 provisions for the new Code of Practice would be more reassuring and more acceptable if the Government could see their way to introduce in to Clause 2 (1) the phrase in our amendment "extending collective bargaining ".
§ We would argue this for two main reasons: the first reason is that the intention of the clause is to authorise the Secretary of State to issue codes of practice and, if we are to go on what has been said in another place, those codes of practice will contain regulations concerning picketing and the closed shop, and of course codes of practice concerned with picketing and the closed shop undoubtedly are going to affect collective bargaining.
§ More importantly, if we look at Clause 2 (7), it is clear that the Secretary of State is given the power in that subsection to issue codes of practice in whole or in part which may supersede codes previously issued by the Advisory Conciliation and Arbitration Service. Therefore we are entitled to look at the codes which have so far been issued by ACAS.
§ We find that each one of these three codes concerns collective bargaining. The Code of Practice No. 1, Disciplinary Practice Procedures in Employment, specifies how disciplinary procedures should look, says that trade union officials should be involved in these procedures and provides in particular in paragraph 15 for a special way of dealing with disciplinary action against a trade union official. So we would say that Code of Practice No. 1 undoubtedly affects collective bargaining.
§ It is even more clear, I should have thought, that the ACAS Code of Practice No. 2, Disclosure of Information to Trade Unions for Collective Bargaining Purposes, must affect collective bargaining. Indeed this is the code of practice which spells out the rights of trade unions under present legislation for disclosure of information. Similarly, Code of Practice No. 3. Time Off for Trade Union Duties and Activities, very clearly affects collective bargaining.
§ So here we have provisions in the Bill for the Secretary of State to issue codes of practice over a wide range of issues which in themselves are already likely to affect collective bargaining and the extension and 1340 practice of collective bargaining, but more particularly are able to cancel out and totally wash away the provisions of established codes of practice issued by ACAS. We should have thought that it would assist in that respect if the Bill made it quite clear that there was no desire to turn away from the twin responsibilities of ACAS for improving industrial relations and developing collective bargaining.
§ It may be said, and indeed it has been said in another place, that similar proposals to these— similar provisions to those that we find in the clause— were included in Section 6 of the 1975 Act in respect of ACAS itself. So, where ACAS issues its codes, it does so under a provision which is virtually the same, word for word, as the provisions of Clause 2 (1). Against that we would argue two things. The first is that ACAS at the present time, before the passage of this Bill, has a particular provision for extending collective bargaining as a result of Sections 11 to 16 of the 1975 Act-that is to say, the recognition provisions— and it is the proposal of the Government that the clause is included in this Bill to repeal Sections 11 to 16 of the 1975 Act.
Moreover the general provisions of the 1975 Act make it quite clear that ACAS shall be charged with a responsibility for collective bargaining which is in many ways similar to the kind of general statement, if we may refer at this stage to the 1971 Act, in the provisions of the 1971 Act itself. I am quoting now from Section I of the 1971 Act, which says that:
The provisions of this Act shall have effect for the purpose of promoting good industrial relations in accordance with the following general principles, that is to say, —
§ We are not saying that those are better words than ours. We are not sticking, as other members of the Committee have said tonight, on our words: what we are saying is that it would be of assistance and it would be only fair following statements which have been made so far in another place if the Government could agree on this modest amendment to place collective bargaining inside the specifications about codes of practice. I beg to move.1341
§ 6.40 p.m.
§ Lord MACKAY of CLASHFERN
It is true, as the noble Lord, Lord McCarthy, has pointed out, that Section 1 of the 1975 Act did include in ACAS's terms of reference the duty in particular of encouraging the extension of collective bargaining and the development and, where necessary, reform of collective bargaining machinery. It is perhaps all the more striking, against that background, that when we come to Section 6, the power to issue codes, that the power was in almost exactly the same terms as we are proposing here. Indeed, he has illustrated very clearly that ACAS, in issuing codes under that power, have dealt with aspects of collective bargaining. So the power in our Clause 2 will by no means prevent the Secretary of State from referring to collective bargaining.
But in general, while the Government recognise the value of orderly collective bargaining, they do not believe that improved industrial relations will always depend on its extension, or even that its extension is necessarily always good for industrial relations. It is an important principle to be kept in mind but it is only one factor to be kept in mind. Surely it is much better that the leading principle of the code should be the principle we have set out; namely, for the purpose of promoting improvement in industrial relations. The difficulty of joining collective bargaining as a separate principle has been illustrated in a number of cases; I will not trouble your Lordships with them. I think it is fairly plain that the correct and leading principle should be improvement of industrial relations, and it is on that that we take our stand. I would invite your Lordships not to agree to this amendment.
§ Lord HOUGHTON of SOWERBY
Perhaps the question I am about to ask can be answered later if it is not relevant to this particular point in time, but why are we discussing this clause at all? There are several amendments to it and the first of those is under consideration now. But there is a code of practice already there; this clause authorises the Secretary of State to issue another draft, and to indicate, under subsection (7), what parts of it are already in the code, which are new and so on. Then the most astonishing thing of all is that in 1342 Clause 18 (a), in a line and a bit, the notorious code relating to freedom of the press is quietly buried. Do not we all recall the hours and hours we spent, with the assistance of the noble Lord, Lord Goodman, in finding the answer to the problem of industrial relations in Fleet Street, the freedom of the press and editorial discretion and responsibility? All that is buried in one line and a bit at the end of this Bill. Yet here we have a whole clause, Clause 2, which really traverses the ground which is already there, and things are growing on it; there is a code already growing on this ground. Why do we have to bother with all this? It seems to me to be only repetition of what we have gone over before.
This started in the 1971 Industrial Relations Act. That part of it was embodied in the Labour Government's subsequent legislation, and has been kept there all the time, and it is still there. I do not understand why we are considering a whole new clause going over the same ground we have been over twice before.
§ Lord MACKAY of CLASHFERN
I do not think I have yet seen the code promulgated under the section being repealed by Clause 18 (a), but others may have the advantage of me in that. So far as this clause is concerned, the intention is to give power to the Secretary of State to issue a code of practice. Industrial relations are developing things and it seems right that he should have power to issue codes as may be required from time to time in parallel with ACAS. I would, therefore, submit to yout Lordships that this is a very desirable clause, and that the amendment which has been proposed to it should not be approved.
§ Lord MCCARTHY
I do not want to press this amendment to a Division, but I simply say this. Perhaps the noble Lord could tell us a little more about his intentions when we come to the Question, That the clause should stand part. To answer the noble Lord, Lord Houghton, the reason why we have the whole of this clause is because the Secretary of State knows only too well that ACAS as presently constituted will not issue the kind of codes which the Government want issued on picketing and the closed shop. Therefore, somebody else has to have the job, and the job is given to the Secretary of State.
1343 My question, which I hope the noble Lord will answer in his speech on whether the clause shall stand part, is, what is the status of the three codes of practice already issued by ACAS? This is our concern, and it is the reason for the amendment. The power exists under this clause for the Secretary of State to cancel those codes. Indeed, curiously enough— and I shall be coming to this on clause stand part— there is power for ACAS to cancel the codes of the Secretary of State. But let us leave that. The power exists to cancel the existing codes. My question is, what is wrong with the ACAS codes thus far published'? Will the Government give an undertaking that they have no intention of cancelling any of them? On that, I will withdraw the amendment. I am saying that if the Minister could very kindly answer this question on the debate that the clause stand part, I am at this moment withdrawing this amendment.
§ Amendment, by leave, withdrawn.
§ 6.46 p.m.
§ The Earl of GOWRIE moved Amendment No. 5:
Page 3, leave out lines 1 to 4 and insert—
("(2) The Secretary of State shall after consultation with the Advisory, Conciliation and Arbitration Service (whether carried out before or after the passing of this Act) prepare and publish a draft of any Code of Practice that he proposes to issue under this section ").
§ The noble Earl said: The effect of this amendment is to enable consultation by the Secretary of State with ACAS, conducted before the passing of the Act, about the Government's proposal to issue a code of practice, to count for the purposes of the statutory consultation required by Clause 2 (2) of the Bill. This amendment is in effect minor, and I will be very brief in explaining its purpose. Clause 2 (2) requires the Secretary of State, where he proposes to issue a code of practice, to consult ACAS before preparing and publishing a draft of the code.
§ I am sure there is agreement on all sides of the Committee that this is a desirable preliminary before firm steps are taken to produce a code. Even if there were no statutory provision to this effect the Secretary of State would of course be anxious to consult ACAS before proceeding. As noble Lords will know, my 1344 right honourable friend has already announced the Government's intention to produce a code of practice on the closed shop, and, in the absence of satisfactory voluntary guidance, also on picketing. These are not codes which I envisage ACAS would wish to produce, or which, given the questions of public policy concerned, it would be right to ask ACAS to produce. It is clearly desirable that the Secretary of State makes all reasonable speed in proceeding to issue a draft code. It is important that these should be in place as quickly as possible after the passing of the Act. We need to provide guidance on good practice without delay.
§ The Bill as presently drafted would cause doubt as to whether consultation by the Secretary of State with ACAS before the passage of the Bill into law would qualify as consultation within the meaning of the Bill. Yet if statutory consultation with ACAS has to wait until after Royal Assent valuable time will be lost, especially since the holiday period will slow up ACAS's response. The amendment is, therefore, designed to overcome this timing difficulty. Its effect is wholly administrative, and I commend it to the Committee.
§ Lord DAVIES of LEEK: May I ask the noble Earl a question? Will the Central Arbitration Committee— which is a permanent arbitration body established under Section 10 of the Employment Protection Act 1977, and is independent of ACAS and the Department of Employment— be brought in in circumstances that are difficult: to use the term used not very long ago, mediation as a step towards understanding. I presume this clause would make no difference to the position as it is now so far as the Central Arbitration Committee's powers exist?
§ 6.50 p.m.
Lord WEDDERBURN of CHARLTON moved amendment No. 6:
Page 3, line 37, at beginning insert ("Subject to subsection (9) below, ").
§ The noble Lord said: I beg to move Amendment No. 6. This amendment takes us to an important matter in the 1345 Bill; namely, the effect of the Bill in the area of the criminal law. I hope that the noble Earl will not think that in moving it I am advancing some mythical campaign which he seems to think that I am carrying on. I am trying to examine the provisions of the Government's Bill and the problems.
§ There is a very big problem in relation to the criminal law. I must ask the Committee's leave to speak to Amendment No. 9 because that, of course, is consequential upon this amendment. Moreover, with the leave of the Committee, I shall also speak to Amendments Nos. 7 and 8 which I shall not move separately. However, that means that the territory is somewhat wide and of great importance. We know that the codes of practice which are to be issued will include a code on picketing, and indeed from the amendment which has just been introduced by the Government there may already be consultation because they are obviously very anxious to get their codes out into the light of day.
It was said by the right honourable gentleman the Secretary of State in the Second Reading of this Bill in another place, on 17th December, at column 67 of the Official Report:
The Bill does not create any additional burden on the police because it does not create any new criminal offence. We are proposing simply to restore the right to take civil proceedings where secondary picketing induces a breach of contract".
§ When we come to Clause 15 it is our intention to examine the Bill very carefully against that statement of objective and, at present, as we have shown from the amendments that we have put down, we think that the Government's objective of not affecting the criminal law is not achieved by the Bill at that point.
§ However, equally important to the question whether Clause 15, which severely limits the rights of workers to picket, affects the criminal law, is the question whether there is a likelihood or possibility of the code of practice applying to criminal proceedings in such a way as in reality to affect the application, administration and ambit of the criminal law. One of the major new features of Clause 2 compared with previous legislation is, of course, to be found in subsection (8) where a failure on the part of any person to observe the provision of a code of practice is not to 1346 render him liable, but shall be admissible in evidence and will be relevant then to any question arising in a court, tribunal or the Central Arbitration Committee. It is the word "court", of course, which introduces the novelty, because in the previous legislation in the Employment Protection Act 1975, Section 6 (11), the code is admissible in the industrial tribunals in proceedings before the Central Arbitration Committee and ACAS. So, once it is admissible before the courts, which it plainly is said to be— both civil and criminal, for no distinction is made— then it is to be taken into account in interpreting the criminal law.
§ It is, of course, important that the code, as has been pointed out by my noble friends already under this clause, will not be a code issued by ACAS, but by the Secretary of State, albeit that it has to achieve a parliamentary approval under subsection (4). It is true, of course, that the court in civil proceedings at least, and to some extent in criminal proceedings, can in any event take account of matters of this kind. But subsection (8) makes it admissible in evidence under the Bill, and therefore introduces the novelty in the criminal proceedings in criminal courts.
§ It may be said that that will not have very much effect except to clarify matters. It is as regards the central question of clarifying the law that my contention, and the contention of my noble friends, is that the clarification of the criminal law will lead to changes in its effect and administration, and that this amendment is therefore required if the Government's intention is to be achieved.
§ There are two essential facts about the criminal law and picketing which it is necessary to establish in order to take the argument for this amendment further. First, it has been made quite clear by the chief constables who gave evidence to the Select Committee in another place that the existing criminal law is quite adequate to deal with malpractice of a criminal kind on the picket line. Indeed, I would say, as I said on Second Reading, that that evidence as a whole to the Select Committee of another place also makes it clear and confirms the fact that picketing in Britain is very largely very peaceful, and what one of the chief constables called the "jaundiced view", which is sometimes presented to the public, is not at all the 1347 "norm", as he put it, of picketing in this country as it is in some other countries where picketing is far more violent than it is here.
§ Nevertheless, the fact that offences occur on the picket line is, of course, undeniable. They occur in all walks of life, but the chief constables were clear that the existing criminal law is adequate to deal with the matter. At paragraph 49 of the evidence to the Select Committee the Chief Constable of South Yorkshire was asked whether the existing laws on picketing gave the police adequate power to maintain order, and the answer was, "Yes ". Of course, these offences cover a very wide area. I shall not give any0thing like a comprehensive list but shall merely mention some of them: the crimes of riot; affray; unlawful assembly, of which some of the Shrewsbury pickets were convicted; various forms of violence; assault; threat of force; breach of the peace; threatening words or behaviour; offences under Section 7 of the Conspiracy and Protection of Property Act 1875, including watching and besetting; persistent following under the same section; wilful obstruction of the highway; and obstructing the police in the execution of their duty. Those are the offences which can usually be relevant, but of course others may arise.
§ It is very easy for a picket to be made liable within the confines of those somewhat obscure criminal provisions. I shall return to their obscurity in a moment. The famous prosecution, which was upheld on appeal in 1960, was that in a case where there were three pickets on the back gate of a small firm and a policeman came up and said, "Two is enough. One of you move on ", whereupon the Law Report reveals that the third picket said, "I know my rights ", and gently pushed past the constable, whereupon he was gently arrested. The conviction was upheld because he was obstructing the police in the execution of their duty, there being some grounds— and reasonable grounds— on which the policeman thought three pickets were too many to avoid obstruction or future offences. So the existing criminal law is very wide and the evidence of the chief constables themselves is that it is adequate to deal with existing conditions.1348
§ The second essential fact is that, because of the width and to some extent the grey areas of the criminal law regarding these offences, picketing in this country takes place very largely at the discretion of the police. Very often there are technical obstructions, and when we come to Clause 15 it will be a matter of concern to discuss how far the existing law relating to picketing under the Trade Union and Labour Relations Act actually gives an excuse or justification for a technical obstruction. But frequently there are obstructions which are at least sufficient to amount to wilful obstruction of the highway, even for a brief few minutes, or civil nuisance, but the police do not prosecute any more than the employer sues for an injunction as regards the nuisance
The balance of law enforcement— of keeping order and of sensibly managing the community in which the local police force work— is something at which the British police are experienced. As the South Wales chief constable put it at page 42 of the evidence to the Select Committee of another place:
On many occasions the police negotiate with responsible members of unions as to what might be the number of pickets to fulfil a particular role. On many occasions they abide by that because they want to be helpful and not go outside the law; and above all they have limited numbers when they work out 24-hour coverage ".
Then later on, having discussed the way in which such negotiations occur, he says:
Merely to come to a stricter enforcement situation can create enormous difficulties unless the real need is there. When you have arrested 44 people, what do you do? Arresting 44 people takes a lot of policemen especially when people realise they will be arrested and have decided not to leave. If they decide to be difficult what do the courts do? Are they going to come back to the scene and make the situation much worse? It is a matter of judgment and in my mind the judgment works fine".
§ The evidence of the other chief constables was not materially different.
In that light the desire to make it plain that neither in Clause 15 nor by way of a code shall this Bill affect the criminal law, becomes a real and pressing problem. It is true that the issue of clarifying the criminal law in relation to picketing was discussed by the chief constables in evidence to the same Select Committee and, if I may use the phrase used by the
Chief Commissioner of the Metropolitan area, Sir David McNee, he said:
Clarification would be difficult but not impossible".
§ I accept that as being a correct estimate— difficult but not impossible.
However, the working paper on picketing which preceded the Bill suggested that the purpose of the code would be to make the enforcement of the criminal law on picketing give rise to a more consistent interpretation of the law by the police and the magistrates. When we come to the Attorney-General's statement in another place in the Standing Committee on the Bill on 18th March, at column 1352 he said:
May I now deal with the effect of the forthcoming code of practice on picketing and the role and powers of the police, again in general terms, because it has not been finally fixed. It is a matter which has caused anxiety. The code has not been drawn up and the responsibility for what is in it lies not with me but with my right honourable friend the Secretary of State. Therefore, I cannot deal with it in detail ".
A little later on he says:
It will be of assistance to the police to the extent that it indicates the scope of peaceful picketing, although it cannot change the law on picketing. Another important object will be to provide guidance to those who organise picketing so that they may ensure that they keep within the law ".
§ I may say that the TUC guides already give a considerable guidance to pickets, but I shall not draw any parallel between the TUC guides and this sort of code, and I hope that none will be drawn, because a voluntary code issued by the TUC is a different animal; indeed, it is in a completely different area altogether from this kind of statutory arrangement. But the Attorney-General's estimate of what the code will do is clear in that passage.
§ When one turns to the practicalities of it, what will it do? Will it give some indication of how many pickets ought to be at a particular kind of place of work? That would be very difficult to estimate. Will it talk to the police about their discretion whether or not to prosecute and arrest, in that matter of judgment which the Chief Constable of South Wales put so well? It has been said that the police will have to take the names and addresses of people who are picketing, otherwise than at their own place of work. That has been denied both in another 1350 place and by the police chief constables themselves. The police have made it clear that they will not take names and addresses in aid of the civil action which the Government envisage employers and others bringing against pickets who will no longer be licensed to picket under the new restrictions of Clause 15.
§ In the same debate in the House of Commons on 18th March the Attorney-General agreed that names and addresses would not be taken for that purpose. But, of course, if there is an obstruction the police will take the name and address of anyone against whom they wish to enforce the law. Will the code tell the police, "You must not ask him whether he works here?" I very much doubt it. If the code does not, what will it say? Will it tell the police that they have to tread this extraordinary line between not asking for a picket's name and address if they suspect that he does not work there, but doing so if there is an obstruction and then not passing it on?
§ What about the new controls over trade union officials in the new subsection (4) of Clause 15, which now limits the licensed trade union official picket to someone who represents the members involved in the very restricted definition of the new subsection (4)? It may be, as was done in another place, that the Government make a resemblance between their codes and the Road Traffic Act Highway Code, which, like this code, could be relied upon in proceedings as evidence to establish or negative a liability. But in doing so in the criminal area, surely the code will have to indicate the meaning of various of the crimes, which I have rehearsed as the list, which are relevant to picketing. If it does not, the picket who is arrested and then charged with unlawful assembly will say, "Unlawful assembly?— that is not in the code". Or, if he is charged with affray, which few will be but some have been, although they were acquitted, he will ask, "Where do I find affray in the code? "In other words, in order to clarify, the code must first cover the area, otherwise it is unfair to the pickets unless we keep the criminal law out.
§ Then again, with wilful obstruction of the highway there is great doubt about the extent of Section 15 of the Trade Union and Labour Relations Act 1974, and the sections which preceded it which, in effect, 1351 have been the same since 1906. It has been a matter of doubt and remains a matter of doubt and argument between two different views— perhaps the noble Earl has one too— about whether or not merely to attend creates an obstruction which goes beyond the legalised area of picketing attendance for the purpose of persuading people not to work.
§ When we come to Clause 15 I shall wish to refer to the judgments of the noble and learned Lords, Lord Reid and Lord Salmon in the leading case of Hunt v. Broome in 1974 in the Industrial Cases Reports, because they set out so very clearly the area where one might have doubt. It is arguable that the existing immunity protects against a slender area of criminal liability. I think that I would take that view. It is arguable that there is, in effect, no right to picket because every picket is technically a nuisance. I, personally, would not now adopt that view. But the code presumably will resolve that issue.
§ If it is to clarify the law, the code must resolve an issue left open by two of the noble and learned law Lords in the House of Lords and, with great respect to the Secretary of State, my contention would be that he is not the right person to do that via a code of practice, albeit that it comes through both Houses. Either that should be done by judicial interpretation or— as I would prefer— by a statutory amendment. If that is true of obstruction of the highway under the Highways Act, it is even more true of watching or besetting. I invite whoever is to reply for the Government to say what their advice or their view is on what the code will say about watching and besetting, which is unlawful under Section 7 of the Conspiracy and Protection of Property Act 1875. One of the leading authorities is still The King v. Wall in 1907 at the Irish Assizes, where Chief Baron Palles said that watching involves persistent watching. Will, in fact, the code clarify the difficult area of whether a temporary or a persistent watching is or is not unlawful? If it does not, what will it say about watching or besetting?
§ Noble Lords on the Front Bench opposite are, I think, disturbed about the time. I understand the problem, but I wish to make the case I am putting, and 1352 since, so I understand, we are to adjourn at 7.15 for dinner for three-quarters of an hour, I will, if I may, make what I feel is a very important case for excluding the criminal law from the area of codes. If the code is to clarify the criminal law, the code will have to take it on its back to write a textbook of clarification on hundreds of issues in the area of obstruction, watching, besetting and so on. This is not a debating point. There are areas where the code could be helpful in terms of practice and, for example, say, "Have a reasonable number of people there and you are less likely to commit a criminal offence. "If that is all the code is going to do, very well, and you might as well exclude it from the area of the criminal courts because it will not be of any use to anyone in evidence anyway. If it is going to do that, which would not enter the area I have described, it will be no use in the criminal courts.
§ If it is going to do something which will be of importance in the criminal courts, then my submission is that it is not the right instrument to use for such a job, because the job is very great. The areas of doubt regarding certain crimes are very great indeed, for the very simple-reason that the police rarely use them in relation to picketing. The police rarely use watching or besetting; there has not been such a case, so far as I can discover, for very many years. They sometimes use wilful obstruction of the highway, but, although the leading case is on that subject, they rarely use it. It is where there is something in the nature of a technical assault that it is used, as in the 1960 case where a picket gently pushed a policeman. Then there is an arrest— in many cases it is for technical assault or something of that kind, or perhaps threatening words and behaviour— but that is different. Many of these crimes have lain shrouded in some mystery through no one's fault but for the simple reason that the police, using their discretion, as well described by the chief constable of South Wales, tend not to use them.
§ But a code cannot overlook them, and therefore, when one comes to the Secretary of State's code in the criminal law area, I would commend this amendment to your Lordships on the simple ground that this is not the right way to clear up areas which need to be cleared up, probably by 1353 fresh legislation which can, as Sir David McNee put it, do it with difficulty, but it is not impossible. One could clear up a number of these crimes, if that was thought necessary, and I have not by any means listed all of them. However, if the code is going to do it, it will have to do it completely and comprehensively because otherwise it would be unfair to the pickets; it would be totally unfair for the code to try to list the criminal liabilities.
§ Of course, the civil liabilities are easier, and the reason why, to save the time of the Committee, I have been speaking also to Amendment No. 7 is because that raises the issue of the admissibility of the code in the civil courts. I should be grateful if the Minister, when replying, would give some examples of the kind of criminal cases outside the ambit of the Bill in which the code might be used in evidence. That was to have been the subject of a separate amendment, but if I can sweep it in with the others as a separate point I will do so. The essential point here is that the amendment must surely be right because the code is taking on an impossible job, or will be unfair to pickets in not describing the criminal law properly. Alternatively, it will be something in the nature of an amending and consolidating statute, and that cannot be right. On those grounds I commend Amendment No. 6 with its linked Amendment No. 9.
§ [The Sitting was suspended from 7.14p.m. to 8 p.m.]
§ Debate on Amendment No. 6 resumed.
§ Lord MACKAY of CLASHFERN
The clause of the Bill to which these amendments relate gives the Secretary of State power to produce such codes, after appropriate consultation and with the approval of both Houses of Parliament, as he deems necessary for the purpose stated in the Bill itself. The function of the Secretary of State under this clause is not to write a new textbook on the criminal law, or to resolve all outstanding matters related to the kind of offences to which the noble Lord, Lord Wedderburn of Charlton, referred, but to issue such codes as he thinks desirable for the purpose of promoting good industrial relations; and obviously he must take account of the civil law and the criminal law in so doing.
1354 The Secretary of State has indicated that he proposes to produce a code on the closed shop and, in the absence of satisfactory voluntary guidance, on picketing from the point of view of course of good industrial relations.
The effect of the amendments, in particular Amendment No. 6, which has been proposed, would be to remove the requirement in Clause 2 (8) that codes of practice issued by the Secretary of State shall be admissible in evidence in proceedings before a court, and particularly, as I understood the noble Lord, to prevent a code being admissible where a court is determining some question of criminal liability.
I would strongly urge the Committee to reject these amendments. The clause in question simply establishes the status of any code produced by the Secretary of State and approved by Parliament. It ensures that such a code shall be admissible in evidence and, where appropriate, taken into account by a court, tribunal, or committee in determining any question arising in proceedings before it. That does not seem to me to be an unreasonable requirement. In the Government's view it is entirely appropriate that where it is relevant a court should be able to take into account a document which Parliament has approved as being a sensible and practical guide on industrial relations in some aspect.
As I think the noble Lord, Lord Wedderburn, said, to a considerable extent the courts already take into account any evidence that is available to them, including codes of practice, and these amendments would not prevent them from doing so. As my honourable friend the Parliamentary Under-Secretary said in another place, the courts cannot be prevented from taking into account any code of practice, guideline or document of that kind. He also remarked that these days the courts take a slightly less rigid view than perhaps once they did about the kind of documents to which they can have regard.
As the noble Lord, Lord Wedderburn, has pointed out, Section 6 of the Employment Protection Act 1975 contains similar provisions to Clause 2 of this Bill, but it does not require the courts to take the codes into account in any proceedings 1355 before them; it refers only to tribunals and committees. This is because by their nature codes produced by ACAS are more relevant to industrial tribunals or Central Arbitration Committee proceedings. However, it is possible that a code on picketing, for example, produced by the Secretary of State might have relevance to ordinary courts handling actions arising either as a result of the amended section 15, or in a prosecution for an alleged public order offence, such as one of the offences to which the noble Lord referred. It would be neither sensible nor logical not to recognise this fact in our Clause 2.
There is no question— 1 emphasise this strongly, since noble Lords opposite appear to have fears in this regard— of a code produced by the Secretary of State creating new civil or criminal wrongs or offences. The code will give guidance on good industrial relations practice, but it does not affect the duty of the courts to interpret the law on the basis of statute law and existing authorities, as they have always done; and as has been pointed out, it is expressly provided that the provisions of the code by themselves do not constitute any new offence.
Therefore, we believe that the concerns expressed by the noble Lord, Lord Wedderburn, about this particular provision are misplaced. After all, what is the alternative? As the noble Lord said— and I think that in this connection he was referring in particular to the law of England and Wales— the alternative is that there are many grey areas in the law in relation to public order offences. Does he prefer that the courts should deal with these grey areas by closing their eyes, blinding themselves, to what Parliament has approved as a document of guidance on good industrial relations?
I have heard it suggested in some other quarters that the judges are not particularly good at dealing with these matters. Well, why deny them the benefit of this guidance? They would of course make proper use of it. It would be stretching imagination to believe that our judges will take a code of practice issued by the Secretary of State under this clause, assuming it becomes law, as being definitive of the criminal law. In my submission there is no question of that happening.
1356 It is simply guidance on good industrial relations practice in the spheres covered by the codes, and I submit that the courts would have regard to that. It is a proper matter to which they should have regard. They would have regard to it in the proper way, making the proper use of it. I would invite the Committee to reject the amendment—
§ Lord ELWYN-JONES
Before the noble and learned Lord sits down, may I ask what part the code of practice would have in criminal proceedings? Would it be usable in evidence in criminal proceedings, in submissions in criminal proceedings? That I fear was not made clear by the noble and learned Lord's observations, and I am very much in the dark about it.
§ Lord MACKAY of CLASHFERN
I am sorry that the noble and learned Lord should be in the dark. I had rather assumed that he had in fact read the provision which it is sought to amend. The provision which we are seeking to include is thatany such Code shall be admissible in evidence, and …any provision of the Code which appears to the court, tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question ",Therefore, the answer to the noble and learned Lord's question is that the code would first of all be admitted in evidence, and then presumably, in so far as is relevant, it would form part of the submissions, and the court would be entitled to have regard to it—
§ Lord ELWYN-JONES
With great respect, admissible in evidence in regard to what issue in a criminal case? This is what we are really concerned about. One thinks of the parallel with the Highway Code which is of course admissible in evidence in civil actions, but so far as I know is not at all admissible in evidence in criminal proceedings. Therefore, I am very surprised that in this case the code should be admissible in evidence, and if that is so, I ask in regard to what issue is it admissible in a criminal trial.
§ Lord MACKAY of CLASHFERN
First, I think that the Highway Code is admissible in evidence in criminal proceedings. For example, in relation to a charge of careless driving criminal liability 1357 is expressly mentioned in Section 37 of the Road Traffic Act 1972 which gives statutory authority to the Highway Code and mentiones criminal liability. I suppose it is simply an indication, on a charge of careless driving, for example, of what amounts to carelessness. If one has ignored some indication in the Highway Code about how one should drive, then it is not by itself an offence to breach the Highway Code but it may well be evidence of careless driving. Similarly, a code which deals with matters in relation to picketing, for example, could be evidence of what is good industrial relations practice in a matter which touched upon the areas to which the noble and learned Lord referred.
§ Lord WIGODER
As I imagine the noble and Learned Lord, Lord Elwyn-Jones, last appeared in a magistrates' court even longer ago than I did, I think that perhaps I might venture to say that the Highway Code is frequently relied upon in criminal proceedings as supporting or negativating allegations of, for example, careless or dangerous driving. But what I wanted, if I may, to ask the noble Lord, Lord Wedderburn, was this. Would he not agree that the whole theme of his observations was that a code of practice agreed by the Secretary of State after consultation with ACAS always operated to the detriment of the trade unionist; and is this really a very fair assumption? Will there not be many occasions on which the individual trade unionist will wish to rely upon the code of practice in a criminal court in order to show that his behaviour is reasonable— for example, in his use of the highway— and would not the effect of the observations of the noble Lord, Lord Wedderburn, if they were in fact carried out, be to deprive the trade unionist of the right to rely upon something which he could use in his defence?
§ Lord MCCARTHY
Would the noble Lord not agree that, in the case of the codes of practice that he is talking about, these are codes of practice which derive from ACAS, which is a joint body on which sit representatives of the TUC and representatives of the CBI? What we are bothered about is the code of practice which emerges from this Government, given this Government's attitude to picketing and the closed shop.
§ Lord WIGODER
Perhaps I can give a specific example. Let us suppose that consideration is given to the difficulties which sometimes arise upon picket lines in distinguishing between pickets who are members of the union concerned and those people who are of the Socialist Workers' Party who have turned up in the hope of having a good "punch up" with the police; and let us suppose that the code of practice indicated that the union picket in those circumstances might wear an armband. This is not to the detriment of the unions in any way. Let us suppose that a trade unionist, wearing his armband on picket, was arrested for wilful obstruction of the highway, and the issue therefore arose in court as to whether he was lawfully and reasonably using the highway. Would not the effect of the amendment moved by the noble Lord, Lord Wedderburn, be to deprive the trade unionist picket from relying on the code of picketing in his defence?
§ Lord DAVIES of LEEK
What I am trying to get clear as a layman is the semantics or the words of this, and the English language and its meaning. As we now see ACAS, it is the only body empowered to issue codes of practice on industrial relations, roughly. The Secretary of State is here saying that he intends to introduce all sorts of further codes, and a code on union membership agreements, for instance, may well include a proposal which can have a bad effect and a non-peaceful effect.
Let me give an example which is hidden from us, and that is the issue of a particular and, I think, a sinister development in the use of the offence of conspiracy in industrial disputes. The lawyers know more about the law of conspiracy and will try to explain it more clearly than others who use the English language. There was a notorious case in Shrewsbury decided by a court of appeal in 1974. What is conspiracy? So far as I understand it, the offence of conspiracy is committed when two or more people agree to do an unlawful act, or to do a lawful act by unlawful means. In the code of practice that the Minister could introduce, he might introduce another extension that would bring the law of conspiracy on to me myself if I suggested to the 12 members of my union— and there are only 12 of us— that we gang up together to ask for a 30 per 1359 cent. increase in wages. You might have a new code of practice pushed in which could say that I was conspiring by even suggesting that. I still see this as a way (if I can put it in colloquial language) of bashing the unions with verbiage.
On the other hand, I will not go into it at this point— it will come later— but we have fought for the right to picket, and at different times in history both sides of your Lordships' House have agreed with it. In the last analysis, whatever one may say, under the common law there is a right to picket. The question is: Where are we going to introduce criminality? Or is it going to be introduced if we leave the codes of practice outside of ACAS, or as well with the Minister? I leave it at that, because there is no need to try to extend the discussion, but I should like to know whether the law of conspiracy, or the possibility of action under it, is going to be increased by this clause.
§ Lord MACKAY of CLASHFERN
It is very plain from subsection (8) of this clause that:A failure on the part of any person to observe any provision of a Code of Practice issued under this section shall not of itself render him liable to any proceedings ",so there is no question of the code of practice creating any new offence or making some new extension of the offence of conspiracy. I think I should point out that the present power to which the noble Lord, Lord Houghton of Sowerby, referred, to issue a fresh charter under the 1974 Act (which has not, so far as I know, yet been implemented by any Secretary of State), is a power to issue a code which is not in ACAS but in the Secretary of State. The last Government saw plainly, as we see, that there are some areas in which it is appropriate for the Secretary of State to issue codes of practice, and that happens to be one of them. This clause, too, indicates that there are areas where the Secretary of State should issue the code, and that is what we are doing in parallel with the corresponding power to ACAS.
Perhaps I might take this opportunity to answer a question which the noble Lord, Lord McCarthy, put earlier about the existing codes issued by ACAS. There is no present intention on the part of the Government to interfere in 1360 any way with these codes. As I said earlier, industrial relations is a developing matter and it is quite reasonable that these provisions should be flexible and that, as time goes on, ACAS should introduce codes which might supersede in part a code issued by the Secretary of State, and conversely. But there is no present intention to do that so far as the existing ACAS codes are concerned. I hope that I have been able, at least to some extent, to relieve the anxieties of the noble Lord, Lord Davies of Leek.
§ Lord WEDDERBURN of CHARLTON
I appreciate the spirit in which the noble and learned Lord, the Lord Advocate, has responded, and I understand his argument, but we do not share his view and perhaps very briefly I might put the case why we feel we must press these amendments. But, first, in relation to the press charter and the existing code, of course what he says is absolutely right but there is no question of it being adducible in evidence in any court under the existing section. So far as the example suggested by the noble Lord, Lord Wigoder, is concerned, if the code said that pickets should wear armbands it might or it might not be to the advantage of a particular defendant, be he a trade unionist or not; but it highlights the question which my noble and learned friend Lord Elwyn-Jones put, as to what criminal issue the wearing of the armband will relate. It is in that respect that, in the criminal law, the code is bound to do rather more than it does in the civil law. If I may take the example to which the noble and learned Lord, the Lord Advocate, was obviously, I take it, referring when he said that the civil courts can refer to anything, he had in mind, I am sure, the case of United Biscuits v. Wall in 1979, where Mr. Justice Ackner referred to the TUC guide in reaching his decision on the granting of an interlocutory injunction.
§ Lord MACKAY of CLASHFERN
If I may interrupt, I agree that it is one illustration. There are others.
§ Lord WEDDERBURN of CHARLTON
In that kind of case; but that is a case of a discretionary civil remedy as between the law of Scotland and England, and I think there is not a great deal of 1361 difference (as Lord Fraser has recently made clear in the House of Lords) between the granting of an interim interdict and an interlocutory injunction. Where you have a discretionary remedy, the court can take account of various kinds of evidence in a civil action, but that does not answer the question put by my noble and learned friend as the, as it were, rolled-up argument of this amendment to exclude criminal jurisdiction. The noble and learned Lord the Lord Advocate said that the amendment was to exclude particularly the criminal court. The amendments we are pressing are Nos. 6 and 9 which exclude criminal jurisdiction.
The Highway Code, as noble Lords have suggested, is taken into account. When one asks, "To what issue?"— it is always something like the standard of care in relation to careless driving or dangerous driving. Where you have a discretion whether to grant an injunction, the court may take account of various things. Where you have a criminal case involving a level or standard of care, I can see how a Highway Code or a code of practice may be taken as a guide for the court.
I have yet to hear the answers to two of my questions. First, as regards what issues in the criminal law in relation to picketing would the code be used in a similar way? I accept the noble and learned Lord's reading of the section. It says what it says. It is not creating new liabilities; it shall be admissible in evidence and when it appears to the court to be relevant, the court shall take it into account.
Here is the code of practice: pickets must wear armbands and stand in certain positions and so on. To what issues will those go? The noble Lord, Lord Wigoder, came close to suggesting that it would be almost the same as asking, "Do you work here?". The Socialist Worker gentlemen or ladies who come along are from somewhere else; they are not valid pickets under Clause 15. Yet we have been told by the Secretary of State and by the chief constables that the police will not ask, "Do you work here? "— because the code will not trespass in that area for the purpose of criminal law. If you ask what kind of issue the code is going to in a criminal prosecution, I cannot think that there is much differ- 1362 ence between Scotland and England in this. The noble and learned Lord the Lord Advocate did not give an example in the law of Scotland. I do not know. There may be one and, if there is, perhaps he will give it. The sort of issue will be the issue that I put: the crime of unlawfully and without authority watching a place, under Section 7 of the 1875 Act, the crime of unlawfully and without authority besetting a place, the crime of wilfully obstructing the highway.
When a code of practice comes in to illuminate the grey areas of those crimes, it is not going to a standard of care or a discretion for injunction or interdict, but to an area of the law where, if there is uncertainty, that should be decided by a statute properly considered in Committee. I expressed my preference for that method. If Parliament is not wise enough to go through that procedure, it will have to be left to the judges. With respect to the judges, I pefer it to be by statute. There are various crimes, not just about public order. Watching and besetting is not a public order crime; even wilful obstruction of the highway is frequently only on the boundary of a public order offence. There are various crimes where, if the code is to be taken into account, it will be either useless— and the noble and learned Lord has said that it would not be so— or the issues to which it goes will in fact either extend or narrow (and, as my noble friend Lord McCarthy has said, we suspect that it will extend, because of the attitude of the Government; and that seems reasonable) areas of liability which at the moment are arguably in a particular area which, after the introduction of the code, when the court will have to take account of it, will be wider in area than many lawyers say now.
Finally, there is the point on which no assurance is given— one of the most compelling reasons for keeping the criminal law out— the point in respect of the discretion of the police at local level being in any way affected by the code. If we are moving via the code, even by a centimetre, towards a national direction of the discretion of the police— the local police who know the people, as the chief constables so graphically described to the Select Committee of the other place— that will be a retrograde step. That is a further reason, the third reason, why we feel that we must press these amendments.
§ Lord HANKEY
It surprises me that the lawyers go on about this and about how complicated it becomes. One can imagine any number of situations where it would be complicated. May I draw noble Lords' attention to the fact that subsections (2) to (6) provide an elaborate procedure whereby any code of practice will come before Parliament? Everybody is going to be consulted, from ACAS down. I should have thought that we could rely upon the common sense of those people to see that we do not get into
|Allen of Fallowfield, L.||Goronwy-Roberts, L.||Plant, L.|
|Ardwick, L.||Gregson, L.||Ponsonby of Shulbrede, L.|
|Bacon, B.||Hale, L.||[Teller.]|
|Balogh, L.||Hatch of Lusby, L.||Rhodes, L.|
|Birk, B.||Houghton of Sowerby, L.||Ross of Marnock, L.|
|Blease, L. [Teller.]||Irving of Dartford, L.||Stewart of Alvechurch, B.|
|Boston of Faversham, L.||Janner, L.||Stewart of Fulham, L.|
|Bowden, L.||Jeger, B.||Stone, L.|
|Brockway, L.||Kaldor, L.||Strabolgi, L.|
|Cledwyn of Penrhos, L.||Lee of Newton, L.||Strauss, L.|
|Collison, L.||Llewelyn-Davies of Hastoe, B.||Taylor of Gryfe, L.|
|David, B.||Lovell-Davis, L.||Taylor of Mansfield, L.|
|Davies of Leek, L.||McCarthy, L.||Underhill, L.|
|Donaldson of Kingsbridge, L.||Maelor, L.||Wallace of Coslany, L.|
|Elwyn-Jones, L.||Oram, L.||Wedderburn of Charlton, L.|
|Gaitskell, B.||Parry, L.||Winterbottom, L.|
|Auckland, L.||Fortescue, E.||Mowbray and Stourton, L.|
|Bellwin, L.||Glenkinglas, L.||Norfolk, D.|
|Belstead, L.||Gowrie, E.||Nugent of Guildford, L.|
|Boothby, L.||Greenway, L.||Orkney, E.|
|Bradford, E.||Gridley, L.||Orr-Ewing, L.|
|Brougham and Vaux, L.||Grimston of Westbury, L.||Robbins, L.|
|Buxton of Alsa, L.||Haig, E.||Rochdale, V.|
|Cairns, E.||Hailsham of Saint Marylebone, L.||Rochester, L.|
|Caithness, E.||(L. Chancellor.)||Romney, E.|
|Caldecote, V.||Halsbury, E.||St. Aldwyn, E.|
|Chelwood, L.||Hankey, L.||Sandys, L. [Teller.]|
|Clifford of Chudleigh, L.||Hanworth, V.||Sempill, Ly.|
|Cockfield, L.||Harris of High Cross, L.||Simon, V.|
|Cork and Orrery, E.||Henley, L.||Skelmersdale, L.|
|Cottesloe, L.||Hives, L.||Spens, L.|
|Crathorne, L.||Hornsby-Smith. B.||Stamp, L.|
|Cromartie, E.||Hylton-Foster, B.||Strathcona and Mount Royal, L.|
|Cullen of Ashbourne, L.||Keith of Castleacre, L.||Sudeley, L.|
|De La Warr, E.||Kimberley, E.||Swansea, L.|
|De L'Isle, V.||Kinnoull, E.||Swinfen, L.|
|Denham, L. [Teller.]||Lauderdale, E.||Torphichen, L.|
|Digby, L.||Long, V.||Tranmire, L.|
|Dormer, L.||Lyell, L.||Trefgarne, L.|
|Drumalbyn, L.||Mackay of Clashfern, L.||Trenchard, V.|
|Ellenborough, L.||Macleod of Borve, B.||Trumpington, B.|
|Elliot of Harwood, B.||Mancroft, L.||Tweeddale, M.|
|Elton, L.||Marley, L.||Ullswater, V.|
|Evans of Claughton, L.||Massereene and Ferrard, V.||Vaux of Harrowden, L.|
|Faithfull, B.||Merrivale, L.||Vivian, L.|
|Falkland, V.||Middleton, L.||Ward of Witley, V.|
|Ferrers, E.||Montgomery of Alamein, V.||Wigoder, L.|
|Ferrier, L.||Morris, L.||Young B.|
|Forester, L.||Mottistone, L.|
§ all the difficulties which can be imagined. And if we did, subsection (6) provides that the Secretary of State can amend it. I should have thought that the text as it stands provides adequate safeguards.
§ 8.26 p.m.
§ On Question, Whether the said amendment (No. 6) shall be agreed to?
§ Their Lordships divided: Contents, 48; Not-Contents, 97.1365
§ [Amendments Nos. 7, 8 and 9 not moved.]
§ 8.35 p.m.
§ On Question, Whether Clause 2, as amended, shall stand part of the Bill?
§ Lord MCCARTHY
We do not wish to make a great deal of this at this time of night, but there are one or two points that we should like to raise. We are not satisfied, obviously, with what has been said about the objects of the code of practice, particularly in relation to criminal liability and to the role of the police. We have had a Division on that and we may raise it again on Report. There are two other issues I should like to raise on this Motion, That the clause shall stand part of the Bill, and I hope that the noble and learned Lord may answer subsequently.
The first consists of the point that I made earlier, of the power of the Secretary of State to cancel the ACAS codes. We have been told that the Government have no intention at present— and I am thankful for that assurance— to change or, as I wrote it down, to interfere with the existing ACAS codes. My question is therefore quite simple: Why, then, take the power to do so? If there is no intention to do so, why take powers? My second question relates to the rather strange statement in the Notes on Clause 2, codes of practice, because it does not appear in terms in the clause itself. I should like to ask for clarification of what is said on the second page, that there will be a reciprocal ability for the new ACAS code to supersede any previous codes in whole or in part, including any previously issued by the Secretary of State under this clause. This will be given by an amendment to Section 6 of the 1975 Act and will be achieved by paragraph 4 of Schedule 1 to the Bill.
I say this in all innocence: this seems to me to project us into a situation in which we could have two sources of codes each firing them in different directions at each other. On one side there is the Secretary of State cancelling the ACAS codes. On the other side there is ACAS cancelling the Secretary of State's codes, all going backwards and forwards. One could say that the ACAS codes cannot really cancel out the Secretary of State's 1366 codes because the ACAS codes are subject in a sense to the Secretary of State's veto. He has to put their codes to the House. In that case, why do we have ACAS with this power to cancel out the Secretary of State's codes? Any clarification which we could have at this time on the backwards and forwards of these different cancelling out processes we should much appreciate.
§ Lord MACKAY of CLASHFERN
The matter is one of convenience. The idea is that these codes should deal with subjects under the general power which is contained both in the ACAS power and in the present clause giving power to the Secretary of State. It might well be that the Secretary of State's code will contain material which might impinge on the ACAS code; and conversely, as I said earlier. Therefore it seems appropriate to have this dual possibility, so that the codes would not come into conflict but the latter would supersede the earlier one so far as necessary. After all, industrial relations is a developing subject. One hopes indeed that it will develop further over the years. In order not to cramp the style of development, clauses of the sort contained in Clause 2, so far as the ACAS codes are concerned, and contained in Schedule 1, so far as the Secretary of State's codes are concerned, are appropriate.
It is also worth saying that Parliament will have to approve the codes, and therefore the joint efforts of ACAS and the Secretary of State as two different sources of enlightenment will both have to be approved by Parliament before they become effective. So I would regard this simply as a useful piece of machinery. I do not see any difficulty in it whatsoever.
§ Clause 2, as amended, agreed to.
§ Clause 3 [Unreasonable exclusion or explulsion from trade union]:
Lord MCCARTHY moved Amendment No. 10:
Page 4, line 7, leave out ("or is seeking to be "and insert ("offered employment or is").
§ The noble Lord said: We should like to take with Amendment No. 10 Amendments Nos. 11 and 17, and to speak on all three because they are connected. The object of these amendments is to try to 1367 clarify a confusion, as we see it, between what the Bill says and what the Bill intends, or what the Government intend, in so far as what the Government intend is stated in the Notes on Clauses. In subsection (1) in the Notes on Clauses we read as a description of what Clause 3 (1) does, that it limits the application of the right provided by subsection (2) to persons who are, or who would be if offered employment, employed where there is a union membership agreement in force. I will say that again because it is critical: to persons who are, or would be if offered employment, employed where there is a union membership agreement in force. If that statement were in the Bill then there would be no need for this amendment.
When we turn to the Bill we find in Clause 3 (2):
Every person who is, or who is seeking to be, in employment ",
which suggests it does not have to be somebody offered a job, but somebody who is seeking to be offered a job. Therefore, we have our three amendments which are all related, where we are trying at page 4 line 7 to leave out "or is seeking to be "and to insert "offered employment or is". That I would say is in line with the Notes on Clauses. Subsequently, we are trying to change Clause 3 (4) so that at the end of line 24 we insert:
and that employment with a particular employer has been refused or lost as a consequence of such refusal or expulsion ".
That makes the point that the job must be, as it were, offered and lost as a result of the applicant being in a union. The last amendment is to page 5, line 6, after "union" to insert:
made by a person who has obtained or who has been offered employment to which this section applies ".
§ Unfortunately, the Notes on Clauses, on Clause 3, do not say— and it was not said in another place— why the Government should want to do one thing or the other; that is to say, why they should want to widen the ambit of Clause 3 so that it includes every person who is, or who is seeking to be, on the one hand, or why they should prefer to narrow it to those who are offered employment. I have to say a little about why we would consider the second a much preferable policy to adopt than the first.1368
§ What we have here are a set of provisions which are to regulate unreasonable exclusion or expulsion from a trade union, and the whole purport and drift of these sec-lions of the Bill are, I understand, to deal with a situation in which a union membership agreement is cither in existence or in prospect, or is de facto in operation. There may or may not be a case— we shall be arguing that later— for having legal regulation of unreasonable exclusion or expulsion from a trade union within the context of a union membership agreement. But it seems to me that it is quite different to say that unions that in no way get themselves involved in union membership agreements or in areas where there are no such agreements or in areas which are entirely voluntary from the point of view of trade union entry and trade union exclusion should be governed by this part of the Bill.
§ This would greatly increase the case-load on tribunals. It would mean that everybody who felt he had been offered a job, might be offered a job or would like to have a job could come along and use the provisions in the Bill. To take an extreme case, which is not all that extreme, one could have a man who felt he would like to get into NATSOPA or the AEWU or Equity— all unions which from time to time have had restrictions. We are asking: why should there be this very general provision in the Bill in which every person who is, or is seeking to be, in employment in an area of a union membership agreement, whether or not he is going to be given that employment by the employer himself, is covered by this Bill?
§ Clearly, if an employer is prepared to take somebody into a job and the reason he is not permitted to take that job is because he cannot get into a union or has been excluded from a union, then here we have a specific example of the union membership agreement in operation. But I suggest that until an employer offers the prospect of a job and says that a job is on offer, we cannot say that we are in an area where a union membership agreement is in operation from the point of view of the individual worker. For that reason, we would suggest that your Lordships should accept these amendments. I beg to move.
§ Lord MOTTISTONE
Surely the answer to the question of the noble Lord, 1369 Lord McCarthy, is that this clause as it stands is giving the widest possible opportunity to people who are seeking jobs. If it so happens that there is a closed shop or a union membership agreement, however you care to describe it, already in existence, they cannot even seek and they are not even going to be offered a job if they come forward or if they even make enquiries and say, "I don't belong to the appropriate union for this."
This is surely trying to break a log jam and to give an opportunity to a wider list of people. We are told there are a lot of people unemployed and that there are a lot of people who are wrongly trained for a particular job. People might seek to get training and they might go to a Government skillcentre and obtain the necessary qualifications; but, if they are not even allowed to seek, they still could not go and perform the new task for which they were qualified in a firm which had a rigid closed shop.
This is surely the basis of the matter. I am not going to underline all that implies, and I hope that your Lordships are with me on that point. The point is that there may be people who want to seek a job and if they cannot even do that they are not going to be offered one. It seems to me that the various amendments are ail restraining the ability of people to get jobs when they are qualified for them, in circumstances in which the closed shop is a barrier to them.
§ Lord MCCARTHY
If I may just intervene, I do not want the noble Lord to misunderstand. Our amendment is not suggesting that anybody cannot seek: of course they can seek. We are saying that, if a person seeks and then is offered a job and is refused that job because he cannot get into a union, then the Bill should apply. Nobody is saying, "You can't seek."
§ Viscount CALDECOTE
The noble Lord, Lord McCarthy, will be aware that there are certain union membership agreements which are pre-entry, and if a chap is not a member of the relevant union before he seeks a job he has not got a ghost of a chance of getting the job. It is all wrong, but that is the position. Why does he want to discriminate against a 1370 person in that position by not giving him the right to join a union before applying for the job? I cannot see why he wants to discriminate against those people. I wish we had not got pre-entry closed shops, but as long as we have them surely people have to be protected in this way. I cannot see the logic of his argument.
Earl DE LA WARR
I very much doubt whether the noble Lord, although he obviously thinks he is, is really talking on behalf of all unions. I entirely agree with the arguments my two noble friends have just put forward; but is the noble Lord quite sure that a non-craft union is going to want this sort of restriction applied? I cannot believe it. Many unions are looking hard for members. That is one of the things we deal with in connection with the whole closed shop argument. I should like his assurance, because I know how close he is to the unions, that they think this is sensible. I should have thought that they thought of it just as we do on this side.
§ Lord WEDDERBURN of CHARLTON
One feature which has been mentioned is the question of why the clause, if it has any logic— and we shall argue later that it has not— should apply only to someone who has lost either a job or an offer of a job. Even in the pre-entry situation there could be an offer from the employer saying: "If you get into the union then I will take you ". That is a well-known situation. As regards seamen, if the union will take him in the man may be put on the register, which is perhaps the tightest of all. The reason we say that this clause, if it is to apply at all— which we shall resist— must logically apply where a man has lost a job prospect or an actual job. This is related to admission to unions and several speakers have referred to unreasonable admission and it is much more relevant to that particular point.
The clause does not give anybody any right when he is unreasonably refused employment by an employer. He can be in the union or anything else and the employer can say, "I don't want you ", and there is nothing now or in the Bill to give a man who is on a black list— and there are organisations, as will be known to noble Lords opposite, which 1371 circulate black lists of people that you really should not take on— any recourse to a tribunal.
We say that if— which we deny— there is a case for giving a man or a woman a remedy in a tribunal for unreasonable exclusion and refusal of admission to a union, at least that must be a case where he or she could show a job loss or a job prospect loss. Otherwise the tribunals will be cluttered with people who are sent to try it on against a union, simply wanting to get into a union, when they have no prospect of being employed in the relevant industry. It may be said that that will be taken into account in terms of the compensation, but that is a different point which has not yet been made. But the compensation, even if it is very small, will nevertheless trouble the tribunal with a case which should never have been brought. The cases, if they are to apply, should apply to job loss.
§ Lord MCCARTHY
The point is that we are not saying that anybody should be refused entry into a union. Of course, there is a difference between a craft union and a general union. Indeed, the general unions will take anybody who will come and they are keen for members. We are not trying in our amendments, nor are the Government, to affect that in any way. What we are saying is that if, for some reason, a non-craft union refuses entry or exercises its right of expulsion under the rules, from our point of view, it is more sensible that this Bill should begin to apply from the point where the individual in those circumstances has the prospect of a job loss, than that anyone who says he cannot get into the T and G or into Equity, whether or not there is any prospect of a job, can allege that there is a prospect of a job and that he is seeking a job in what is, in the case of Equity, an entirely closed shop area, and can go along to the tribunal on what we would regard as not being the purposes of this clause.
Earl DE LA WARR
As I suspected, this is angled towards protection of the craft unions. I think that the noble Lord has proved the point.
§ Lord TORPHICHEN
I still have not been convinced by either the noble Lord, Lord McCarthy, or the noble Lord, Lord Wedderburn. May I preface my remarks by saying that I am probably the only Member of your Lordships' House who could possibly find himself at the wrong end of a closed shop agreement and liable to lose his job thereby. I have just changed my job from one firm which contemplated using the closed shop, to one where there is a multipicity of unions on one site and no possibility of a close shop ever being in sight.
The argument that I have heard from the Front Bench opposite appears disreputable, since noble Lords wish to build a Catch 22 clause into the Bill, in that if you fill in your application form for a job and put the wrong answer at the bottom of the form where it asks "Do you belong to a union and, if so, which? ", then the union which has what is euphemistically termed a union membership agreement can say to the employer, "That is the wrong union and we do not want people who are not members of our union to join you ", and the employer will quite happily not consider offering you a job. That is what will happen if you have put on your application form that you do not belong to a union or are a member of the wrong union. By that means, it seems that the Front Bench opposite wish to change the responsibility neatly from the union to the employer and thus avoid the effects of this clause.
§ Lord ROCHESTER
To put it in another way, which I hope may be even more succinct, is not the noble Lord seeking to deny these rights to people who, while neither in employment nor having the offer of a job, are nevertheless seeking one? Surely, that is the effect of what he is trying to do, is it not?
§ 8.55 p m.
The Earl of GOWRIE
I am beginning to feel rather redundant, because my noble friend Lord Torphichen and the noble Lord, Lord Rochester, seem to me to have put their fingers on the enormous weakness in these amendments. But I do not want simply to leave it at that, impressed though we are by the noble Lords' contributions, because I want to say something about Clause 3 since it 1373 is so critical to our whole approach in the Bill, and provides one of the most important elements of our proposed reforms of the closed shop.
It is one of the most unacceptable features of the closed shop that a union may be able to pressure individuals into taking industrial action— for instance, against their better judgment— by the threat of the removal of their union cards. In some disputes, pickets have threatened other workers with the withdrawal of their union cards if they refused to cooperate. The law must surely be changed, because where there is a closed shop— and we accept that this is a feature of British industrial society, regardless of whether one thinks that that is a regrettable development— therefore, no union card can mean no job. We would say that events in recent years have made very clear to us, and have reinforced our conviction of the need to reform here and to provide redress for individuals who are affected.
However, in seeking reforms we have tried to deal with the practical realities of our industrial society. Our intention is to make the limited, but vital, changes in the law, as I said on Second Reading, which will reinstate the protection which individual employees and workers need against the abuse of trade union power. So here is the new right against unreasonable exclusion or explusion from a trade union applying only where the employment in question is covered by union membership agreement or closed shop, for short. That is, obviously, because, for the reasons I have given, the threat of exclusion or expulsion always carries the most force where there is a closed shop and no card means no job.
Earlier legislation of the last Wilson Government after the General Election of 1974— Section 5 of the 1974 Act-provided a general right against unreasonable exclusion or expulsion from a union. As your Lordships will remember, that was when the Government of the day were in a minority position and, in my view, to their lasting disgrace in this area, the moment they achieved a majority position very briefly, in 1976, they actually got rid of that totally unexceptionable right, the general right against unreasonable exclusion or expulsion from a union.
1374 I really cannot see what set of industrial circumstances, or union circumstances, could have justified that 1976 repeal. The net result of the 1976 repeal of the previous Government's own legislation is that there is now no current statutory protection whatsoever, though I of course acknowledge that there is a common law right not to be expelled contrary to rule or to natural justice.
These amendments seek to impose a further and, in our view, altogether unacceptable limitation on the right to complain of unreasonable exclusion or expulsion, by insisting, as the noble Lord has told us, that effectively a job must actually be lost before there can be a right of complaint. By doing things in that way, they remove the assistance offered by the clause to those who feei that they are being pressured into some form of action— some form of strike, let us say— for fear of loss of their union card.
They also remove the protection offered to those threatened with dismissal, and I should have thought that the threats make the issue even more intolerable. Noble Lords opposite— in particular the noble Lords, Lord McCarthy and Lord Wedderburn, who have served with great distinction on the TUC's Independent Review Committee— will not need to be reminded that that committee deals with such complaints as well as with cases of actual dismissal following exclusion or expulsion. That is right because, as the IRC itself has said, most applicants are interested principally in securing their jobs. Its terms of reference are,To consider appeals from individuals who have been dismissed or given notice of dismissal from their jobs as a result of having been expelled from or refused admission to a union in a situation where trade union membership is a condition of employment ".But, as I believe the independent review committee discovered as its work progressed, it is far more difficult to gain reinstatement once a job has been lost. It is therefore important that the new statutory right ensures that you can make an appeal before a threat of dismissal results in the loss of your job.
A number of examples exist of circumstances in which it is essential to be a member of a union before the question of application for a particular job can 1375 arise. For instance, in order to be offered employment in the Merchant Navy, one has got to be on the register of seamen, and one cannot get on to that register unless one holds a union ticket. So denial of union membership means denial of the prospect of employment just as surely as if the applicant were refused a particular job. These amendments would deny redress in those kinds of circumstances and they are therefore completely unacceptable.
Perhaps rather more frequently a complainant will have to show that a particular job was available and that he himself was deprived of it because of his unreasonable exclusion or explusion. He would, for example, have to show that he was genuinely seeking employment and not complaining speculatively with the intention of causing disruption, or seeking damages, or whatever. Industrial tribunals are very experienced in similar matters relating to unfair dismissal, and our view is that they are perfectly competent to decide whether a particular complainant was genuinely seeking relevant employment or whether, as it were, in colloquial language, he was "trying it on."
I shall not deal with the question of compensation because we come to that in Clause 4 of the Bill. But, if a union is found to have acted unreasonably, any compensation awarded would of course be affected by whether there was an actual dismissal or job loss. In many cases, without evidence of imminent employment but for the union exclusion, not much by way of compensation could be expected. This should cast even further doubt on arguments that the provision could be used speculatively by anti-union troublemakers.
I hope that, in the light of what I have said, noble Lords will not press their amendments, but if they do I must ask the House to reject them.
§ Lord MCCARTHY
I find it difficult to know how to react to what the noble Earl has just said. For part of the time he was saying that where there is a closed shop there is no union card, and therefore no job, and that that is bad. That would be covered by our amendments. We are not suggesting that this should not be 1376 covered by our amendments. For part of the time the noble Earl referred to what happened between 1974 and 1976. In those three years there were four successful cases. Then for part of the time the noble Earl spoke about the Independent Review Committee, to which I did not wish to refer. However, the noble Earl has raised the issue and says that he is concerned with just that area. But just the area of the independent review committee is the area which would be covered if these amendments were accepted.
Right at the end the noble Earl told us that industrial tribunals could be seen, and would undoubtedly be seen, to take into account whether or not people were genuinely seeking employment. If the Bill said, "Every person who is or is not genuinely seeking to be in employment… ", the noble Earl might have a case, but such a phrase as "genuinely seeking employment" is not in the Bill. It is late at night. We do not want to withdraw this amendment, nor do we want to divide the House, but we do want to express our opposition, and this I am told is the third choice.
§ On Question, amendment negatived. [Amendment No. 11 not moved.)
§ 9.5 p.m.
Lord MCCARTHY moved Amendment No. 12:
Page 4, line 28, after ("case) insert (" having regard to any relevant agreement or arrangements made between one or more employers or employers' associations and one or more independent trade unions or between independent trade unions connected with membership or non-membership of a trade union").
The noble Lord said: This is the amendment about Bridlington. The amendment suggests that the clause should include a reference which says that the tribunal should have
regard to any relevant arrangement or agreement made between one or more employers or employers' associations and one or more independent trade unions or between independent trade unions connected with membership or non-membership of a trade union".
§ This is necessary because it is possible to argue, as a result of 3.11, that some union rules which make provision for this, or some union agreements which make provision for this, or some collective agreements between employers' associations 1377 and unions might be void because they could be said to exclude or limit the operation of this clause. Therefore we would argue— and we should like to know whether the Government argue, because there is a certain amount of confusion in our mind as a result of something which was said in another place— that unless the Bill is amended in this way at this stage there is a danger that the extremely important Bridlington Agreement, which I am afraid I shall have to go into in a little detail, could be undermined and be regarded as void because of the Bill.
§ I say that there is some doubt about this matter because in another place a Member asked the Minister responsible whether the Government were satisfied that this clause would provide safeguards of that sort and that it would not undermine the Bridlington procedures. The Minister's answer was that they were satisfied, but he said that he would like to explain why the Government took that view. Then he said that the key to that clause was the concept of what is reasonable and what is unreasonable. In other words, what is being said is that we can rely upon the tribunal to say that, despite the provisions of 3.11, the Bridlington procedures, or their associated procedures, would be regarded as reasonable.
§ Therefore, if a union should say they cannot recruit somebody because they have an understanding with another union which is not in their recruitment area, then that would be regarded by the tribunal as reasonable. If there was an appeal to the EAT that would be reasonable, and if there was an appeal to the Court of Appeal, the Master of the Rolls, for example, would say it was reasonable; and if, for example, a union inadvertently (as does happen) recruits somebody and then says, "You have been inadvertently recruited and therefore we put you (as is provided in the rules; because they could not do it if it was not provided in the rules— that would be unlawful) into a temporary membership category, and then we discover through representations being made from other unions that in fact we were not entitled to recruit you, that in order to uphold the principles of Bridlington, while we are very sorry we have to exclude you, as we are entitled to do under the rules of our union ". Unless there were such a rule and it was quite clear and 1378 precise, and unless they carried out that rule, very clearly and observing natural justice in its exercise, that would be unlawful and they would not be able to do it. But at the moment the common law says, if they have such rules, "That is all right"; and then we are told, as it were, by the debate in another place, that that will be all right. The tribunals would say, "That is reasonble ", and the EAT would say, "That is reasonable ", and the Court of Appeal would say, "It is perfectly reasonable for a union to exclude somebody in order to uphold the Bridlington Agreement".
§ We are saying that we are not convinced and we should like something put into this Bill to make it clear that the relevant agreements or arrangements between employers' associations and trade unions, and particularly the agreements in the TUC's Bridlington rules, would in fact be able to be embodied and accepted by a tribunal as being reasonable.
§ Sometimes one hears a considerable amount of talk about the Bridlington procedures, as though people would argue that there is something particularly crude or disadvantageous to the average trade union member or to the organisation of collective bargaining about them. In fact the Bridlington procedures are quite simple. They aim to spell out certain spheres of influence between trade unions; they aim, for example, to ensure that if someone wants to move from one union to another, someone who has recently been a member of an affiliated union, he should specify, if he wants to resign, why he wants to resign, and he must state that he is clear on the books and another union, before it takes him in, should ask him to fill in a form to show that he is clear on the books and that he is not under any discipline or penalty from that union. In fact it is specified under principle 5 that unions are entitled to organise themselves in such a way that they can allocate areas of organisation.
§ Indeed, in many ways the Bridlington principles are the foundation upon which the TUC seeks to establish a certain degree of regulation and order out of the chaos of the British trade union structure. It is principle 7 of the Bridlington principles which enables the TUC to do its inter-union disputes demarcation work. It is 1379 principle 8 which enables it to deal with unauthorised stoppages. These, incidentally, are principles of the TUC which derive in their developed sense from the much despised In Place of Strife.
§ Nevertheless, the fact is that the Bridlington principles are the foundation of clarity and order, in so far as it exists. I am very happy to accept the statements which have been made from the other side of the Committee that the British trade union movement is not very clear, not very coherent and rather chaotic, but such clarity and consistency and order as there is exists because of the commitment of the Trades Union Congress and its members to the Bridlington principles, and anything which undermines the operation of those principles— and I say this with very great respect to this Committee— does even more harm than would be done by this Bill. Therefore we are suggesting that on this occasion the Government should make it clear beyond peradventure that despite the statements of the Minister in another place they will be precise and clear and admit these amendments into this part of the Bill. I beg to move.
§ 9.12 p.m.
§ Lord MACKAY of CLASHFERN
The noble Lord, Lord McCarthy, has described the Bridlington procedures as an attempt to bring order into the chaos of the British trade union structure. Certainly the Government strongly support action which has that desirable effect and they believe that the Bridlington procedures have a great part to play in that operation. Therefore they see great value in them, and I give the unreserved assurance that there is no intention whatsoever in this Bill on the part of the Government to undermine those procedures.
However, having said that, these amendments which are now proposed, and particularly Amendment No. 12, are not necessary to protect actions properly taken in accordance with the Bridlington arrangements. A tribunal, under the provisions of Clause 3, and particularly Clause 3 (5), will have to determine whether, in all the relevant circumstances, a trade union has acted reasonably in excluding or 1380 expelling a person. The tribunal, therefore, will of course include in its consideration the question whether the action was taken in pursuit of the Bridlington procedures or similar arrangements.
It is worth noting that in the one relevant case taken under Section 5 of the 1974 Act, which was not a closed shop case, the expulsion of two members, on the grounds that a Bridlington award would, if sought, have required this action, was found reasonable. The Government have considered most carefully the TUC's representations on this point and have concluded that there is no need for a special provision in the legislation to cover these matters, because the consideration of all relevant circumstances in determining the matter,in accordance with equity and the substantial merits of the casewill cover that.
My right honourable friend the Secretary of State proposes to issue a code of practice after consultation with ACAS on the operation of the closed shop, and that code will certainly be expected to contain practical guidance as to the importance and significance of the Bridlington procedures. As we know from the earlier debate, such codes will be taken into account by tribunals and any courts before which such cases have to come.
These amendments are also undesirable because special provision drawing particular attention to certain activities or deeming certain actions reasonable or unreasonable would add to the complexity of the legislation, making the task of tribunals more difficult and the rights of individuals less easy to comprehend. Extensive lists of criteria would not seem suitable for this legislation. Surely it is much better to allow the tribunals to weigh up each case on its merits and assisted in that task by the guidance set out in the relevant code of practice. Although we have every sympathy with the basic principle to which the noble Lord, Lord McCarthy, was referring, we consider that it is sufficiently protected by the words of the clause, and I would invite your Lordships not to support this amendment.
§ Lord MCCARTHY
In the light of the assurances given by the noble and learned 1381 Lord, I am happy to beg leave to withdraw this amendment.
§ Amendment, by leave, withdrawn.
§ 9.17 p.m.
§ Lord MCCARTHY moved Amendment No. 13:
Page 4, line 3), at end insert—
("() On a complaint under this section whereby the complainant alleges a contravention of subsection (2) (a) above, the tribunal shall determine that the trade union has acted reasonably if it proves that its refusal to admit the complainant was substantially caused by: —
The noble Lord said: This is a complicated amendment and the reason why we have put it down is that we felt that it was worth placing on record what we regard as the proper grounds and the reasonable grounds on which unions could both admit and refuse to admit, and even to exclude members. Indeed, we would go so far as to say that the great majority of unions actually operate these principles. We are not saying that these principles in an ideal world should be embodied in a Bill, but this is not an ideal world; we have this Bill, and therefore it seems to us incumbent upon us to say what we believe, if we are to have unreasonable exclusion and expulsion from trade unions as an item in a Bill of this kind, the kind
of criteria should be. We have set out paragraphs (a) (b) (c) and (d) These seem to us to be the kind of criteria which a tribunal could use to determine that the trade union had acted reasonably in the circumstances of the case. The first of our paragraphs states:
the fact that members of the trade union are without employment and that no adequate opportunities for their employment exist in the trade or industry, or section or district of trade or industry, in which the complainant would be likely to seek employment".
§ In other words, we are saying that trade unions, like professional associations, like all kinds of vocational associations if they are in a position to do so, are entitled to exercise a reasonable degree of entry control.
§ This takes me back to the point which was raised on the other side of the Committee a little while ago about the pre-entry question. Where pre-entry closed shop exists its objective is entry control. It exists in those industries where at the moment there are, or in the past there have been, very considerable influxes of labour and where it has been essential for the trade union, in order to maintain effective collective bargaining, to exercise an element of entry control.
§ For example, the entertainment profession: the Musicians' Union, Equity and NATTKE could not operate today effective collective bargaining without the entry control function, because the great majority of musicans and actors are not on standard contracts at all: they are on night contracts, week contracts, run of the mill contracts, or run of the show contracts. They are on Equity contracts and without the union card as a ticket to the job these people could not operate effective collective bargaining. Therefore, we say that that is a perfectly reasonable criterion for a union in that situation to take into account.
§ Similarly, there are unions such as NATSOPA, which at present has almost as many members out of trade— that is to say, unemployed— as it has in trade. If that union were to continue to admit people into its organisation it would, in fact, become bankrupt, because out of trade benefit has to be paid to people who are out of trade. Therefore, if unions are to work effectively they must 1383 have an entry control function. We are saying that that is a perfectly reasonable thing to insert in a qualification.
Secondly, we are saying under paragraph (b):
the fact that the complainant lacks the qualifications, skills or capacities which are, according to its rules, appropriate and necessary for membership of the trade union ",
§ should be a perfectly reasonable argument for excluding someone— that is, if one finds that someone has wrongfully claimed to have qualifications. Again, I would say that there is a quite straight parallel between what trade unions do and what professional associations do. Qualifications, skills, and capacities in craft unions and occupational unions are a perfectly reasonable objective criterion for exclusion or, in particular, for non-admission.
§ Thirdly, we are saying— and this goes back to the amendment which we have just moved— that, in broad terms, Bridlington is the purpose of paragraph (c). Bridlington, in broad terms, is a perfectly reasonable reason for excluding somebody in this case or refusing to recruit someone.
§ I suppose that the controversy in most people's minds would arise as regards the final provision, and I am bound to say that we spent some considerable time deciding how to put the point. The fact is that trade unions, like social clubs, like military organisations and like political parties have to have penalties for people who do not observe the rules. Usually those penalties are phased penalities: they begin with something like a £ 5 fine or a £ 10 fine or something of that kind. In the overwhelming majority of cases those who are excluded from a union for some offence against the rules of the union which would fall under category (d) are, in fact, people who have originally been visited with a far less severe penalty and they have refused to pay that penalty.
§ The idea that people become expelled from unions for not going on strike is an idea of ignorance. If people refuse to go on strike they are "branched" and when they are "branched" they are asked whether they have reasons. If they have no justifiable reason they are asked to pay a fine. If they refuse to pay the fine 1384 and to subject themselves to the authority and discipline of the union, they can find themselves in a situation where they are eventually expelled.
§ I stress to the Committee that all of these matters are subject to common law review. Anyone who feels that he has been unjustifiably expelled from a union can go before a common law court and can say that that is so. The court will interpret the union's rules and interpret them very narrowly. These days no union can get away with a general rule rather like the old Section 40 of the Army Act which says that conduct prejudicial to good order and military discipline can visit the most fearful things upon one. The courts are very rigorous in the way that they interpret union rules, particularly union rules affecting explusion.
§ Nevertheless, the courts have accepted in principle the idea that unions are entitled to ask for discipline; that they are entitled to ask for obedience under their constitutional rules; and that they are entitled, in the last analysis, to expel people who systematically break those rules. Therefore, in paragraph (d) we have tried to set out the kind of way in which we would say that reasonable cause could be given for expulsion.
§ Finally, it will be said, "But, of course, the tribunal will take all this into account". It will be said that the tribunal is composed of reasonable men and that we are talking about unreasonable exclusion and expulsion, and all this is reasonable. Later on in other parts of the Bill— unfortunately, we have not yet reached them— the Government will come before us, if they reflect what was said in the other place (especially, for example, in relation to small businessmen) and say, "These things are clear; they will be done; they are there already ". But for psychological reasons, for reassurance reasons, we ought to give people some indication of what we intend. We are saying that something should also be done for trade unionists. We are saying that these provisions are reasonable and it would be an act of some faith and understanding if the Government were prepared to put them into the Bill tonight.
§ Lord ROBBINS
I have listened with growing amazement to the vindication of 1385 Lord McCarthy's amendment, which in the end seemed to me to constitute a vindication of all restrictive practices without exception. It would be very interesting to hear how the noble Lord divides justifiable restrictive practices from unjustifiable ones in the light of what he has said and what may be read by your Lordships in Hansard tomorrow morning.
§ Lord MCCARTHY
I am tempted to say to the noble Lord that justifiable restrictive practices are mine and unjustifiable restrictive practices are yours. But I shall not say that. I am not talking about restrictive practices; I am talking about entry control. The fact is that a large number of unions that practice entry control are not doing it for reasons of restrictive practices. They are very often doing it with the condonation, admission and encouragement of the employer himself. They are doing it as labour agents to regulate entry to the trade. It is not the same as a restrictive practice.
§ Lord MOTTISTONE
Although I understand completely what the noble Lord Lord McCarthy, has said and that there are bodies, such as clubs, to which people have their own rules for entry, there is one essential difference between a trade union and a club. If one does not belong to a club, one does not lose the opportunity to earn one's living; whereas under certain circumstances, with which this clause deals, it is possible to lose the opportunity to earn one's living if one does not belong to an appropriate trade union.
It seems to me that that puts it in a different class and that in considering this one therefore not only has to look to the interests of the trade unions in order to have a reasonable control, as they see it, but one should also look to the rights of the individual and the opportunities he or she has for getting employment in jobs for which he or she might be skilled. I jotted down and read this amendment. It seems to me that the whole of it narrows the exclusive-ness of the trade unions and enables them to restrain people from joining for no particular reason except that they think that it is a good thing. I believe that that is wrong when we are talking about people's ability to earn their living.
§ Lord DAVIES of LEEK
I shall be brief. I want to ask a question. If these four paragraphs— and I shall not go through them because of the time— are not introduced, I truly believe that we could have organisations which can exploit this situation and make a bonanza for lawyers or sea lawyers to have a continuous representation. Clause 4 contains a particular phrase and I want to know whether I am correct in my understanding. Perhaps the two Ministers will listen for a moment because this is a serious question. I may be completely wrong and, if so, it is right that I be corrected. From Clause 4, which could result in appeals for compensation, I understand that the compensation could go as high as £ 8, 000 odd. Unless the Bill is amended in the way my noble friends are suggesting, "wide boys "of all types will have a grand opportunity.
§ 9.30 p.m.
§ Lord HOUGHTON of SOWERBY
When I heard the noble Earl, Lord Gowrie, read out the terms of reference of the Independent Review Committee established by the TUC, I noticed how brief they were, and it surprises me that anybody who has served on tribunals, on committees of inquiry or on adjudicating authorities should want to press for harness to be put on members of those bodies. This is a question of trustworthiness and confidence in a tribunal, and the amendment is a proposed extension of the question whether a trade union has acted reasonably or unreasonably, as shall be determined in accordance with equity and the substantial merits of the case; and it goes on to say that in the discharge of that responsibility the tribunal shall have regard to four matters which must guide their judgment. One is:the fact that members of the trade union are without employment and that no adequate opportunities for their employment exist in the trade or industry, or section or district of trade or industry, in which the complainant would be likely to seek employment ".One wonders how a tribunal is to follow that in literal terms. I should have thought that here again we have all the factors of particular cases to be considered by a tribunal which can look at them all and relate one consideration to 1387 another without being told directly that they must have special regard to the matters enumerated in paragraphs (a) to (d) of the amendment.
I do not like the bias against people who have complaints. Surely Parliament exists to see that people with complaints have remedies provided and justice meted out to them, and it is a mistake to presuppose that people who have complaints must have the dice loaded against them. There are many genuine cases where a person is suffering a sense of injustice, is put to come degree of hardship and is seeking some remedy for his condition. I do not believe there is any serious risk of these provisions being exploited by many people. There may be individuals pursuing cases which are not perhaps worthy of favourable consideration, but that is for the tribunal to sort out.
I am, therefore, strongly in favour of getting the tribunal right and then giving them the discretion and right to exercise their judgment on the facts, circumstances and person brought before them. That is exactly what the Trades Union Congress have done with their own independent review body; they have not tied the hands of the noble Lords who serve on it. Why, then, should it be assumed that other tribunals must have their hands tied because they are less trustworthy? If this is being done for psychological reasons, then it seems that almost every tribunal in the land would need to have their hands held by statute law or by codes of conduct or by guidance given to them in order that they should satisfy their statutory responsibilities. I do not feel that all this is a desirable extension of the clause under consideration.
There are so many indefinable factors which are difficult to establish as matters of fact under these proposals that the position of the tribunal would be made much more difficult than it need be. Most of the question rests on what one might call the common sense of tribunals and their sense of responsibility and judgment, and for my part I should be prepared to leave it there.
§ 9.35 p.m.
§ Lord MACKAY of CLASHFERN
I should like to express hearty appreciation 1388 of the excellent intervention of the noble Lord, Lord Houghton of Sowerby. It is notable that when the noble Lord, Lord McCarthy, went through the various paragraphs of his amendment he sought to justify each paragraph by the very criterion of reasonableness which is set out. So what is the point? If the whole matter is comprehended in terms of reasonableness, why not leave the statute as proposed?
Paragraphs (a) to (c) of the amendment contain matters which might well be the subject of a code of practice on the closed shop. I am not nearly so certain about paragraph (d) which appears to have taken some time for the noble Lord to put together. It refers to conduct which would have been reprehensible had the person been a member of the trade union. I am not sure, for instance, how the noble Lord would deal with the situation of a man who was not a member and therefore did not pay the union dues for the three years. If he had been a member, presumably he should have paid; and if he had not paid, he would have been reasonably expelled. So to me paragraph (d) does not appear to make much sense. However, I concede that the general subject matter of paragraphs (a) to (c) would have a bearing on the decision to which the tribunal might come. But our view is that this matter is best left on the basis of the simple test of the tribunals to apply to the individual case, and I would ask your Lordships to accept that view.
§ Lord MCCARTHY
I am afraid that we cannot agree to withdraw the amendment. The noble and learned Lord said— as I predicted he would, and as indeed he was bound to say— that the Bill concerns itself with the notion of reasonableness; and why not leave it all to the tribunals to be reasonable. Well, I tried to state the reasons why we do not think that that is an acceptable answer. All I can say in addition is that in the first place, if this were to be the case, not all tribunals would come to the same decision. Probably various tribunals would come to quite different decisions, some of which would be appealed against and some of which would not, and to some extent whether the tribunals came to one particular decision rather than another would depend on the side members.
1389 One issue that we have not debated this evening, but which I presume we shall be debating subsequently, concerns the risk which the Government are running in bringing collective issues of this kind into the tribunals. I am one who passionately hopes that the existing members of the tribunals will continue to serve on those tribunals. I believe that they give great service, that the combination of a trade union representative and an employers' representative sitting under a legal chairman is a very good one and has worked extremely well.
Let us look back to the unfortunate time of the 1971 Industrial Relations Act when, for reasons that it considered to be good at the time, but which I personally did not support, the TUC took its members off the tribunals. I consider that that seriously undermined the operation of those tribunals at that time, and I passionately hope that nothing of this kind will happen again on this occasion. However, the Government must be aware 1390 that the more the tribunals are asked to consider collective issues of this kind, the more these unique institutions are put at risk. As I said, it depends on the side members. For that reason, if for no other, in regard to this highly contentious area I should like the Government to see the point of having some guidelines, and not leave the matter to be decided in terms of reasonableness or unreasonableness.
Finally, the tribunals will not be the end of the affair. Those who are not satisfied with the reasonableness of the tribunal can take the issue to the EAT. Indeed, they can take it up through the ordinary courts. I am not convinced that without the presence of the side members we shall in this context get the kind of interpretation of reasonableness that we should like to see, and for that reason I find myself unable to withdraw this amendment.
§ On Question, amendment negatived.1391
§ 9.40 p.m.
§ Lord ELWYN-JONES moved Amendment No. 14:
Page 4, line 39, at end insert—
("() When a tribunal finds that a complaint arises from facts in respect of which the complainant has commenced proceedings in the High Court, the tribunal shall not proceed with the complaint until those proceedings have been determined.").
§ The noble and learned Lord said: I think this is an amendment which can be taken shortly. It is intended to prevent contradictory or merely duplicated decisions in cases of unreasonable exclusion or compulsion from emanating in the High Court, on the one hand, and in industrial tribunals, on the other, in relation to what in effect will be the same matter. An aggrieved union member could well, on expulsion, challenge the rules of the union in the High Court as invalid because they are unreasonable or ultra vires, or constitute an infringement of the rules of natural justice. Clause 3 appears to give the complainant two bites at the cherry. Although the grounds of complaint are wider under Clause 3, the applicant may prefer to sue in the High Court rather than go to the industrial court because the latter may declare the expulsion void.
§ The scheme proposed in Clause 3 could easily lead to contrary decisions as between the High Court and the industrial tribunals, and since the clause directs the industrial tribunal to take into account the rules of the union it is, I submit, essential that in the case of doubt the High Court should rule on that issue first. I hope, accordingly, that this very sensible suggestion will meet with the approval of the Government and that at last we shall see some concession to what is being submitted from this side of the Committee. I beg to move.
§ Lord MACKAY of CLASHFERN
The end which the noble and learned Lord's amendment is designed to serve is, we agree, likely to be the end which would be reached, but we do not think the amendment is necessary in order to reach it. Regulations governing the tribunal's procedure presently give the tribunal discretion to stay proceedings, and certainly this would apply if the High Court was being asked to determine the 1392 same question. This discretion has been used under the current legislation when analogous questions of possible overlap between wrongful dismissal at common law and unfair dismissal under statute have arisen, and there is authority supporting the view that the line taken in this amendment was a proper line for the tribunal to take. Accordingly, our view is that the present discretion which the tribunal has to deal with the matter is adequate for this purpose, and it is not necessary to make a special rule to deal with this situation. In the light of that, I would ask the noble and learned Lord to be good enough to withdraw this amendment.
§ Lord ELWYN-JONES
Of course, I take the point that has been made by the noble and learned Lord the Lot d Advocate. I understand that the industrial tribunal regulations arc being revised now, and I hope that my intervention on this matter will at any rate draw attention to the importance of maintaining the point I was endeavouring to make. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9.45 p.m.
§ Lord ELWYN-JONES moved Amendment No. 15:
§ Page 5, line 2, leave out ("or fact ").
The noble and learned Lord said: Section (8) of Clause 3 provides:
An appeal shall lie to the Employment Appeal Tribunal on any question of law or fact arising from any decision of, or arising in any proceedings before, an industrial tribunal under this section ".
§ My amendment is to leave out the words "or fact" from subsection (8). It is very rare in employment law to find an appeal on a point of fact going from an industrial tribunal to the Employment Appeal Tribunal. I think the reason for that is that the industrial tribunal, comprised, as my noble friend Lord McCarthy said a moment ago, of two laymen with considerable industrial experience on both sides of industry, with a lawyer as chairman presiding over it, has proved to be a very effective and reliable body. It also has experience of the local situation. It has been thought, at any rate until now, that this is the best tribunal to determine facts in this field. The industrial tribunal is commonly described (and, I think, 1393 rightly so described, in the Court of Appeal and elsewhere) as the "industrial jury ". Industrial tribunals in the course of 1979 adjudicated in as many as 35, 253 cases of unfair dismissal. It is an important and well-tried jurisdiction.
Appeals from industrial tribunals can be made only on a point of law. I read with interest that when the Minister in another place, Mr. Mayhew, dealt with this point, he sought to justify provisions for a complainant complaining of unfair dismissal different from those for a complainant complaining of exclusion or expulsion from a trade union, in this way. He said:
Is there any reason why we should say to such a chap,
the "chap "being the complainant under the provisions of Clause 3—
' Sorry, you have to put up with what the industrial tribunal says, like it or not'? We came to the conclusion that there was no good reason and we could not justify it ".
§ This is very strange language, indeed. It was apparently good enough for the 35, 253 cases of men complaining of unfair dismissal. Are those to be regarded as unworthy matters, not worthy of a serious tribunal? It is a most distressing depreciation of industrial tribunals that that should be put in this way. I hope that there will be some opportunity for some Minister to denounce such folly as was uttered in another place; because it may well disturb the whole attitude of those who loyally and so effectively serve on industrial tribunals.
§ At present, with very limited exceptions, the Employment Appeal Tribunal deals solely with questions of law. As a result, it has not run into the serious trouble into which the National Industrial Relations Court ran between 1971 and 1974, in part, at least, because it had jurisdiction over questions of fact and of law. The Employment Appeal Tribunal now has very high standing both among employers and unions, and I should have expected that the Government would want to make sure that nothing was done to damage its standing and acceptability.
§ So far as I have been able to discover, the only provision allowing for an appeal to the EAT on the ground of fact is found in Section 136 of the Employment 1394 Protection (Consolidation) Act 1978, but that deals with appeals not from industrial tribunals but from the certifying officer under the Trade Union and Labour Relations Act 1974 regarding the registration of trade unions and Section 8 of the 1975 Act regarding the certification of independence of trade unions. That is a very different set-up indeed from an industrial tribunal. The certification officer is not a judicial body; he is an administrative officer of ACAS, not a lawyer. It is right, I venture to think, that his decision should be capable of appeal to a judicial tribunal both on grounds of fact and on grounds of law. It is already possible to appeal on the ground that an industrial tribunal has reached a conclusion which no tribunal properly instituted could have reached on the facts, so that particularly egregious cases of misapprehension of the facts and perversity in the decision can be dealt with in an appeal on a point of law. That would be retained if what I am moving in this amendment were to continue to exist.
§ The only analogy of appeal on fact, and one relied on by the Minister in another place, came from the criminal law in appeals from magistrates' courts to the Crown Court. But in the criminal law we are dealing with the liberty of the subject; and, quite rightly, safeguards are attached to criminal proceedings which are not thought apt in regard to civil matters. In industrial tribunals, we are dealing with civil claims decided by specialist tribunals. My submission is that the industrial tribunal is far more suitable to be the sole judge of facts in this field. Industrial tribunals, for instance, looking at it merely from the point of view of convenience and cost, sit in 70 centres spread around the country. They can take more account of local conditions in a particular factory than can the EAT, which rarely sits outside London. Access to the industrial tribunal is less expensive both for parties and for witnesses than travel to the EAT in London.
§ In any event, in my submission, there are strong grounds for saying that the EAT should not have jurisdiction over facts in this field. The charged atmosphere which is likely to surround these cases under Clause 3 could well lead to appeals on a large number of cases if appeal was allowed to the EAT on 1395 questions of fact. I believe that to be regrettable in principle, especially as it would multiply the at present largely unrecoverable costs of both sides, but also as a matter of practice.
§ We need to reduce the amount of litigation taking place and not to multiply it. Indeed, there have recently been many judicial pronouncements deprecating the multiplication of appeals in employment law cases, particularly on the grounds that issues of fact were being dressed up as questions of law. I shall not weary the Committee with the cases. They may be familiar to noble Lords who are accustomed to considering these matters. My submission is that subsection (8) of Clause 3, as it now stands, would be a recipe for far more appeals, for a multiplication of proceedings. I find it difficult to think of a proceeding which may serve the worthy purpose of providing more work for lawyers but can have no other conceivable useful purpose. I beg to move.
Earl De La WARR
The noble and learned Lord— and I am a little surprised that he has lent himself to this, although he has done it on the best legal grounds— is once more nibbling away at personal rights in favour of something which is protective towards the trade unions. This is something which is running right through the Opposition amendments. The industrial tribunal has a great reputation. Let us remember that we are seeking to protect the jobs of men whose livelihood will be at stake. I suggest that there can be very little wrong in leaning over backwards to make sure that justice is done. After all, there may be cases— I do not think this is too fanciful a suggestion— where further facts might come to light after the hearing by the industrial tribunal. I would suggest it would be right and in the spirit of this Bill to leave in the words "or fact ".
§ Lord WEDDERBURN of CHARLTON
Before the noble Earl resumes his seat, would he take his logic to extending the very unusual appeal on a question of fact from the tribunal to the appellate body, the Employment Appeal Tribunal, in cases of unfair dismissal by the employer'.' There, too, there might be a 1396 rare, or perhaps not so rare, case of injustice to an individual, an employee who has lost his livelihood through dismissal. Would he then extend his logic perhaps to an amendment that the finding of the industrial tribunal should be reviewed on fact in unfair dismissal cases? Why do these provisions always apply only to trade unions?
Earl De La WARR
I do not think they necessarily do, but we are not dealing with that particular issue at the moment. I should like to confine myself to the particular issue at stake, which was making sure that the individual who is in danger of losing his job had every opportunity of protection. The noble Lord may well be right: that his suggestion follows from what I have said. So be it, but that is not part of my contention at this time.
§ Lord MACKAY of CLASHFERN
I think I can say with the fullest possible conviction that the reason the Government proposed that there should lie an appeal on fact to the Employment Appeal Tribunal in these cases was not in order to provide work for lawyers but rather because they thought these particular cases were of sufficient importance to merit a special appeal procedure. As has been said, there were 35, 253 cases of unfair dismissal before the tribunals in 1979. It would obviously be impracticable for a rehearing to be available in the Employment Appeal Tribunal in such a tremendous number of cases, but one hopes that the cases under Clause 3 would be very much smaller in number even though they are potentially of great importance. As the noble Lord, Lord Wedderburn, has just said, in an unfair dismissal case if one has lost one's job it may have very serious continuing effects, depending on the situation. But the cases with which Clause 3 is concerned are cases in which people may well face the loss of their whole career or their chosen trade because of their exclusion or expulsion from a trade union in an industry or trade which is highly organised by the union concerned.
These cases appear to us to be of the greatest potential importance to the individual affected by the decision and 1397 also— surely this also is important— to the trade union as well. Indeed, the very emphasis which has been put on it from the other side shows how important it is from the trade union point of view. Accordingly, it seems to us that it is feasible in this case to give an opportunity for a re-hearing on fact. As the noble and learned Lord, Lord Elwyn-Jones, has pointed out, the distinction between law and fact in this area is not as clear-cut as one might think at first sight. He referred to cases where appeals on fact were in essence dressed up as appeals on law.
However, we think that these cases to which Clause 3 applies are of sufficient importance to permit of the possibility of a rehearing, and of course the rehearing would be presided over by a senior court judge with senior and expert lay assessors. It is not as though it is passing out of the hands of industrial tribunal laymen to the lawyers only, There are expert lay assessors taking part with the judge in the Employment Appeal Tribunal.
Perhaps it would not be out of place for me, since the noble and learned Lord mentioned the Employment Appeal Tribunal sitting only in London, to say that I think it sits in other parts of the United Kingdom, as well. It sits fairly regularly in Glasgow. So the answer we have to this is that, in our view, there are a small number of cases here affected, which are of particular importance to the individual on the one hand, and the union on the other, and the opportunity of a rehearing in the senior appeal tribunal is highly appropriate. Accordingly, I invite the noble and learned Lord to withdraw his amendment.
§ Lord ELWYN-JONES
I confess that I am deeply disappointed by that response to the serious case that I put. What is proposed in this part of the Bill is a vote of no confidence in industrial tribunals, an i I hope that that will become known, unless the Government are prepared to give way on this, The devastating question by my noble friend Lord Wedderburn to the noble Earl, Lord de la Warr, produced a very significant response. If an appeal on a question of fact is desirable for a man who is expelled 1398 from, or not allowed admission to, a union, might it not, in degree of gravity of consequence, be said to be equally desirable in the case of the man who has been sacked in circumstances where he, too, may never get another job? There are such things as black lists and other matters.
I implore the Government to look again at this, because it will become known up and down the country that there is this gross inequality between the treatment of those whom trade unions affront, or deal with unjustly, and employers who sack a man. This is such a blatant piece of Tory philosophy that I am amazed that it should be persisted in. I am always reluctant to embark on party politics in regard to matters of this kind, but I warn the Committee that unless something is done in this field the consequences could be very serious. I was hoping on this matter that, at the very least, there might be some undertaking to look at it again, because it is a very serious matter indeed. We have not yet had any concession from the Government Front Bench, even to consider these matters between now and Report stage.
§ Lord MACKAY of CLASHFERN
I think it is right that I should make it absolutely plain that the Government have every confidence in industrial tribunals. The fact that in certain cases of particular sensitivity there should be allowed a rehearing is in no way an insult to the industrial tribunals. The Employment Appeal Tribunal would have the tremendous advantage of having the views of the industrial tribunal before it. The Government have every confidence in industrial tribunals and consider that they are doing an excellent job. But we consider that in a case where the unions may have very important issues at stake, as would arise under Clause 3, it is right that they should have an opportunity of a rehearing, just as the individual would have in such cases.
§ 10.3 p.m.
§ On Question, Whether the said amendment (No. 15) shall be agreed to?
§ Their Lordships divided: Contents, 42; Not-Contents, 90.1399
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 10.12 p.m.
§ Lord MCCARTHY moved Amendment No. 16:
§ Page 5, line 5, leave out subsection (9).
The noble Lord said: This is by way of being a probing amendment and if one looks at subsection (9) one sees that it is a rather strange provision which deals, as it were, with automatic refusal or automatic expulsion assumed on delay. What the subsection says is,
if an application for membership of a trade union has been neither granted nor rejected before
the end of the period within which it might reasonably have been expected to be granted if it was to be granted, the application shall be treated as having been refused on the last day of that period, "—
that is, so far as admissions are concerned. Then it continues:
if under the rules of a trade union any person ceases to be a member of the union on the happening of an event specified in the rules, he shall be treated as having been expelled from the union".
§ That is so far as expulsion is concerned.
What we are seeking to ask the Government is whether they can give us any indication as to what they mean by the words,
reasonably have been expected to be granted
§ and not giving a sufficient time for ceasing to be a member of the union. We are dealing here with voluntary organisations in the sense that the great majority of the people who carry out the business of trade unions are volunteers, doing it part-time, and it is perfectly normal for there to be some delay, particularly in relation to exclusion, and especially, of course, if we are to include in this clause— and we have tabled an amendment to deal with this but unfortunately at this stage we do not know what the Government arc going to say about it— the normal circumstances of lapsing.
§ The fact is, as we shall be arguing on a subsequent amendment, that the overwhelming majority of people who leave trade unions cannot be said to have been expelled from those unions; in effect they lapse from a union. So under the rules of a trade union according to subsection (9) (b) they cease to be a member of the union, in the curious phraseology of the Bill— and I take it that is what it means— on the happening of an event specified in the rules, and the event specified in the rules will be exclusion on grounds of lapsing. The provisions of this Part of the Bill say that anyone who is excluded on grounds of lapsing shall be treated as having been expelled from the union. We wish to raise that subsequently as a separate issue but in the meantime on this Part of the Bill we are saying that it is unreasonable of the Government to put in here a clause of this kind which does not specify any period, any time, and which is bound to be interpreted in different ways by different tribunals.
§ I do not want to go through and rehearse the arguments that we have had previously about appealing to the courts, and so on, but we feel that if the Government cannot give us some undertaking as to what this means— it may be they are going to issue instructions— our amendment ought to be accepted. I beg to move.
§ Lord LYELL
We can very well understand the reasons which led the noble Lord, Lord McCarthy, and his noble friends to table this particular amendment. When we look at subsection (9) of Clause 3, and if we look particularly at paragraph (b) , it does seem a trifle arbitrary, but far from this paragraph being arbitrary we believe 1402 its removal would result in an arbitrary effect; it would do just the opposite and create a great deal of uncertainty.
The amendment moved by the noble Lord seeks to remove that particular paragraph. The removal of that paragraph would have the effect, through the consequent removal of paragraph (a), that it would be possible for an applicant to apply to join a union and, despite the lack of any response whatever from the union within any reasonable time, to have no right of complaint of unreasonable exclusion. This amendment would also have the effect, through the removal of paragraph (b), that where for any reason an individual's membership were to lapse without positive expulsion there would not be any right of complaint of unreasonable expulsion.
In general, the deletion of paragraph (b) would seem to raise the possibility that unions could amend their rules to expand the circumstances in which there was deemed (that is always a fascinating word to your Lordships, and particularly to the noble Lord, Lord McCarthy) to be an automatic cessation of membership without positive expulsion, which in this case would not create jurisdiction under the clause. This, of course, would defeat the whole object of the clause. In this particular clause we are speaking only about the jurisdiction of the tribunal, and, although the jurisdiction will arise in the way I have just suggested under subsection (9), it does not follow that tribunals— and I would remind your Lordships that these are experienced and respected bodies— will find that expulsions are unreasonable where, for example, a member has deliberately refused to pay his union dues. We think that is going a bit far. For these reasons, I would not be able to recommend this amendment to your Lordships.
§ Lord MCCARTHY
We are not satisfied by the reply of the noble Lord, but I do not want to press this to a Division. I think we want to record our disapproval in the usual way.
§ On Question, amendment negatived.
§ [Amendment No. 17 not moved.]1403
§ 10.19 p.m.
§ Lord WEDDERBURN of CHARLTON moved Amendment No. 18:
§ Page 5, line 11, after ("period ") insert ("provided that the applicant proves that he is qualified to be a member of that trade union in accordance with its rules ").
§ The noble Lord said: I will move this amendment very briefly. This amendment relates to the situation where the tribunal is instructed by Clause 3 (9) to treat an application for admission as a refused application where a reasonable time has run and no reply has been made. The case for the Government for subsection (9) has already been made, and even upon that basis I would hope that they would accept an amendment along these lines or give some assurance at Report stage.
§ When my noble friend or I, or anyone on this side, has suggested that some standards should be laid down so that trade unions know the basis upon which this very new jurisdiction operates in this more politicised area in which the tribunals have to operate than any in which they have operated before, the argument has always been that we do not need that standard or that guideline, it will all be judged according to what is reasonable; we do not need any guidelines at all.
§ In the particular case under consideration, surely that argument cannot apply because it is not a question of the reasonableness of the evidence. The only evidence to establish the refusal is the lapse of time. The submission in this amendment is that it surely cannot be right that the trade union should be open to a judgment against it only on that ground. If I take one case as an example it will be said to be a special case. I have a whole list of cases but, in view of the hour, I shall choose one and hope that the noble and learned Lord will not say that it is a special case.
§ The case that I take concerns the Amalgamated Union of Engineering Workers where, to enter the apprentice section one must, under the rules, prove that one has a three-year period of apprenticeship as the qualification. Were someone to apply for membership of that section of the union, and were it to happen through some mischance or negligence on the union's part that no reply was received, and it was adjudged that that was a refusal, 1404 surely it should not even be open to the tribunal to award compensation in favour of the claiment where he has not shown that he is even basically qualified to be a member of the section into which he claims admission.
§ The noble and learned Lord will no doubt tell me that in such a case the tribunal could be relied upon to be reasonable. However, I must say to him that passions are aroused in situations of this sort, in a closed shop situation, where it may be that the tribunal in some part of the country says, "Well, we don't think that this is a reasonable rule; we believe that what are called ' dilutees' should be allowed into the union against this rule ", and there may be a judgment of compensation merely on the fact of a lapse of time and no reply from the union.
§ This is, as it were, the ultimate amendment in the sense of testing the Government in terms of how far they are putting aside trade union rules and leaving the matter at large to the tribunals and— to repeat what my noble friend Lord McCarthy said— not merely to the tribunals, but also to the Employment Appeal Tribunal. As the noble and learned Lord then said, since any question of fact can, by many of us, easily be made into a question of law, surely we shall soon see a case in the Court of Appeal or in the House of Lords.
§ Whether the union wins or loses that case, it seems to me quite unjustifiable to put the union into this position, when all that has been proved against it is the lapse of a certain amount of time and it has not replied to the application for admission by someone who is manifestly totally unqualified to enter that area of the union. The noble and learned Lord will probably say that this is unnecessary and that we should leave it to the tribunal. Surely we have heard that so often this evening. There must come a point at which the Government are willing to tell the tribunals, "We know that you will do this anyway, but this is what we all want you to do."I beg to move.
§ Lord TORPH1CHEN
Is the noble Lord, Lord Wedderburn, saying that a union is incapable of looking at a man's application form, turning it down and writing a "Dear John" letter to the man?
§ Lord MACKAY of CLASHFERN
I should be glad to try to assist in this matter if I could, but I regret to say that I find it hard to understand the place of this proviso in this clause. The reason for the clause is to deal with the situation where no reply is received. This proviso seems to me to raise the kind of classical situation in which it would be very easy to give a reply. I find it difficult to know why the clause about time should be qualified by this proviso, as regards which it is easiest of all to give a reply because the person apparently, on the face of the matter, is not qualified. One would expect the union in that case to reply by return. So I find it very hard to see what this has to do with the subject matter of the clause.
If the noble Lord were suggesting some fixed time or something like that, I could see the point. But, with the greatest possible respect, this sort of proviso appears to me to be altogether out of place in this context. I am extremely sorry that I cannot see the matter more clearly from his point of view. I cannot advise the Committee to accept this amendment.
§ Lord WEDDERBURN of CHAR-TON
I always appreciate debating the amendment with the noble and learned Lord because, contrary perhaps to some earlier amendments, we come straight to the point and see where we disagree. In reply, I should like to put two points. First, it would not necessarily be a case where no reply had been received. The words of the clause are:where an application is neither granted nor rejected".There may well be a case where the union, perhaps because of the inquiry forms that have to be filled out and sent from union to union under the Bridlington procedures— and what the noble and learned Lord says is good law, but with respect I suggest that there is also good industrial common sense here— would not wish to grant or reject because it does not know what to do. It does not know whether the man is in arrears in the union which he has left; it does not know whether one of the other Bridlington principles will apply. However, it is true that there may be a case where no letter is sent in reply.
Therefore, there are many reasons why this clause might well come into play.
1406 I appreciate that the amendment which I move is one that relates to the reasonableness of the refusal and, therefore, conflates, as it were, the facts of refusal and the grounds of refusal. I am saying that, because of the industrial realities, there may be a case where, if a person is not qualified, someone could go to the High Court and obtain an injunction.
One of the extraordinary things about this clause, if I may say so with respect to those who drafted it, is that there is no correlation at all between the two jurisdictions. The union might be liable to compensation in the tribunal and, therefore, to that extent, be forced to take someone in who was an unqualified member under the rules, which would be a breach of the rules, and another member could then go and obtain an injunction in the High Court. It is a most extraordinary situation.
The complainant does not have to do much under this amendment. He has only to show that he is basically qualified to be a member in order to proceed with his case, and if the union does nothing then, perhaps it will lose the case. But for it to lose the case when he has not even shown that he is qualified within the rules, tests the Government. In a situation where the complainant is capable— the noble and learned Lord the Lord Chancellor corrects me, and I stand corrected— of winning the case, where the trade union is capable of losing the case; in a situation where he has not even shown, and is not called upon to show, that he even falls within the rules at all— how can noble Lords expect the trade union movement to accept that its rules are being treated seriously when even the small and tiny ledge of a platform of this kind is not built into the Bill? I shall not press a Division in view of the hour but, unless we can have some assurance on this, it is a matter to which we must surely return on Report. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 10.27 p.m.
Lord McCARTHY moved Amendment No. 19:
Page 5, line 14, after ("rules ") insert ("other than the non-payment of any subscription owing and due to the union.").
§ The noble Lord said: This is the last of this particular group of amendments in which we have tried, without success, to convert the Government to our idea that there ought to be some kind of specification in this part of the Bill concerning the area in which the tribunals are to work. This I say without fear of contradiction is the single strongest limb of our argument. In this amendment we are saying that page 5, line 14, should be added to, so that the assumption of automatic exclusion after a period of time, which is the result of subsection (9), should not apply to those who have been excluded by trade unions for the non-payment of subscriptions. In other words, in simple terms, we are suggesting that the nonpayment of subscriptions— what is known in the trade union world as "lapsings"— should be allowed a different category from other forms of exclusion.
§ It is the most facile of legalism to argue that exclusion on grounds of non-payment of dues is the same as expulsion. Expulsion occurs for some offence under the rules of the union, or because of wrongful recruitment, or for some other reason. It is not an automatic affair. But every trade union has provisions for automatic exclusion.
§ There are of course procedures governing automatic exclusion, and the most famous of all trade union cases, Bonsor v. The Musicians'' Union, made it clear that trade unions are not entitled, even under lapsing circumstances, to bring about lapsing without carrying out the full rigour of the rules; so the branch secretary who cancelled Mr. Bonsor's subscription was not entitled to do so because the court took the view that that could be done only by the branch committee.
§ So we are not going outside the realm of the law here. We are saying that lapsing is a special case. We are saying that every organisation is entitled to cancel subscriptions when people do not keep up their subscriptions. We are saying that to introduce a special provision whereby somebody who has lapsed automatically by failure of subscriptions will legally be assumed to have been expelled from the union is a violation of the realities of industrial life which will be deeply resented by rank and file trade unionists, and for that reason I would press the amendment very strongly on the Government.1408
§ Lord TORPHICHEN
Perhaps I may jump in briefly with both feet, probably putting them right in it, and ask the noble Lord, Lord McCarthy, how he would judge a case in which the union dues were paid intermittently. For example, if a man was at sea five years ago, being a member of the National Union of Seamen, and had been ashore for a time and had not paid his subscription— because he was in a shore job— could he return to sea without having to pay five years' back subscriptions without being caught by the amendment?
§ Lord MCCARTHY
The noble Lord has chosen a rather poor example; we have here a pre-entry closed shop where there is a check-off. If such a man ran out— which is the term used— he could, by the payment of two weeks' subscription, re-enter the union.
Earl DE LA WARR
I feel inclined to advise my noble friend to consider the amendment sympathetically. The case for it has been well enough argued for me simply to add that the amendment seems to be all right and should be examined by the Government.
§ Lord LYELL
The noble Lord, Lord McCarthy, opened his presentation of the amendment with real fire and vehemence but lost me when he described this as a different category. He did not say whether the man had been expelled, but seemed to leave the poor person in limbo. He referred to inexact legalism, which I would describe as a sort of interesting ritual dance, but it still seemed to leave the unfortunate person, through the lapsing of the payment of his subscription for what might have been very valid reasons, in a sort of limbo, and let us not forget that that is the person who is the subject of grievance.
Nevertheless, we believe there could easily be a loophole here and, thus, a problem. It seems that the noble Lord has found what I would call a limbo or no-man's land where somebody has ceased to be a member of a union through the non-payment or lapsing of subscriptions, although I wonder whether the noble Lord thinks that in most cases somebody who has lapsed through non-payment of subscriptions can rejoin simply by the payment of two or four weeks'— or, for that matter, any arbitrary number of 1409 weeks'— contributions. I wonder whether it is as simple as that. However, reservations have been expressed all around the Chamber, in particular by my noble friend Lord De La Warr, and for that reason we shall take away the amendment and consider it, with the hope of having something to submit on Report.
§ Lord MCCARTHY
I am very glad that the noble Lord, Lord Lyell, is to take away the amendment and consider it. I hope that when he considers it he will read what I have said and will understand the difference between lapsing and expulsion. That is the issue that we are talking about. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
The Earl of GOWRIE
I do not know whether this might be a convenient moment for us to break the Committee stage. So if it is your Lordships' wish, I would beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.