The Closed Shop (Hansard, 8 October 1981)

§ Lord Orr-Ewing
My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.

§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, the Government are currently considering further changes and will announce their proposals in due course.

§ Lord Orr-Ewing
My Lords, since the present Government will be most reluctant to bring in a Bill to give retrospective justice to the closed shop victims, have they noted the fact that, according to an article by Helen Jackson in The Times on 29th August, as many as 400 people have been sacked and a number of these have suffered very greatly? Will the Government consider ex gratia payments in cases of real and proven hardship arising from the McCarthy/Wedderburn Acts of the 1974–76 period?

§ The Lord Chancellor
My Lords, the Question related to changes in the law and I think that the priority must be to deal with the situation set up in relation to the three current cases before the European Court, but I shall take careful note of what my noble friend has said and see that it is brought to the attention of my right honourable friend.

Viscount De L'Isle
My Lords, since the Court of Human Rights in Strasbourg decided under Article 50 of the Convention that the question of material losses, legal expenses, non-material damage, both pecuniary 190 and moral, suffered should be referred to the Chamber of seven judges, will the noble and learned Lord undertake to secure that the sums due should be paid in full once the quantum has been decided, without the expensive postponements to which the victims have been subjected in the course of five years' proceedings?

§ The Lord Chancellor
My Lords, I am terribly sorry that I did not hear every word that my noble and gallant friend said, and I have not read the full judgment of the court in detail. I understand that it gave us until 13th October, which is only next week, to state in principle whether we would be prepared to enter into a friendly settlement. I am informed by my right honourable friend that that deadline will be met, and I think that my noble and gallant friend can be reasonably hopeful. But of course in the absence of agreement the matter would have to be decided by the court itself.

§ Lord Rochester
My Lords, is it still the Government's view that legislation on the closed shop should be directed towards remedying identified abuses of the existing law, rather than immediately outlawing the closed shop altogether? In that connection since our debates on this subject six months ago have there come to light any further cases of employers making it a retrospective requirement that their employees should be trade union members?

§ The Lord Chancellor
My Lords, as regards the earlier part of the noble Lord's supplementary question, I think that, with respect, I must ask him to await any Government statement that might be forthcoming. As the noble Lord knows, this is the season of the year when the Queen's Speech is coming up and I ought not to anticipate its contents, if indeed I knew them. But presumably there will be a statement reasonably early in the new Session. As regards the latter part of the noble Lord's supplementary question, it was only within minutes of coming into the Chamber that I received from him notice that he was likely to ask it, and, if I may, I shall make inquiries and write to him.

§ Lord McCarthy
My Lords, does the noble and learned Lord agree that so far as the Question asked by the noble Lord, Lord Orr-Ewing, is concerned, there can be no case for altering the present law since the European Court took a decision on the basis of the previous law, which the Government have now changed and which, I understand, the Secretary of State said, on the publication of the European Court's decision, would in fact cover the case very well?

§ The Lord Chancellor
My Lords, it is of course true that I warned the previous Government—I see the noble and learned Lord sitting almost exactly in the place from which I rose when I warned him—that they would be in dead trouble with the European Court if they went on with their 1976 Act, and I proved to be right on that occasion. I do not wholly accept what I thought to be the rather simplistic view put forward by the noble Lord who has just asked a supplementary question. We did of course remedy the more obvious abuse in our 1980 legislation, but that does not mean 191 that further changes might not be desirable in the light of the reaction to our Green Paper, for instance. I should prefer to leave the question open until we can debate the matter more fully.

§ Lord Molloy
My Lords, is it not a fact that the changes in recent industrial legislation have meant that many working men and women find it much more difficult than hitherto, because of the change of the law by this Government, to obtain justice at industrial tribunals? For example, in some instances they have to wait a year, whereas hitherto they had to wait six months. The number of these cases runs into hundreds, whereas the case referred to the European Court of Human Rights involved two people. My last point is this. I am sure that the noble and learned Lord the Lord Chancellor would agree that they made it specific in their report that in no way were they judging the rights or wrongs of the closed shop.

§ The Lord Chancellor
My Lords, part of that question has nothing whatever to do with the Question on the Order Paper. There were three railwaymen, unless I am mistaken, and not two, in the case recently before the court. It is true that they were very careful not to prejudge in either direction the legality of the closed shop as such under the European convention. They left it open to themselves to come to either conclusion in the future when the point directly arises, if it does. So far as I understand the summaries of the judgment that I have seen, they placed their ruling in the particular case on the words of the convention and the particular circumstances of the case, but that does not at all mean (if I have the sense of the judgment right) either that they will or that they will not outlaw the closed shop as such.

Viscount St. Davids
My Lords, would the noble Lord not agree that one of the main troubles of this closed shop business is that many of the unions that operate a closed shop have political opinions, views and objects; and would there not be something to be said for allowing the closed shop in areas where such political views were not aired? In particular, of course, I am thinking of student unions, and others. Is there not some ground for saying that closed shops might possibly not be legal, indeed, unless it were possible for people to join them without being forced to partake in views with which they disagreed?

§ The Lord Chancellor
My Lords, I think this is precisely the sort of speculation which we ought to avoid until the Government make their statement. I think that what I can say is that of the three cases which came before the European Court, I understand that in two of them, but not in the third, the complainants had objection to the policies of the group of unions in one respect or another. But in the third they simply thought that the union was an incompetent and inefficient body which did not look after its members.

§ Lord Elwyn-Jones
My Lords, in relation to the words of admonition which the noble and learned Lord addressed towards me when he was in this place, 192 is it not the case that Mr. Fawcett, the British member of the Commission, who has had long experience in these matters, strongly agreed with my approach and not with the noble and learned Lord's; and (although I am not sure about this) was that not also the position of the British member of the court? I am not as certain about that as I am about the first point I made.

§ The Lord Chancellor
My Lords, whatever he thought—I am afraid I do not know what the answer is—the majority of the court, 18 to 3, decided that I was right and that the noble and learned Lord was wrong.

§ Lord Campbell of Alloway
My Lords, would my noble and learned friend the Lord Chancellor not agree that this majority judgment of the European Court of Human Rights, taken as it was on a stale statute which no longer represents our law and taken as it was in relation to a situation where the employers implemented the closed shop practice at the instigation of the union, really affords no assistance to our future developing law, which in any event surely must have some regard to the situation where certain employers implement the closed shop contrary to the wishes of the trade unions? Furthermore, would my noble and learned friend the Lord Chancellor not agree that the judgments of this court do not easily adapt into the form of a United Kingdom statute?

§ The Lord Chancellor
My Lords, I know my noble friend's very wide learning on this branch of the law and also his very valuable experience in it. It is of course true that the judgments were on the 1976 statute and not on the present law of the United Kingdom. I think, therefore, that one has to read the judgments with very great care; and from the summaries I have seen I do not think they are very easily summarised with accuracy. I think we are wise to be careful before we make any definite proposals, especially, as I say, with the new Session coming up; and I would ask my noble friend to remember that my right honourable friend, to whom I will pass on his very valuable comments, has been in office only a very few days and is faced with a very wide range of highly complex and controversial questions. I think he must have time to think about this and to advise the rest of his colleagues as to how he should like us to act.

§ Lord Orr-Ewing
My Lords, may I ask my noble and learned friend whether he understands that we have taken some comfort from his flexibility of mind and of his showing great sympathy that future legislation may be adjusted to make things clearer than they are at the moment should that be necessary after reading the judgment; but that for most people what is now important is speed in satisfying with compassion the three railwaymen who have been waiting for five years? I have a tragic letter in my hand from the Frost family who have suffered severely. If my noble and learned friend is aware of these facts, will he speed up the scheme?

§ The Lord Chancellor
My Lords, I am grateful for what my noble friend has said. I will pass his com 193 ments on to my right honourable friend who, I know, has at least as warm a heart as I have.