Lords Sitting of 6 July 1982

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop Carlisle.

Isle of Man: Aircraft Passenger Security
Lord Strathcarron: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government why the security authorities should require three days to clear a British passenger to the Isle of Man travelling in a British registered private aircraft with a British pilot when the same passenger could travel by public transport without question.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, the minimum period of notice required for applications to fly from airfields not designated under Prevention of Terrorism legislation is 24 hours. All passengers travelling to the Isle of Man by public or private transport are liable to examination by police under the Prevention of Terrorism (Temporary Provisions) Act 1976.
Lord Strathcarron: My Lords, I thank my noble friend for his reply, but would be not agree that the filing of a flight plan is sufficient security in itself, bearing in mind that the progress of the aircraft is monitored through various control zones, and there is a security check at Ronaldsway at the other end in any case? May I further ask my noble friend whether he does not agree that a pilot indulging in some nefarious deed would not file a flight plan and would not go and inform security, but would just fly at 100 feet under the radar cover to his designation? Therefore, does my noble friend not consider the security arrangements at this end to be superfluous?
Lord Elton: My Lords, as to the first part of my noble friend's question, we are dealing here with the common travel area formed by Great Britain, the Channel Islands, the Republic of Ireland, Northern Ireland and the Isle of Man, in which no immigration regulations as apply to other destinations exist, and in view of the threat posed by the free movement of terrorists within this area it was decided back in 1974 to legislate to bring that travel under the purview of examining officers.
As to the second part of my noble friend's question, it is not simply the pilot that the authorities are concerned with; it is the passengers, who may appear to perfectly ordinary pilots starting from non-scheduled airports to be perfectly innocent people but who may have succeeded in deceiving those people. In view of the level of the terrorist threat, I think your Lordships would agree that it is proper that this traffic should be kept under purview.
Lord Strathcarron: My Lords, I thank my noble friend for his explanation. Would he please bear in mind that it is possible to fly in a private aircraft with passengers all over Western Europe, and you merely present the passengers' passports at the other end; you do not have to notify anybody as to their identity before you leave? And would be bear in mind that the Isle of Man is not exactly Ireland; it is an independent island on the way, so to speak?
Lord Elton: My Lords, it is the phrase, "in the way", which sums up the way", in which I shall bear this in mind.

The Acheson Report: Primary Health Care
2.40 p.m.
Lord Hunter of Newington: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what steps they propose to take to implement the Acheson Report on Primary Health Care in inner London.
Lord Lyell: My Lords, we are actively considering the Acheson Report in the light of the many comments which we have received on it, and we hope to make an announcement soon.
Lord Hunter of Newington: My Lords, in thanking the noble Lord the Minister for that reply, may I ask that steps be taken, as I am sure they may well be, to bring the report to the attention of the new district authorities? Also perhaps one would like to know whether the reorganisation of the administration of the National Health Service will improve the situation in London, particularly in view of the Written Answer given in another place by the Minister of State for Health and Social Security on 17th November,
"that establishing family practitioner committees in their own right with powers to engage their own staff, this is likely to facilitate the development of primary care services and lead to increased efficiency in the administration of family practitioner services".—(official Report, Commons, col. 112.)
One cannot but remember that the Acheson Committee believed that an effective integration of services was required for effective primary care.
Lord Lyell: My Lords, as far as the noble Lord's first question is concerned, indeed we shall bring the report to the attention of regional health authorities and any other interested bodies where they are not already aware of the report with all its findings and conclusions. We believe that they are very well aware of that.
So far as the noble Lord's second question is concerned, I take the quotation that he has made; I note it, but I would not be able to comment on it in detail at this stage. I am sure the noble Lord and indeed your Lordships will be aware of the five main recommendations contained in the Acheson Report, which are all very closely concerned with primary health care and community care in urban areas.
Lord Wells-Pestell: My Lords, may I ask the noble Lord the Minister whether he will indicate to the House what steps the Government have taken to secure comments and observations on this report? I rather got the impression from the noble Lord's reply to my noble friend that the Government were prepared to consider any comments and observations, but are the Government taking steps to secure comments and observations from informed individuals and informed groups?
Lord Lyell: My Lords, I hope that there is not much difference between the reply which I gave to the noble Lord, Lord Hunter of Newington, and what the Government are doing. I am sure that the noble Lord, Lord Wells-Pestell, will be pleased to know that both the Acheson Report and indeed the associated Harding Report have been very actively considered together, and so far we have received comments from 64 different and important organisations on the Acheson Report, and over 100 on the associated report by Dr. Harding.
Baroness Faithfull: My Lords, in that case I should like to ask my noble friend the Minister whether an approach has been made on a co-ordinated basis, and whether the social services together with the health authorities have been approached on the implementation of this report?
Lord Lyell: My Lords, I am not aware of any specially co-ordinated approach, but I am given to understand that there have been informal discussions with the General Medical Services Council, and over 50 of the recommendations in the Acheson Report relate to pay and conditions of service for general practitioners. Indeed, discussions have concentrated on various issues such as retirement age for general practitioners together with various other major issues which are found in the Acheson Report. There have also been discussions with regional nursing officers on various other proposals for improvements in primary health care nursing.
Lord Cledwyn of Penrhos: My Lords, there is a certain uncharacteristic lack of clarity about the noble Lord's replies to this Question. Can he say clearly to the House that an initiative has been taken by his right honourable friend? He talks about letters having been received—40 letters from here and 30 letters from there. Are those letters in response to a request from his right honourable friend? Is it not necessary, if co-ordination is to take place, that the co-ordinator should be the responsible Minister? Can he say that, in fact, the initiatives taken from above are not in some haphazard way from below?
Lord Lyell: My Lords, the noble Lord attempts to flatter me for my first attempt at replying for this particular sector of the Government. I hope that I have been nothing less than truthful. I hope that I have been as clear as I can be. Indeed, the noble Lord mentioned over 40 letters. I said 64 letters and 100 letters, and so I hope that I was clear on that particular aspect. No, we have received the report and my
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honourable friend in another place, if I may quote him, said:
"This report not only points out the special problems in London, but also shows ways to improve London's health services".
He continued:
"I am sure that this is the way to get a better medical service to the people of London".
My honourable friend is very willing to receive communications and, indeed, observations and views. I hope your Lordships will agree that it is not necessary for my honourable friend to go out actively to seek responses. Indeed, 164 replies for two reports is nothing short of active response by those interested.
Baroness Gardner of Parkes: My Lords, would my noble friend confirm that in all consideration of health matters dentistry is also fully considered? I must declare an interest here as an inner London practitioner. Would my noble friend confirm that medicine cannot be viewed separately from the other parts of the health service as regards primary care?
Lord Lyell: My Lords, I am not aware as to whether dentistry is covered by the Acheson Report or, indeed, by the definition of "primary health or community care". I am afraid that I am not able to answer that point. Perhaps I may discover the answer and write to my noble friend.
Lord Wells-Pestell: My Lords, can the Minister tell the House whether the Government have accepted in principle the recommendations and observations of the committee?
Lord Lyell: My Lords, perhaps I could not go so far as to say that we have accepted every comma and every dot in each of the reports, but I could say—I hope that the noble Lord and the House will accept this —that we have welcomed the reports.

Wine: Trading Standards
2.48 p.m.
Lord Chelwood: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government when they received the report of the Local Authorities Coordinating Body on Trading Standards on the subject of prescribed quantities of wine sold by the glass; which bodies consulted favoured legislation, which expressed serious reservations, and which were opposed; and whether they will now reconsider using their powers under the Weights and Measures Act 1963 to introduce an order.
Lord Lyell: My Lords, the report in question was received by my honourable friend the Minister for Consumer Affairs only on 24th June this year. I am sure your Lordships will understand that he is now considering its contents and the suggestion for statutory control.
Lord Chelwood: My Lords, is it correct to say that there was a surprising consensus of view among the 14 thoroughly representative consumer and trade organisations and the local authority associations consulted and that only two out of that 14 had any reservations at all? Did they not also conclude that the time is now ripe for legislation in this field, in a country which last year consumed 105million gallons of wine, and that legislation should be introduced on the same broad lines as already exists, thoroughly successfully, in, for example, Austria, Germany and France?
Lord Lyell: My Lords, as far as drinking in Austria Germany and France is concerned, I shall not weary your Lordships with my personal, or indeed governmental, observations on measurements or drinking. But as far as my noble friend's first question is concerned, I am sure he will know that the LACOTS conclusion was that this trade, together with the spirit trade, should now be subject—to quote their words—
" to some form of regulation".
Certainly the Government believe that regulation and enforcement is a particularly difficult area in this liquid trade (if we can call it such) since, I am sure your Lordships are aware, wines tend to vary with quality. This also has some bearing not just on the measure of wine but also on the price that is paid.
Lord Ardwick: My Lords, should there not also be a standard measure for the elastic restaurant carafe, which can vary from a niggardly half-litre to a full litre —a dangerously generous full litre?
Lord Lyell: My Lords, unlike the noble Lord, very few of us seem to find what he calls a generous full litre. I would confirm to him that under the Weights and Measures (Sale of Wine) Order 1976 in paragraph 2 it states that wine may only be sold in prepacked carafes in one of six measures—including, indeed, a half litre. If the noble Lord can get a generous measure of a litre, he is indeed lucky. Wine may be sold in 25 centilitres, 50 centilitres—that is his half litre—75 centilitres, one litre, or two imperial measures of 10 or 20 fluid ounces.
Lord Ardwick: My Lords, does this apply to restaurants as well as to retailers?
Lord Lyell: My Lords, it applies anywhere if you sell by carafe—retail, wholesale, restaurants, your Lordships' House. It applies in all of them.
Baroness Trumpington: My Lords, can my noble friend say whether sherry comes into the report? Does he not agree that price as well as quality and quantity come into this? Is he aware that British Rail serves 14 glasses of sherry out of one bottle, which is the equivalent of over £13 a bottle?
Lord Lyell: My Lords, in my opinion my noble friend is extremely lucky if she can obtain sherry on British Rail. I congratulate her on her good fortune. However, I am not able to ascertain whether sherry, wine or derivates thereof are covered, first, by the Sale of Wine Order 1976 or, indeed, by other prescribed metric quantities for wine. But I understand that the
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prepackaging and labelling of wine and grape must is detailed in the EEC requirements. Whether sherry, its derivatives or the liquid that my noble friend was able to purchase on British Rail come within that definition, I am not sure, but I shall certainly ascertain the answer and write to her.
Lord Winstanley: My Lords, while fully supporting the noble Lord, Lord Chelwood, in this matter, is the Minister aware that the undoubted increase in wine drinking by the glass—to which his noble friend has drawn attention—is due in part at least to an increasing realisation by beer drinkers that they are being defrauded of upwards £250,000 a year in short measure? If they are now to understand that they are being similarly defrauded in respect of wine, is it not high time that the Government acted to deal with both these abuses?
Would it not be very simple, administratively, to lay down a fixed measure for a glass of wine, as it is equally simply to phase out the brimful measure of beer and make the use of the oversized marked glass obligatory?
Lord Lyell: My Lords, I am sure that the noble Lord was aware of my earlier reply, that wine is sold in varying qualities and that, of course, the price paid —the noble Lord used the phrase "being defauded"—can vary, or perhaps not, according to the opinion of the drinker and according to the quality of wine that the drinker thinks he is paying for or would wish to pay for.
On measurements and regulatory sizes, I am sure that the noble Lord and the House will be aware that it is extremely difficult to measure wine out of the bottle with the aid of what are customarily known as optic measurements. I am told that to upend a bottle of wine tends to destroy much of the quality, at least for drinkers of quality wine, to whom the noble Lord is referring.
Lord Derwent: My Lords, is it not abundantly clear by now that this is one of the most important questions that has come before your Lordships' House?
Lord Lyell: My Lords, I am most grateful to my noble friend for his comment and I am proud to attempt to answer it.
Lord Glenkinglas: My Lords, will my noble friend not agree, as he has the good fortune to come from a better country than England, that if you have to drink whisky in this country you can hardly see it at the bottom of a glass. Will he not agree that if we are talking about drinking high quality wines, they are not drunk by the glass, they are drunk by the bottle, the magnum or the jeroboam? We are talking about reasonable wine at a sensible price in a sensible measure, a known measure.
Lord Lyell: My Lords, I am ever flattered by my noble compatriot and friend that, coming from one side of the border, we drink reasonably and sensibly. Indeed, many of my compatriots do not have that reputation, but, as he points out, I note that reasonable consumption of reasonable wine should be able to be

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regulated or measured in some way. Indeed, the Government are looking into a reasonable method of achieving regulation of sales of wine by the glass. It requires much consultation and, indeed, it is very difficult to obtain a reasonable measure of what constitutes a glass. I understand that there are two measures: the Anglo-glass and the Euro-glass. The Euro-glass, naturally, is considerably larger than the other one. We have not yet come to a "Scotto-glass", but we shall come to that with another question.
Lord Wells-Pestell: My Lords, are the Government satisfied that proper measures are being employed in your Lordships' House?
Lord Lyell: My Lords, I shall look into that and write to the noble Lord.
Lord Chelwood: My Lords, would my noble friend be very kind and publish in the Official Report the very brief conclusion reached by LACOTS in the report submitted to the Minister? Secondly, would he, his Minister, and perhaps the Minister's PPS, who succeeded me in Lewes, like to come on a short pub crawl with me so that I can convince them of the error of their ways?
Lord Lyell: My Lords, indeed, I should be most grateful to take up any invitation from my noble friend, but in a purely personal capacity. I would not wish to commit the Government to any such functions. I shall attempt to publish any conclusions in the Official Report.

China: Control of Strategic Exports
2.56 p.m.
Lord Rhodes: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have come to a conclusion about removing China from Cocom procedures and thus changing the status of China from that of a member of the Eastern bloc to that of a friendly nation.
The Minister of State, Foreign and Commonwealth Office (Lord Belstead): My Lords, at present it remains the policy of Her Majesty's Government that the export of strategic items to China should be subject to Cocom control. However, a wide range of British defence equipment is available to the Chinese within this framework.
Lord Rhodes: My Lords, is the Minister aware that there is very little difference between what he has said this afternoon and what he said on 19th May? Further, is he aware that during the month of June there has been a dramatic change in the attitude of the United States of America towards this question, to their advantage and to our detriment?
Lord Belstead: My Lords, if it follows what the noble Lord, Lord Rhodes says, the attitude of the United States of America will, no doubt, be made evident within the context of Cocom. However, as things stand, it is necessary for there to be unanimous agreement among our Cocom partners for China to be removed from the list of proscribed recipients. If I may repeat what I know I have said before to the noble Lord, British views about Chinese interests have been put forcefully to our Cocom partners and in Cocom we have supported a flexible approach towards China to give due weight to China's relations with other countries.
Lord Kennet: My Lords, can the noble Lord say which of our Cocom partners is resisting liberalisation?
Lord Belstead: No, my Lords. The negotiations, or at least the exchanges, within Cocom are confidential.
Baroness Llewelyn-Davies of Hastoe: My Lords, in view of the initially disappointing response of the Minister, although he did explain later that we were pressing our partners, have the Government really taken on board the dramatic difference in the United States' attitude to this, that they are now proposing all kinds of trade ties with the Chinese—scientific, technological and educational exchanges-and that we may be in danger of losing the very great advantages which we first had in making advances to the Chinese before the Americans?
Lord Belstead: My Lords, I understand the concern of the noble Baroness, which she has expressed before, but I would remind the House that the United States —as indeed, all the other Cocom partners—is operating within the Cocom context if it is trading with those countries which are listed as the proscribed recipients of goods. I think we should just add that in practice Cocom procedures are at present probably less of a restraint to British defence sales to China than current Chinese economic retrenchment or readjustment policies. I think that it is right just to bear that in mind.
Lord Avebury: My Lords, does the Minister agree that in the long term there could be tremendous opportunities for both China and Britain if there could be closer co-operation between our two countries in the field of information technology, and that some initiatives would be particularly welcome if they could be taken within Information Technology Year, 1982? Does the Minister know what steps would have to be taken for us to be able to escape from the constraints that Cocom imposes on trade in hardware and software respectively?
Lord Belstead: My Lords, the answer to that question is that one of the periodic reviews of the Cocom strategic exports embargo lists is going to start in October. Our objectives will be to revise the embargo lists in such a way as to safeguard our, and Western, strategic interests, but with the minimum necessary disturbance to legitimate trade.
Lord Davies of Leek: My Lords, is the noble Lord aware that that expression he has just used, to revise the embargo lists, is a vital necessity to Britain's trade? Is he further aware that I myself can vouch that we lost a contract for rolling stock in China because rolling stock was put on the embargo lists? Secondly, is he further aware that the Chinese Ministers have now said that where they buy they have to sell? Last, is he further aware that the third greatest dealing nation with China is the United States of America, as vouchsafed this week by the National Council for USA-China trade? When is Britain going to wake up and play a part and stop talking of the "Falklands spirit", but build up the chances of international trade?
Lord Belstead: My Lords, the essence of the noble Lord's question is that the existence of the lists is detrimental to our trading interests. I should like to give the noble Lord an assurance that efforts are being made to speed up the handling of case work in order to provide decisions more rapidly. A British proposal to this end is currently under consideration in Cocom.
Lord Morris: My Lords, may I ask my noble friend whether he would consider carefully on behalf of Her Majesty's Government the advice given to him by his officials in view of his right honourable friend the Prime Minister's impending visit in September to China, and to do something in the direction suggested by the noble Lord, Lord Rhodes, because I am convinced that this would undoubtedly give a fillip to his right honourable friend's visit at that time?
Lord Belstead: My Lords, the forthcoming visit of my right honourable friend the Prime Minister reflects the long history of friendship between the British and Chinese peoples. I should just like to add to my noble friend Lord Morris, that of course we keep our policies, including the policy we are discussing this afternoon, towards China under constant review.
Lord Jenkins of Putney: My Lords, may I suggest to the noble Lord that he recommends his colleagues —
Several noble Lords: No!
Lord Jenkins of Putney: My Lords, is the noble Lord aware that I am about to suggest that he should exercise with his colleagues a modicum of care in defence sales to China, as, with the Argentine, he may never know who they are going to be used against?
Lord Belstead: My Lords, our defence exchanges with China have developed over the last few years and there has been a series of high level visits in each direction. The sale of defence equipment forms a part of our general trading relationships. But, in considering defence sales on a case-by-case basis, strategic implications are always kept in mind.
Lord Mackie of Benshie: My Lords, is the Minister making it clear to the House that the Government would in fact like to see China removed from the lists, and that the only thing that prevents this is the attitude of the other signatories to that agreement?
Lord Belstead: No, my Lords, I am not saying that, first of all, because the exchanges within Cocom are of a confidential nature, and, secondly, because what I have said is that within the context of Cocom we are supporting a flexible approach towards trade with China.
Lord Bruce of Donington: My Lords, is the noble Lord aware that his replies are a little unsatisfactory? Is he aware that there has been unequivocal support from Her Majesty's Government for some time for Chinese communism? Surely it would be wise in the circumstances for the opportunities to be given to British exporters in following the political stance that the Government have taken?
Lord Belstead: My Lords, the Government believe that the opportunities for British exporters within the context of the Cocom rules are very considerable. I would repeat that, in practice, Cocom procedures are at present probably less of a restraint to China, certainly so far as defence sales are concerned, than current Chinese economic retrenchment or readjustment policies.
Lord Stewart of Fulham: My Lords, before the Prime Minister visits China—
The Lord Privy Seal (Baroness Young): My Lords, we have now had nearly nine minutes on this Question, and may I suggest that we take the noble Lord, Lord Stewart, who has been trying to get in for some time, and then move on to the next business.
Lord Stewart of Fulham: My Lords, before the Prime Minister visits China, could she be advised to stop using the word "Marxist" as a term of abuse?
Lord Belstead: My Lords, as I said, the forthcoming visit of my right honourable friend the Prime Minister reflects a long history of friendship between the British and Chinese peoples. I know that my right honourable friend is looking forward to the visit, and so I believe are the Chinese.

Future Business
Lord Denham: My Lords, it may be for the convenience of the House if I announce that dinner will be available at the usual time this evening. The Committee stage of the Employment Bill will be adjourned at approximately 7 p.m. for a short period. During this adjournment the Third Reading of the Cinematograph (Amendment) Bill will be taken.;
It may also be for the convenience of the House if I announce that the House will definitely sit this Friday, 9th July, to continue the Committee stage of the Transport Bill. I think it would be helpful if I add that, subject to the progress of the business, it is hoped that the Committee will be adjourned no later than 2 p.m.
Lord Hatch of Lusby: My Lords, as the noble Lord is dealing with business, could he tell the House whether there are any plans to make a Statement in this House

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regarding the Falklands inquiry despite the fact that it is contained in a Written Answer in another place?
Lord Denham: My Lords, I understand that a Question for Written Answer has been put down also in your Lordships' House.

Tees and Hartlepool Port Authority Bill
Read a second time, and committed to an Unopposed Bill Committee.
Southern Water Authority Bill
Read a second time, and committed to a Select Committee.

Employment Bill
3.8 p.m.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Compensation for certain dismissals]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 1:
Page 1, line 6, at beginning insert ("Subject to subsection (1A) below").
The noble Lord said: Before coming to Amendment No. 1 perhaps it would be appropriate for us to say how delighted we are to see that the Government have called up the 1980 reserves in the form of the noble Earl, Lord Gowrie. We are particularly happy to welcome him back because I know that, from that experience in the 1980 Bill, he will recognise as we go through this Bill the customary moderation of our amendments in the light of a Bill which, even more than in 1980, appears to be irredeemable in its iniquity.
We begin with an amendment which is indeed a modest amendment, and one which I think I would be genuinely sorry to see the Government totally resist. The schedule and the clause that open the Bill give to the Secretary of State some of the most extravagant powers which a Minister has had in recent times to dispense, in his entire discretion, public money. It gives him the power to distribute, it is estimated, up to£2 million among persons who were dismissed from employment between 1974 and 1980, on the basis that if the Government's Act of 1980 had been in force at the time, and if he takes the view that they might have had a remedy under its provisions, then he can pay them
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any amount that he sees fit within certain broad limits in the schedule.
In another place there was considerable debate about whether this was retrospective or retroactive legislation, but I do not think your Lordships will be interested in that semantic discussion; it is perhaps sensible to call it a retroactive statutory discretion, and it certainly falls within the classical description of the retroactive and retrospective provisions of Mr. Justice Willes in 1870, when he spoke of laws that change the character of past transactions carried on upon the faith of the then existing law. It changes the character of the past transaction and it puts the Secretary of State in broadly the same sort of place as an industrial tribunal would be in if it faced a case which had occurred between two and eight years ago.
We shall argue in the debates on these clauses that there is no obligation whatever on the Government to introduce legislation as wide as that for the past, or indeed in respect of what they have already, and certainly not in this Bill for the future on union membership arrangements: and we shall on the appropriate amendments look in detail at the judgment of the Court of Human Rights at Strasbourg on which the Government have placed a certain reliance. But they cannot rely on that judgment for the extravagant provisions in these two provisions which do not include —and this is the point of our amendment—any provision whatever for the Secretary of State to make public what he is doing. The burden of the amendment is only to say that, if we fail in all else, the Secretary of State must tell us what he is doing with this money.
Clause 1 and Schedule 1 of the Bill are very different from the rest of it. The subject was not mentioned in the consultative proposals; nobody heard a word of this desire to make retroactive payments until the Bill sprang, as it were, like Athene fully armed from the unencumbered head of the Secretary of State after the consultative proposals. Employees who assert their rights to claim unfair dismissal under legislation normally do so openly in a tribunal. Industrial tribunals rarely sit in camera, and there is no suggestion in the Bill that they should sit in camera more than they do now.
Here, however, the Secretary of State may appoint an assessor, but he is not bound to take the assessor's judgment on fact or law—that is explicitly provided for in the schedule—and he can decide the exact amount of compensation. The amendment says that he must tell us what he does before he actually distributes the money, and in the amendment we provide for a period of three weeks, which seems to us reasonable. There is surely a very strong case for this House to look at this sort of provision.
It is frequently said that retrospective or retroactive legislation is bad, but I shall not stand here and suggest that either side does not from time to time initiate retroactive or retrospective legislation. All Governments do it from time to time. What I say however is that if it is done, it should be scrutinised with the closest attention. And if it is done, it should not allow for very important powers, and the expenditure of public money, in secret in a way that cannot be known about.
What have the Government said so far? I will take briefly the six points they made in another place.
Most of them come from the Under-Secretary of State on 11th March, in columns 267 onwards, in Standing Committee, and I summarise the points, I hope fairly. First, the Minister said that it would be a waste of public money to present such reports. Secondly, he said it was undesirable because it would infringe the privacy of the transactions between Government and individual. I pause here to say that since this individual, had he had the rights at the time, would have had to sue in public in tribunal, what worth can be put on that argument?
He said, thirdly, that it was wrong to disclose the names of employers and unions involved—this does of course involve a dismissal from a closed shop situation and there must be a UMA, a union membership arrangement, between an employer and a union—because it would look as though, said the Under-Secretary, the unions and employers were being put in the dock. I do not believe that for a moment. It was agreed that answers might be given to parliamentary Questions, although it is not at all clear what would be said, and perhaps the noble Earl, Lord Gowrie, would tell us what would be said if a Question were put down about a particular case. Then it was said that these decisions to pay compensation were different from industrial tribunal decisions because the Secretary of State was exercising a discretion.
Then it was said, and as it is so important I will quote the words:
" I may have misread the press, but I understand that the trade union movement has recently been issuing threats to take action against people who try to benefit by taking such action as the Bill made available to them. Perhaps I did not understand what appeared in the press, but if I have understood it aright, those people were saying, quite irresponsibly, that what Parliament will decide to do, they will do their best to obstruct and frustrate".
He was challenged on that, and on a number of occasions afterwards, to produce evidence for it, and he produced none; and I trust the Government will make it clear that they know of no such threats—because there are none—or else produce evidence of them.
It is even worse than that because if such threats had been made by someone irresponsible enough to do so—of penalising somebody for exercising his legal rights the man would be in the same position as if he had sued in an industrial tribunal. If the trade union movement wants to go around penalising people for exercising their rights under the legislation, they can get the names of those who do so in the tribunals, but I know of no one case where that has been done, and if there is one let the Government produce it, as a straight answer to an action in a tribunal.
Surely none of this is an answer to the plea that the Secretary of State should say what he is doing, for here there is no appeal to a court; there is no appeal to the employment appeal tribunal. It may be that a claimant could go to the High Court on judicial review if the Secretary of State was so erroneous in an extravagant manner and got his law all wrong, but that would be a very rare case.
A point of the greatest importance, one to which we shall return in our debates—it is right that I should raise it at an early point because I know that my noble friend Lord McCarthy will have something to say on it—is that the Government, at the beginning, estimated that they needed £2 million to dispense on the clause
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because they thought there would be some 400 cases of injustice that might need recompensing of those dismissed between 1974 and 1980. Your Lordships will appreciate that I am not at the moment debating the type of injustice, because that is not relevant to the amendment, although I would and shall on other amendments.
The Government said they based the 400 estimate-or, as the Minister of State said, "the shot in the dark of 400"—on the research of Miss Helen Jackson and, secondly, a research team commissioned by the Department of Employment three years ago which is now co-ordinated by Professor Gennard of the University of Strathclyde. There is a nice irony in this because Miss Jackson's research (which is normally understood to be a guess, which is what it was, of 400 cases) was punctured by Professor Gennard and his team in a letter to the New Statesman in June 1980, and little has been heard of her research methods since. Since then, however, the dark in which the shot was made has become even more gloomy. The Gennard Report is well known in various circles to be around in final draft form, but the Government will not publish it. They say it is unfinished and they cannot publish it. The Secretary of State repeatedly refused to disclose the report in another place, even though his Minister of State said in Committee on 11th March, at column 218:
" Those drafts"—
that is, drafts of the Gennard Report—
"are now and have been for some time the subject of discussion and detailed examination normal in commissioned research, but it is not finished".
I do not wish to challenge that, but I say that it has been challenged. The Financial Times is not normally an irresponsible newspaper. On 24th May, in a report by John Lloyd and David Goodhart, its labour correspondents, it stated:
"Employment Ministers say 'The report has not been published because it is unfinished '. That is only technically correct. The report is completed, but it has not yet been formally accepted by the department. Until it is, it cannot be published".
Then, suddenly, also in Committee in another place, the Government decided to make a concession, and they handed across a two-page document which gave some of the figures from the Gennard Report, presumably upon which they were relying. The document showed that there were fewer that 400 such dismissals over a much longer period, and it was not at all clear which would fall within the schedule and which would not. Various persons, including the general secretary of the Trades Union Congress, have asked the Government for the report, and to my knowledge have not yet received it. Even if the report is only a draft, when it is known by everyone who knows anything about it—there have been extensive press leaks, and every labour correspondent has a copy—it is quite wrong for Parliament to be asked to debate the spending of £2 million worth of public money by shots in the dark when the window could be opened and the light from Gennard could stream in to infuse the debate with some knowledge and clarity.
I hope that the Government will anounce that they will release the report, especially in view of the fact that on 9th December 1975 a Back-Bencher in another place spoke about the need for the press to be present

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and to have publicity in all kinds of tribunals. That Back-Bencher is now the Secretary of State for Employment, Mr. Norman Tebbit. In a glorious speech, reported at col. 335 of the Official Report—this is my final quotation; I shall not quote all of the speech—he said that the press must be there, the plaintiff must be represented, everything must be done in the open. He is right. He was right then, and he ought to be right now. It is because of that fundamental, very simple and very modest point, which goes to the root of the way in which the Government have so far handled the matter, that I beg to move the amendment.
3.22 p.m.
Lord Boyd-Carpenter: It is refreshing to begin the Committee stage of the Bill with an effort, an unaccustomed effort, on the part of the Opposition Front Bench to press for restraint and control over public expenditure. I only hope that on other measures the noble Lord, Lord Wedderburn of Charlton, will infect his colleagues with similar zeal, perhaps in cases where more public money is involved and where the merits of the expenditure are less obvious than they are in this case. The noble Lord on the Front Bench opposite exercised all his impressive forensic abilities to try to turn this really rather modest matter into a major issue of principle and of policy. But what the amendment that I think he was moving seeks to do is simply to provide paving for a number of subsequent amendments which would formalise, delay, and prolong matters and would involve considerable additional administrative expenditure in respect of the fairly simple and straightforward issue dealt with by Clause 1.
As I understand it, Clause 1 simply seeks to remedy what I think the noble Lord opposite will find the great bulk of public opinion in this country regards as a very real wrong suffered by a limited number of people who lost their jobs as a result of an unfair state of affairs. That opinion is held not only by some of us on these Benches; it is also the opinion of the European Court of Human Rights, the impartiality of which in the political sense is I think beyond dispute. After a prolonged discussion of the matter, the court held that in some of the cases there was a breach of fundamental human rights. The clause is designed to put that right, and on any view the amounts involved are moderate. It is a once-and-for-all proposal.
On the whole I share the dislike of the noble Lord opposite for legislation which is either retroactive or retrospective, but where, as in this case, the sole retroactive effect is to confer a benefit, the normal objections do not arise. It is objectionable to alter the law retrospectively where people who have acted under the law as they thought it was, find it altered subsequently to their disadvantage. That is not the case with this proposal. An advantage, a modest advantage, by way of recompense is conferred on people who have suffered wrong and injustice. I see no reason whatever for setting up, as is proposed by noble Lords opposite, an elaborate piece of machinery the only effect of which can be to spend further public money on administraton and to delay the payment to people who suffered their wrongs some years ago.
Finally, the noble Lord was I think for once guilty of something of an inaccuracy when he said that my
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right honourable friend the Secretary of State would spend the money in secret. I speak subject to confirmation by my noble friend on the Front Bench, but it would be my impression that the expenditure would be subject to review by the Comptroller and Auditor General, and if he found any irregularity, abuse of power or excess of action the matter would be reported to the Public Accounts Committee. Those of us in this Chamber who have had the privilege of serving on that committee know what effective sanction and control it provides. Not for one moment do I think that there is the slightest likelihood of any irregularity, but I agree with the noble Lord opposite that if there were to be, since public money is involved, there should be some protection. Speaking subject to my noble friend's confirmation, I believe that there is the normal protection provided by the audit of the Comptroller and Auditor General and by examination by the Public Accounts Committee. Therefore, I hope that, without undue delay, your Lordships' Committee will reject the amendment.
Lord Wedderburn of Charlton: Before the noble Lord sits down I wish to apologise to him and to your Lordships. The noble Lord said that he was not sure which amendment I was moving. If your Lordships will permit me to point out, I should have said at the onset that, with your Lordships' approval, I wished Amendment No. 3 to be taken with Amendment No. 1,because they go together.
Lord Boyd-Carpenter: I thank the noble Lord.
Lord Rochester: At Second Reading I made plain that we on these Benches support in principle the Secretary of State being empowered to compenstate the individuals to whom the noble Lord, Lord Wedderburn of Charlton, has referred. However, on the face of it to us it seems reasonable that when the Secretary of State is taking powers to disburse what are potentially large sums of money—I think that on this point I cannot agree with the noble Lord, Lord Boyd-Carpenter—without reference to industrial tribunals that are available for the purpose, or even without necessarily having to consult anyone else, then, as the amendment proposes, there should at least be some obligation on him to give reasons for the decision that he has reached and to publish any report that might have been made by the person appointed by him under Schedule 1. While there might be doubt as to the practicality of ascertaining, as is suggested in the next amendment, the opinion of the former employer and the trade union which may earlier have been involved, I have considerable sympathy with the principle that the Secretary of State should be made more accountable for the decisions that he makes in this matter.
Baroness Seear: I should like to raise a point, a narrower point, but one which I should have thought would be dear to the hearts of members of the Front Bench opposite. In the reference in the Explanatory and Financial Memorandum of the Bill to the amount of public money to be spent it is stated that it is proposed to pay out up to £2 million. It is then stated that it will cost a quarter of a million pounds to pay out £2 million. That seems to be an enormously high

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administrative cost for the paying out of £2 million. Do we really have to spend all that money to dish out £2 million?
Lord Houghton of Sowerby: These amendments and the clause to which they relate are likely to become a feature of our political and parliamentary life if the see-saw trends of recent affairs continue. It seems now as if one Government propose and the next one dispose, and one wonders whether we are entering a period of politics in which Governments will have a single term and probably no longer, in which case the succession of Governments will be involved in undoing what their predecessors did.
I am not in sympathy with these amendments, and I am not really in sympathy with the clause either, because this is another move in the see-saw politics to which I object. Nothing seems to stick, and I do not see how we can continue to govern this country on the basis of doing and undoing. It used to stop at doing and undoing, but now we have retroactive or retrospective measures to repair the harm done by the previous legislation. The Labour Government, when they came to dismantle the 1971 Industrial Relations Act, made retrospective the tax relief on the income of funds of trade unions which registration under the 1971 Act qualified them for but which non-registration did not: and from recollection, I believe £10 million was provided to restore to the trade unions the tax relief that they had foregone, and knowingly foregone, because of non-registration under the 1971 Act.
Call it what you like, it was a retrospective repair of harm alleged to have been done under the earlier legislation—and this, in principle, is precisely the same, with, I regret to say, the same political bias behind it in both cases. This is not really the repairing of an obvious harm to individuals which public opinion generally feels should be put right. There is a political bias both ways when one comes to deal with matters of this kind, because they arise from a highly political piece of legislation, whether it is the 1971 Act, the 1974 Act, the 1976 Act, the 1980 Act or the 1982 Act. They are all highly political, and arouse deep feelings and emotions, extreme bitterness and grave exaggeration in all criticisms of them from both sides. There are, of course, some differences here, but the retrospection provided for the refund of tax reliefs foregone was based upon an assessment of what relief was due, and it was easily ascertainable; it was not, so to speak, at anybody's discretion. But under the proposals here, payments are within limits within the discretion of the Secretary of State.
My sympathy in this matter certainly rests with workers who found themselves dismissed on account of the introduction of a closed shop arrangement, who had never undertaken to join a union, who had never done so and whose employment was never conditional upon their being members of any trade union of or a particular union. They exercised the freedom of the citizen to not join a union if they so decided. To alter the conditions of their employment and to turf them out is, I think, a grievous wrong on individuals; and, furthermore, I do not think that people who take that stand are necessarily dishonourable people. The dissenter is often a very noble person indeed, and a very courageous one, who places individual liberty above all
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else. Others of more temperate outlook on life decide that one stand for liberty has to be reconciled with another, and by that means compromise is brought about. But we must not feel that there is necessarily a justifiable bias against those who may claim the payments that can be made under this clause.
That is why I am very much out of sympathy with the proposal to publish their names and to publish the reports that are made upon their applications. It may be, of course, that some of them have already had publicity before an industrial tribunal, because they may have failed in their claim for wrongful dismissal. Some may have decided that it was not worthwhile making a claim, and may not have received any publicity so far. But I think the Secretary of State will obviously account for what he is doing, in the sense that he will provide an analysis of the payments he has made and the numbers involved, and all the desirable details about what he has done. But what is the point of publication of names? It is to put them in the pillory. That, I fear, is what would happen to them, and that is extremely undesirable. I do not feel that one should victimise people who avail themselves of this opportunity to get compensation retrospectively merely because they were excluded from continued employment in their particular jobs.
I therefore feel that Parliament ought to look at where we are going on this kind of legislation, and ask ourselves whether the public are going to continue to have patience indefinitely with this feature of our political and parliamentary activity. I think it is taking up an enormous amount of time. There are much more important things in this Bill than this. The discretion has to go somewhere. The industrial tribunals are usually awarding against employers and not against the state; they are not spending public money, so the discretion has to go somewhere. It could all go to one tribunal. I think it is undesirable to have this scattered all over the country in different industrial tribunals which may have a different approach to this kind of case and which they are not used to hearing retrospectively in this particular way.
So I regret to say that I do not feel that I can go along with these amendments. In so doing, I do not think I need to repeat time and time again my own connection with the trade union movement; but while my own union had a 93 per cent. membership on a voluntary basis, I saw no reason for a closed shop. It really makes the leadership lazy, arrogant and sometimes aggressive towards members, who are captive members and whose confidence and goodwill they do not rely on for their continued strength as union leaders. But that is a debate for another occasion. I am sorry to introduce a dissenting note at this stage, so early in the debates on this Bill, but one has to decide: does one say nothing and let it go, or does one feel that there is something to be said in principle on a matter of this kind? I feel there is, and that is why I have said it.
Lord Howie of Troon: I do not intend to follow the line of argument pursued by my noble friend Lord Houghton of Sowerby, although it will be no great suprise to those who know me that I agree very much with many of the things that he has said. I want to revert, and to revert very briefly, to the arguments

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raised in defence of the Government by the noble Lord, Lord Boyd-Carpenter, or at any rate to these arguments in so far as I understand them—and any misunderstanding will have been due to me and not to the noble Lord, whose clarity of expression is legendary in your Lordships' House and elsewhere.
As I understand it, the noble Lord, Lord Boyd-Carpenter, appeared to me to defend the Government against the allegation of secrecy by referring to the position of the Auditor-General and of the Public Accounts Committee. What he said was right. What the Government do with money comes under the scrutiny of the Auditor-General and whatever comes under the scrutiny of the Auditor-General comes within the purview of the Public Accounts Committee, a body of which he has great experience and I have none, so that he speaks as an insider and I as an outsider.
I would remind him (and he will correct me if I am wrong) that the work of the Auditor-General, consequently and the work of the Public Accounts Committee, covers a vast field. In the nature of things, the Public Accounts Committee does not deal with everything which might theoretically come within its ambit. While it might be true that the Public Accounts Committee could theoretically deal with this particular aspect of public expenditure, it is not necessarily true that the Public Accounts Committee would do so.
Lord Boyd-Carpenter: Perhaps the noble Lord will allow me to intervene. As I understand it, the position is that the Comptroller and Auditor-General and the Exchequer Audit Department with their staff of between 400 and 500 are working through the departments throughout the year. Of course, a great deal of what they ascertain never comes before the Public Accounts Committee, but any irregularity, any making of payments which should not have been made, even though the amounts are small, they would normally find it necessary to draw to the attention of the committee and the committee would feel it its duty to deal with it.
Lord Howie of Troon: I am sure that the noble Lord because of his experience is correct. Nevertheless, it remains true that the amount of work for the Public Accounts Committee is such that they will always give greater or lesser weight to each of a variety of items which comes before them. It might be that this area of expenditure is something upon which they might feel inclined to spend a lot of time, but I am sure that the noble Lord will agree with me that it may not be so. There may be from year to year a wide variety of items of Government expenditure which the Public Accounts Committee would find much more important and pressing and would deal with rather than this kind of thing. I think that the argument which the noble Lord, Lord Boyd-Carpenter, raised was a strong one, but I do not think it was strong enough, and because it was not strong enough I think the Committee should pay very careful attention to these amendments before us now.
Lord Oram: Neither my noble friend Lord
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Wedderburn of Charlton nor the noble Lord, Lord Boyd-Carpenter, found very much objection to the fact that the scheme proposed in Clause 1 is retroactive or retrospective. And neither do I. I agree that both sides of this House pass retroactive legislation and I see no particular objection, in that sense, to that part of this clause. But I would suggest that it is uniquely retrospective, and perhaps dangerously so, in that it requires a decision to be made in respect of events of an earlier period, perhaps of six, seven or eight years ago, on the assumption that the 1980 Act had been in existence years before it actually was enacted.
There may be precedents for this kind of thing but I am not aware of them. I believe it to be true that this clause is unique in that respect. Certainly it would raise enormous practical difficulties in operation. It would put great strain upon the impartiality of those whose duty it is to reach decisions, and to reach proper and fair decisions, in the cases that will come before them. Because this amendment that my noble friend has moved would help to deal with that difficult task, and would ensure that each case was more deliberately and carefully examined in the face of the enormous difficulties to which I have referred, I think this amendment should commend itself to your Lordships.
Lord Plant: I support this amendment wholeheartedly. There is no question of delay with this amendment. It turns the searchlight of democracy on this issue. We are voting on this issue but we do not know how many cases will be involved. The sum of £2 million is set aside but there has been no authoritative statement yet from the Benches opposite as to how many cases they expect. I do not think they know. We want to know not only the number of cases but how the Secretary of State will deal with them. It is all right for us to pass a Bill or to amend a Bill and not take into account that the media will turn their searchlight on issues of this kind. If we think that the people who are going to receive monies from the Secretary of State will keep it quiet, I do not think we understand the ingenuity of the press.
There is an emotive issue here for 12 million trade unionists. This is a benefit for non-members, for people who refused to join a trade union. They are the bounty hunters and the Government are taking pride in giving money to non-members, money to people who were too mean to belong to a trade union. I disagree on this with my noble friend Lord Houghton, who was predecessor as Chairman of the Inland Revenue Staff Association for 40 years; I was general secretary for 16 years. I think that we have to understand the feelings of those trade unionists who have paid their dues and fought the battles with the employers and got benefits which the non-members have accepted. Now they see these non-members being remunerated and benefited by the Government.
Therefore, I think we ought to have the searchlight of democracy on this issue. And that is why I want to see reports made and names published. I do not think that many people will be too ashamed to have their names published if there is some brass at the end of it. I, too, will be influenced to some extent by what the Government will be able to say about the Comptroller and Auditor-General. I think this is an important point which the noble Lord, Lord Boyd

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Carpenter, raised. We do not know at the moment whether it is going to be looked at carefully by the Comptroller and Auditor-General or by the Public Accounts Committee. However, I support the amendment.
Lord Mottistone: May I make a few remarks backing up what my noble friend Lord Boyd-Carpenter said earlier, which I hope noble Lords are not forgetting, for we have since had these long statements. All this amendment will do will be to complicate things and slow them down. The sooner they are dealt with, the better. They are perfectly legitimate; the Court of Human Rights said so in particular cases. There are others which are similar; but I believe but there are not too many altogether. It is right, as the noble Lord, Lord Houghton, has said, that publicity for this for individuals is probably undesirable. There is no reason why, if they themselves want to make it public, they should not do so; but it should not be forced upon them from without. I would have thought it was quite an important point, and the sooner it is dealt with fairly and straightforwardly the better. As my noble friend Lord Boyd-Carpenter pointed out, there is ample machinery within the system to make sure that the Secretary of State does not abuse his powers in this respect. Therefore, I would have thought that this complicated amendment is better rejected by your Lordships.
3.50 p.m.
Lord Hatch of Lusby: May I draw the attention of the noble Lords, Lord Boyd-Carpenter and Lord Mottistone, to the speech just made by my noble friend Lord Plant, and also to the opening speech of the noble Lord, Lord Wedderburn of Charlton. The argument that is being put by the noble Lord, Lord Boyd-Carpenter, with some support from the noble Lord, Lord Mottistone, is irrelevant to this amendment. The question is not whether the Public Accounts Committee will find irregularities: that is not the object of it at all. The object of the amendment is to make public what the Secretary of State is doing, and if the Secretary of State is handing out up to£2 million of public money, I would have thought that anybody who believes in open government, in democratic government and, as my noble friend Lord Wedderburn quoted from the Secretary of State himself, public accountability, would support this amendment.
The object of the amendment is for the country to see what the Secretary of State is doing. If the Secretary of State is going to hand out this money, he must be seen to be doing it according to certian criteria, and those criteria should be published and made known. All I would say to my noble friend Lord Houghton of Sowerby is that if the figures that have been bandied about in Standing Committee and in another place and during the Committee stage in another place, are correct, and if in fact the people we are referring to—300 to 400 people—are going to get something of the order of £20,000 to£30.000, then I very much doubt whether they would be too much worried about their names being publicised. It rather reminds one of putting a cross on the football pool coupon—" no publicity, please."
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The essential element of Amendments 1 and 3 is the issue of public accountability. Do not let us get misled into the fields of the Public Accounts Committee and the searching for irregularities. We are talking here about public accountability of a member of the Government. Surely that is what Parliament is about. Surely, when a Secretary of State is asking for powers to distribute money in this way, whether we agree with it or not, the first thing we should insist on is that he is accountable to Parliament and to the public for the way in which he spends that money and the criteria he uses to distribute it.
Lord Scanlon: Listening to debates in your Lordships' Chamber, one gains experience all the time. I came into the Chamber today believing that in general terms and in general principle, retroactive and retrospective legislation was obnoxious in the extreme. I still believe that, and I do not think it has anything to do with fair play, with justice, or with any of the other words that have been used. In the main it is purely punitive and it is in that spirit that I believe it is being operated in this case. But in case my words may be misunderstood, I take inspiration for I am encouraged that in future debates we shall have the support of the noble Lords, Lord Boyd-Carpenter and Lord Houghton of Sowerby, when we introduce further retroactive legislation to make these people pay back this amount of£2 million they have already received, wrongly, in my view. I am sure we shall receive their support in that regard.
The only other point I should like to make concerns the remark of the noble Lord, Lord Houghton, about the closed shop. He said he would never support it so long as he had 93 per cent. members by so-called voluntary means. That is all right when you have a sympathetic employer. However, most employers are not sympathetic. They recognise a trade union only when that trade union is strong enough to compel that recognition, and if action is taken to operate even fundamental rights—the right to refuse to work with a non-unionist, which is an elementary right enshrined for many, many years —we shall be committing an offence when this Bill takes effect. Therefore, in my view, there is no question of some impartial way in which these things can be brought about unless you have a sympathetic employer; and unfortunately that is not the case in Britain today.
Lord Shinwell: I never thought, when I took part in the debates on the Industrial Relations Bill in 1970 and 1971, that I would ever be involved again: I suffered enough. But as I understand the subject of this debate—I have some difficulty in following it—it appears to me to be somewhat complicated, and I am a little out of touch with these matters nowadays. But if I understand the kernel of the subject aright, it relates merely to a matter of publicity. Should the activities, whatever they may be, arising out of legislation be made public? That is all. It is merely a question of whether there should be publicity for an action taken on behalf of the Secretary of State or by himself directly, or whether there should be no publicity whatever. That is what I understand the debate to be about.

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I am bound to say just this: if it were another Secretary of State I would not worry so much about it, but one must have in view his obvious bias and partiality, and his determination to weaken the trade union movement. There is no question about that. There is one thing to be said for the Secretary of State: he conceals nothing about his innermost feelings and sentiments. He is the kind of Secretary of State I like. You can deal with him. I would rather have that kind of Secretary of State than somebody who withholds from the general public, and certainly from Members of your Lordships' House and those of another place, what he is up to.
I think it would be interesting to know what he is up to in almost every particular of his activities. It would be very interesting and therefore, if the subject or, as I say, the kernel of this debate is a matter of publicity as to whether his activities in this particular area should he made known, and, especially as regards the expenditure of money, whether on behalf of the Government or on behalf of employers, should be revealed, I hope this amendment will be accepted.
I understand that the noble Earl, Lord Ferrers, is to reply. We all know his humanitarian instincts—they have been made known to us on many occasions—and I am certain that he would be the last man in your Lordships' House to try to conceal anything. Here is his opportunity. This democrat, this noble democrat, this aristocratic democrat—you cannot get a better democrat than that. If there is one, I should like to know about him. I would write an article about him and make a hit of money from that. But I do not want to be involved in these matters for very much longer. You get a bit out of touch when you get a bit older and, in the course of a few years, I shall be getting a bit older. It seems to me that I had better keep out of these disputes. But as this one appears to me, it is a simple issue—a matter of publicity. I am all for publicity. I hope that the noble Earl will respond accordingly.
Earl Ferrers: Before I come to that inviting and touching subject to which the noble Lord, Lord Shinwell, has referred, may I respond to the courteous welcome which the noble Lord, Lord Wedderburn, gave to my noble friend Lord Gowrie. He said that we had brought up the 1980 reserves and he was glad to see it. We were merely responding to the cry of noble Lords opposite on Second Reading to "Bring back Gowrie". As I told him then, he is as welcome on this Front Bench on this occasion as noble Lords opposite will find him welcome to them.
I think that we have got slightly off the main beam of the amendment, because this seems almost to have turned into a clause stand part debate. The noble Lord, Lord Wedderburn, said at the start that this Bill was irredeemable in its iniquity. I am sure that he will chew up those words before it is finished, because, as he knows perfectly well, it is a very modest Bill. Both he and the noble Lord, Lord Scanlon, said that they do not like retrospective action, retrospective legislation or retroactive legislation. I think that that is a hare. This is retrospective justice, because, as they know perfectly well, it was as a result of the European Court of Human Rights saying—and this
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was a staggering thing for them to say—that this Parliament, which, after all, is the Mother of all Parliaments had abjectly failed to protect the essential freedoms of its citizens, that this Government thought that it would be retrospective justice to ensure that, for those few people who may have been caught, there would be a method of remedy. That is what this clause is about.
The noble Lord, Lord Wedderburn, raised the problem of Gennard and he said "Let us have some light from Gennard". He said that every labour correspondent has a copy of the Gennard Report. All I can say to the noble Lord is that, if every labour correspondent has it, then they have something which my right honourable friend does not have, because, as he knows perfectly well, the Gennard report is not finished. It has caused much distress to Professor Gennard that his report has been quoted in extenso by various people, when, in fact, it has not been finalised. So it would be totally wrong for the Government to start quoting from a report which is only in draft form.
The real point about these two amendments is that the Government are seeking to give some compensation to people who have had a raw deal as a result of the previous Government's legislation. These people will already have suffered very considerable distress as a result of their dismissals, and it would be quite intolerable if the process of applying for this compensation were to be a yet further ordeal. That could well happen, if details of each individual's case had to be made public, as these amendments would require. The noble Lord, Lord Houghton, expressed regret that he offered a note of dissent. I assure him that he need have no regret for that, because I thought that his dissent was wholly admirable and totally justified. He said that it was like putting people in a pillory. I think that that is so.
The noble Lord, Lord Shinwell, very kindly and flatteringly described me as humanitarian. I think that that is the first occasion on which I have been called that, but there is always a first occasion for some things. He said that I am aristocratic and that is not the first occasion. Then he said that I was democratic and that is a matter of opinion. But the answer to this democratic, aristocratic, humanitarian argument is that he would not wish to see the light thrown upon individuals' cases for everyone to see, and, as he knows only too well, this is a cast-iron plank upon which all Governments operate, becuse there is a general principle that a Government should not make public the dealings between them and individuals, about such matters as tax, social security payments and so on.
This is a case to which this principle clearly applies, and it would be quite wrong for the Government to start publishing amounts of money which various individuals have received as a result of this legislation. That is not to say that information of a general nature about the compensation provisions in the Bill would not be made available.
The noble Lord, Lord Hatch, and the noble Lord, Lord Plant, said that they wanted the searchlight of democracy. They can have the searchlight of democracy, because they both know that Questions from Members of Parliament, or from your Lordships, about, for example, the number of applications which

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have been made and the total amount of compensation which has been paid, would all be answered in full. In the same way, if your Lordships or Members of another place were involved with an application on behalf of a particular person, the Government would be as helpful as possible in providing all the relevant information for that.
The noble Baroness, Lady Seear, said that £250,000 is a lot of money to administer £2million, but I would just tell her that that is the maximum and covers staff salaries and other administrative costs. The salary of the assessor and the cost of advertisements will also have to be found from this maximum figure, and if the money is not spent it will not be wasted. I think she will agree that it is really a pretty small sum of money to be spent on the defence of what has been shown to be justice—
Lord Hatch of Lusby: Will the noble Earl allow me to interrupt? Could he just tell the Committee what distinction he makes, so far as publicity is concerned, between other unfair dismissals going to a tribunal and the unfair dismissal that he has characterised in this Bill?
Earl Ferrers: When an unfair dismissal case goes to a tribunal, that is a legal proceeding and the amounts paid are paid by various people. The amounts of money which are paid by this method are sums of money paid out of Government funds. I will give the noble Lord, Lord Hatch, an analogy. He knows perfectly well that in business, or in agriculture, any grant that is made to an individual is not disclosed, because you would be disclosing an individual's private means. That is a factor which has prevailed under all Governments and I suggest that it is one which should prevail under this Government. My noble friend Lord Boyd-Carpenter asked for confirmation that the expenditure would be subject to review by the Comptroller and Auditor-General. Of course, he was entirely correct and was also correct in his mild altercation with the noble Lord, Lord Howie. The real point is not that these figures will not be known by the Comptroller and Auditor-General or by anyone else but whether or not they should be made public in a published report. It is that which the Government feel should not happen.
Lord Howie of Troon: I wonder whether the noble Earl would say a word or two about the very mild and friendly altercation to which he referred. The matter between us centred upon certain irregularities, about which the noble Lord, Lord Boyd-Carpenter, was very worried. What worries us are the regularities, not the irregularities. It is quite clear that while the Public Accounts Committee might possibly, though not certainly, deal with the irregularities, it would not be empowered to deal with the regularities.
Earl Ferrers: I do not think that makes very much difference. I repeat what I said at the end. The fact is not that the facts will not be known; it is whether they should be published. The Comptroller and Auditor-General has a perfectly sound method of investigating all expenditure by Government, as all Government departments know. So, in this case,
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I do not believe that it is correct to publish these sums. But I do believe that it is perfectly correct—and it will happen—for the overall figures to be available to those who wish to know them, by the normal parliamentary processes.
Lord Wedderburn of Charlton: We are not getting on very well. It is a very simple amendment. What we are asking for is quite simple. I apologise to your Lordships for not having read part of Amendment No. 3. We want to know the Secretary of State's decisions and we want to know his grounds. It is no answer to that to say that what should be a judicial procedure—when you already know what it is, because it would be published—has been turned by the Government's own Bill into an administrative procedure and should therefore be kept secret. That is no argument —rather the opposite. That which is done in secret in the expenditure of public money on grounds which are not disclosed is far more obnoxious than keeping it secret in court when it is dealt with in camera.
With no disrespect to your Lordships who have otherwise spoken, may I make two points to the noble Earl, Lord Ferrers, and the noble Lord, Lord Houghton of Sowerby. I was very sorry that the noble Lord, Lord Houghton of Sowerby, said, as was said in another place by the Conservative Party generally, without one single piece of evidence to support him that these people would be pilloried. It is an offence to 12 million trade unionists not to produce evidence for that kind of allegation. Last year there were 35,000 cases which went before industrial tribunals. Very few of those cases were won, but quite a few of those which were won were won by non-unionists. There were 50 cases which went before the independent review committee. Both I and my noble friend Lord McCarthy sit on that committee. We have never heard from non-unionists who have come to argue their case before the committee that they have been pilloried. Until, therefore, somebody produces a shred of evidence I hope noble Lords will refrain from the rather dishonourable practice of speaking about people being pilloried when they have no evidence of it happening.
If there is a case, let us hear of it. I say that there is no evidence sufficient to override the basic point that a Secretary of State in deciding legal questions—noble Lords will see when we come to the amendments that there are thousands of legal issues—should get all of them right. Yet he is not obliged even to refer a case to a tribunal or to an assessor, unless he feels like it, and even then he can ignore the report which is made. We want to know the grounds of that report, where he has one, and the grounds upon which he acts. It is no answer to say, in broad terms, that it has got to be done like this because the European Court of Human Rights says that it must be so. With respect to the noble Earl, Lord Ferrers, it is not the case that the European Court of Human Rights declared that this Parliament failed to protect the essential freedoms of its people. That is a very broad proposition. The noble Earl obviously had not consulted the Secretary of State about that passage in his speech, because on 16th March in another place Mr. Tebbit said at col. 475:
" It has also been suggested that the judgment of the European Court of Human Rights in the British Rail case was the main

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justification for Clause 1 and Schedule 1. I should like to put the position on the record clearly and firmly. The judgment of the European Court in the British Rail case in no sense required the Government to bring forward those provisions. The judgment concerned only those who took their case to Strasbourg. The judgment has merely added further justification, if that were needed, for the Government's view that it is right to provide such compensation".
I disagree with the last sentence. I wholly agree with the first, because it is absolutely right.
We are going to have a lot of Gennard. The Government should save a lot of time by putting the draft Gennard Report in the Library. We know that it will be a draft report. Professor Gennard has no status to object to that, if the Government request it. Three parts of the Gennard research have already been published in the Department of Employment Gazette. It is only the part about the closed shop which has not been published. I am not sure whether the Minister is still saying that he has not seen it or that he has not got it. If so, he cannot have been speaking to the Secretary of State. Three times in Committee in another place the Secretary of State declared that it was in the department and had been discussed for months. So let us have the draft report and not the air of hugger-mugger secrecy which is befuddling this issue. Quite apart from Gennard, if Gennard had never seen the darkness and gloom, let alone the light of day, the simple point is that the Secretary of State will be taking decisions which would normally be taken by industrial tribunals. The grounds for those decisions would normally be published in reports. We say that he should publish his decisions and the grounds for those decisions in an equivalent manner.
Earl Ferrers: Before the noble Lord presses his amendment, may I make one or two points. It was entirely unwittingly, I am sure, but the noble Lord was guilty of one or two inaccuracies in what he said. He wanted to know about Professor Gennard's report and said that we must not be hugger-mugger. The fact is that the report is in the department. The fact is that the Secretary of State has not seen it. The reason why the Secretary of State has not seen it is because it is in its draft form. The reason why it is not being published is because, as a result of discussions which are normally carried out when these reports are made, it may be subject to considerable change or revision. Therefore, I repeat that it is wholly wrong to put in the Library a report which is not complete and whose final version may be changed. There is nothing hugger-mugger about that.
The noble Lord also implied that there was a difference between what I said and what my right honourable friend said. Of course the European Court did not say that it was necessary for us to bring in this legislation. What it did say was that in the case in front of them there were certain methods and dealings which went against the rights of the individual. We then said that if that is so there might be other people similarly affected. Therefore, we as a Government thought it was correct to bring in legislation so that if others were found to be in a position where their rights as individuals had been offended against there should be the possibility of redress. The noble Lord, Lord Wedderburn, and the noble Lord, Lord Plant, said that this offends
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12 million people. It may offend trade unionists, but I cannot believe that—
Lord Wedderburn of Charlton: That is not true.
Earl Ferrers: The noble Lord said it is not true, but he has just said it. He has said that it offends 12 million people. All I am telling the noble Lord that this piece of legislation is being suggested in order to allow retrospective justice. It is because of justice that it is being brought forward. There is no secrecy about it. The noble Lord, Lord Wedderburn, came back and the first point which he made was that he did not want there to be any secrecy. I would ask the noble Lord to address his mind to any payment which a Government makes on anything. Look at tax matters; they are not divulged. Look at social security payments; they are not divulged. Look at grants to individuals; they are not divulged. Look at grants to companies; they are not divulged. It would be quite wrong to divulge in a published report payments of this nature to individuals.
Lord Hatch of Lusby: Can we just get the question of the hour straight? The noble Earl has made an important statement. He said that the draft Gennard Report is in the Ministry but that the Secretary of State had not read it. We know that the draft report has been in the Ministry since at least the beginning of the year. Is the noble Earl really saying—over six months later, when there has been a Standing Committee in the other place sitting many days to go through the details of this Bill; when the Bill has been through its Second Reading and Committee stage in another place; and when it has been through its Second Reading here and is now at Committee stage here—that the Secretary of State has not even read the Gennard Report and that he has not got the information? We are not talking here about whether the report is ready for publication. We are not talking about looking for a commercial publisher for the report. There is good material there and the noble Earl has confirmed it is there.
Lord Boyd-Carpenter: What has this to do with the amendment?
Lord Hatch of Lusby: Is the noble Earl really saying that all these stages of the Bill have been gone through without the Secretary of State even looking through the draft report, which the noble Earl says has been in his Ministry for so many months?
Lord Howie of Troon: Before the noble Earl sits down, may I press him a little further on this report as courteously as possible. We are not dealing with the most earth-shaking matter but it has some importance, if only because the Government in dealing with this measure in another place have used the report in evidence. Possibly the Government have used it incompetently, possibly inadvertently, and certainly they have done so confusingly. But the Government have most certainly used the report in the course of the debate. There is a kind of convention, although I am not sure how firm it is, that when a document is referred to in Parliament, the whole document should be produced in some way.

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It may well be that the Government are right in saying that the document is incomplete, is unusable, or is not in its final form. But at all events the Government have used it to some extent, and because the Government have used it they should certainly release it. It may not be possible for the Government to release it merely by way of publication, but there must be some way which the highly intelligent people who form the Government and who sit opposite us today can think of. Can they not publish an interim report? Or can they not publish somebody's reflections on an interim report? Or can they not publish the report in a green cover in the form of a discussion document? Or as a last resort, could not Professor Gennard write, "Dear Sir" at the front of his report and send it as a letter to the Secretary of State? There must be some way by which the Government can let us into this secret.
Lord Mottistone: Why?
Earl Ferrers: I really do think we are getting into a bogey-hole on Professor Gennard, if I may say so. The noble Lord, Lord Hatch of Lusby, said that I made an important statement. It was very nice of him to say it, but actually I did not think it was very important. In fact, I had given the information in an Answer to the noble Lord, Lord Underhill, on 23rd June. This is public knowledge and there is nothing funny about this. A draft report from Professor Gennard was received at the Department of Employment in February of this year. In Professor Gennard's view, his report is not yet complete, nor is it in a publishable form. That is Professor Gennard's view. It is Professor Gennard's report and he elects when he wishes his report to be published. It is perfectly normal for a person producing a report to consult a department to make quite certain that some matters concerning factual accuracy or statistical accuracy are correct.
When the noble Lord, Lord Hatch of Lusby, asks whether my right honourable friend has read some of the draft, I am not privy to what my right honourable friend reads in his bed at night, but I would not think it would be a draft report of the Gennard Committee. My modest experience as a Minister is that one has so much paper to read which is fully documented detail that one does not read drafts which are then likely to be changed.
I do assure the noble Lord and your Lordships that there is nothing at all curious about this. Some extracts of Professor Gennard's work have been made public with the agreement of Professor Gennard, but that is a totally different thing from publishing a report. I can offer to put the same document as the Committee in another place had during the course of Committee stage in another place into the Library for your Lordships' attention. That is not the whole document, but I will see that that is done.
Lord Underhill: The noble Earl referred to the Question I posed to him. I accepted his Answer in the spirit in which it was given. But if at that time I had read the Committee stage in another place and had known that extracts of the report had been referred to, I would have pressed the noble Earl much further.
Earl Ferrers: That merely shows the wisdom of the noble Lord reading a little bit quicker another time.
4.26 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 64; Not-Contents, 133.

DIVISION NO. 1

CONTENTS

Airedale, L.

Kirkhill, L.

Allen of Fallowfield, L.

Leatherland, L.

Amherst, E.

Listowel, E.

Ardwick, L.

Llewelyn-Davies of Hastoe, B. [Teller.]

Bacon, B.

Balogh, L.

Lovell-Davis, L.

Banks, L.

McCarthy, L.

Beswick, L.

Mackie of Benshie, L.

Birk, B.

Molloy, L.

Bishopston, L.

Northfield, L.

Blyton, L.

Oram, L.

Boston of Faversham, L.

Peart, L.

Briginshaw, L.

Pitt of Hampstead, L.

Brockway, L.

Plant, L.

Brooks of Tremorfa, L.

Ponsonby of Shulbrede, L. [Teller.]

Bruce of Donington, L.

Caradon, L.

Rochester, L.

Chitnis, L.

Scanlon, L.

Cledwyn of Penrhos, L.

Seear, B.

Collison, L.

Shinwell, L.

Cooper of Stockton Heath, L.

Soper, L.

David, B.

Stewart of Alvechurch, B.

Davies of Leek, L.

Stewart of Fulham, L.

Ewart-Biggs, B.

Stone, L.

Gaitskell, B.

Strabolgi, L.

Gladwyn, L.

Strauss, L.

Glenamara, L.

Taylor of Mansfield, L.

Hall, V.

Underhill, L.

Hampton, L.

Wedderburn of Charlton, L.

Hatch of Lusby, L.

Wells-Pestell, L.

Howie of Troon, L.

Whaddon, L.

Jacques, L.

Winstanley, L.

Jenkins of Putney, L.

Wootton of Abinger, B.

NOT-CONTENTS

Airey of Abingdon, B.

De La Warr, E.

Alexander of Tunis, E.

De L'Isle, V.

Allen of Abbeydale, L.

Denham, L. [Teller.]

Allerton, L.

Digby, L.

Alport, L.

Dundonald, E.

Ampthill, L.

Eccles, V.

Annan, L.

Ellenhorough, L.

Auckland, L.

Elliot of Harwood, B.

Aylestone, L.

Elton, L.

Balfour of Inchrye, L.

Energlyn, L.

Belhaven and Stenton, L.

Erne, E.

Beloff, L.

Faithfull, B.

Belstead, L.

Ferrers, E.

Bessborough, E.

Feversham, L.

Blake, L.

Forester, L.

Boardman, L.

Fortescue, E.

Boyd-Carpenter, L.

Gainford, L.

Burton of Coventry, B.

Gibson-Watt, L.

Caccia, L.

Gisborough, L.

Caldecote, V.

Glenarthur, L.

Campbell of Alloway, L.

Glenkinglas, L.

Campbell of Croy, L.

Gormanston, V.

Cathcart, E.

Gowrie, E.

Chelwood, L.

Granville of Eye, L.

Clifford of Chudleigh, L.

Gridley, L.

Cottesloe, L.

Grimston of Westbury, L.

Cullen of Ashbourne, L.

Hailsham of Saint Marylebone, L.

Daventry, V.

Davidson, V.

Halsbury, E.

De Freyne, L.

Hankey, L.

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Harris of High Cross, L.

Portland, D.

Harvington, L.

Rankeillour, L.

Home of the Hirsel, L.

Rathcreedan, L.

Hornsby-Smith, B.

Reilly, L.

Hunter of Newington, L.

Renton, L.

Hylton-Foster, B.

Richardson, L.

Kimberley, E.

St. Aldwyn, E.

Kinloss, Ly.

St. Davids, V.

Kinnaird, L.

St. John of Bletso, L.

Lane-Fox, B.

Saltoun, Ly.

Lauderdale, E.

Sandys, L.—[Teller.]

Long, V.

Seebohm, L.

Lucas of Chilworth, L.

Selkirk, E.

Lyell, L.

Sempill, Ly.

McAlpine of Moffat, L.

Sharples, B.

McFadzean, L.

Skelmersdale, L.

Mackay of Clashfern, L.

Spens, L.

Macleod of Borve, B.

Stamp, L.

Mancroft, L.

Stodart of Leaston, L.

Mansfield, L.

Stradbroke, E.

Marley, L.

Swansea, L.

Mayhew, L.

Swinton, E.

Merrivale, L.

Taylor of Gryfe, L.

Mersey, V.

Terrington, L.

Milverton, L.

Teviot, L.

Monson, L.

Thomas of Swynnerton, L.

Mottistone, L.

Trenchard, V.

Moyne, L.

Trumpington, B.

Moyola, L.

Vaizey, L.

Murton of Lindisfarne, L.

Vaux of Harrowden, L.

Newall, L.

Vivian, L.

Northchurch, B.

Walston, L.

Onslow, E.

Westbury, L.

Orkney, E.

Wilson of Langside, L.

Orr-Ewing, L.

Windlesham, L.

Pender, L.

Wise, L.

Porritt, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.35 p.m.
Lord McCarthy Lord McCarthy moved Amendment No. 2:
Page 1, line 7, after ("State") insert (",after he has ascertained the opinion of the former employer and the trade union or unions which were parties to the relevant union membership agreement,").
The noble Lord said: This amendment is much in line with the kind of thing that we were seeking to argue on the two amendments we have just dealt with. I want to take Amendment No. 2 along with Amendment No. 12, because they are both similar ways of doing the same thing. The objective, once again, is to try to make the provisions of this part of the Bill more acceptable, more normal, more usual, more like the way in which issues of this kind are decided in the institution for deciding issues of this kind—the industrial tribunals.
I would say, in answer to some of the points which have been raised earlier, that we are not at this stage in any sense discussing the merits of this clause or the schedule; we are not discussing whether there should he in principle retrospective or retroactive legislation on this subject. We are trying to say how it should be done if it is to be done. We are not proposing delays, we are not proposing things which cost more money, though, as the noble Baroness, Lady Seear, says, there appears to be plenty of money available; we are asking why these things cannot be done in the normal way. For example, why cannot we have reasons, why cannot we have grounds, and, in respect of these two amendments, why cannot we have representation?
Both amendments instruct, or attempt to instruct,
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the Secretary of State to take into account the opinion of parties to a dispute of this kind, in this case the trade union or the employer; in the case of Amendment No. 2, he is to take the opinion of the trade union or the employer before he uses his power, and, in Amendment No. 12, which is in fact in the schedule, to say that, if he decides not to use his appointed person, who is the nearest thing he has to an industrial tribunal, he must give certain representation rights which are similar to the kind of representation rights which are there when issues of this kind go to industrial tribunals.
We put this amendment down partly because a similar amendment was put down in another place, on the assumption, I think, that the Secretary of State or the Minister of State might very well say that it was not necessary, because of course, if the Secretary of State exercised this power, or if the appointed person exercised this power, it would be perfectly understandable for either the appointed person or the Minister or whoever it was to take representations from interested persons like employers or trade unions. But I am bound to say that if one reads the minutes of another place on this matter one gets the impression that it is very doubtful whether the present Secretary of State is thinking in that way at all. One of the points I would like to ask the Government is whether I am right in reading it in this way. Can we assume that it is so, that the Government seem to be thinking that an issue of this kind is a matter between the complainant and the Secretary of State?
It seemed to be said at one stage that since it was the Government's money they did not have to explain to any of us how it was used and they did not have to let in on this secret process, for example, the employer concerned, who, after all, it is being implied dismissed a man in a way in which he should not have done; if it was lawful, morally it was wrong, and some people persist in believing against all the evidence that it was necessarily against the European Court. Surely in that case the employer ought to be there to say whether he thinks that is so or not, and whether he thinks it is a fair interpretation of his position. But we have no guarantee so far, reading the speeches of members of another place at Committee stage, that that would be the case.
To show why there is a prima facie argument that these people most certainly should be represented, I am sorry to say—I apologise to the Committee for this—that we have to refer again to Professor Gennard. Professor Gennard tells us—and these facts have been revealed in another place or in the Department of Employment Galette or in one way or another—that 90 per cent. of the people who are covered by UMAs were recruited without the aid of UMAs; that two-thirds of UMAs in fact make provision for existing members to remain. Those are precisely the kind of issues which are to be covered by the clause. Professor Gennard says that in the vast majority of cases the negotiations surrounding the introduction of UMAs illustrate the desire on both sides to provide safeguards to protect individuals from possible abuses. That is what Professor Gennard is saying about the application of union membership agreements, or what the House insists on calling "closed shops". Indeed, there are only a very few cases where the agreement provides only for religious objections—for example, the British Rail

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case and the Strathclyde case. Even there, quite often there are, in practice, practices which take into account the position of the very people with whom this clause is intended to deal.
Therefore, when the Government say as they have done, using the Gennard Report—that there are 325 potential cases which might be covered, I say that that is not so because they are just the number of people who may have been unfairly dismissed given the previous legislation; it does not follow that they were unfairly dismissed given this legislation. The people most able to demonstrate whether they were unfairly dismissed or fairly dismissed under this legislation are, of course, the parties to those agreements at the time: the trade unions on the one hand, and the employers on the other. That is the basis of our amendment. We are saying that surely in those circumstances the Government, to ensure that justice is done to employers, if not to trade unionists, and to see that justice is done to employers, if not to trade unionists, would allow them to make representations either if it is done through the appointed person or even more so if it is done hugger-mugger through the Secretary of State. I beg to move.
Lord Boyd-Carpenter: As the speech of the noble Lord, Lord McCarthy, confirmed again the idea which appears to be held opposite that Professor Gennard is not only relevant to every amendment to the Bill but is also the vehicle of quasi-divine inspiration, I for one should be grateful if one of the noble Lords opposite would tell me who he is, because I think that it might be of interest.
The noble Lord, Lord McCarthy, seemed, with respect—whether with the aid of Professor Gennard or with his own unaided intelligence—to have missed the point as regards this amendment. Of course, where an employer, or, under this Bill in future, a union, may be liable to pay compensation to someone unfairly dismissed, it is essential that the employer and the union should have the right of audience before the deciding authority. In this case that does not arise. The money is to be provided from public funds. It is, therefore, not self-evident that either the employer or still less the trade union concerned, really could be of any assistance. If they had to be brought in they would, of course, further delay the proceedings about settling these cases. That seems to be the common note, as it were, that goes through all these amendments. There seems to be a surprising wish on the Benches opposite to propound suggestions which, whatever other effect they will have, will mean that people who have suffered a grievous wrong for a number of years will experience further delay in having recompense given to them.
But what, really, does the noble Lord, Lord McCarthy, think the trade unions' position would be in these cases? The noble Lord, Lord McCarthy, knows trade unions well. Indeed, he may recall that he once electrified this House by saying that he knew them better than anyone else in the House. He knows, therefore, that some trade unions are very difficult. Indeed, there is one with which he is concerned at the moment which is so difficult that it is a pleasant surprise to your Lordships that the noble Lord, Lord McCarthy, is able to spare the
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time to be here with us to give us his counsel this afternoon. Such trade unions obviously would be concerned solely to criticise the idea of any grant, or alternatively to try and get it cut down as much as possible to the person concerned.
Accepting as I do, as the majority in another place did and as I guess the majority here does the idea that the purpose of this not very important clause is simply to do very belated justice to a limited number of people as quickly as possible, it seems that this kind of amendment, apart from its other demerits to which I venture to refer, would be a sheer waste of time, and I hope that the Committee will reject it.
Lord Aylestone: I find Amendment No. 2 which is now before us rather mysterious, in that the Secretary of State is asked to ascertain the opinion of the former employer. That is not difficult in the case of someone like the Railway Board. However, in the case of a company, the officials who were responsible at the time of dismissing the employee may be completely different and the representatives of the trade union may be completely different—they may have retired or been replaced by others. It will be quite impossible because many of these cases will certainly go back to 1975—seven years ago. In that case how could one, if one wished to do so, operate Amendment No. 2?
Baroness Seear: I should like very much to agree with the noble Lord, Lord Aylestone, that it will be extraordinarily difficult to track down this information if one feels that one needs to have it. In response to some of the remarks made by the noble Lord, Lord McCarthy, and to the query, "Who is Professor Gennard?", let me tell the Committee, if it is any help, that Professor Gennard was at one time a colleague of both Professor Wedderburn and myself. I do not know what light that throws on the matter.
As regards the speech of the noble Lord, Lord McCarthy, I was deeply shocked to find that he was taking the illiberal line that there are not going to be so many cases to be compensated as the Government think. That will be very nice. It will cost the tax payer less. But surely the noble Lord, Lord McCarthy, will agree that, if there is even one man to whom a gross injustice has been done, he should be entitled to compensation. It is no argument at all to say—and this is the old housemaid's baby argument—that because there are so few of them it does not really matter.
Lord Underhill: I hope that we shall not have the same position as we had as regards the previous amendment where we started debating the principle of the clause as in a "clause stand part debate" instead of discussing the actual terms of the amendment. It does not matter whether noble Lords agree with the principle laid down in Clause 1 or whether they disagree with it; we can still consider the amendment on its merits and that is what I hope the Government will do.
If we look at the schedules, we find that the individual applicant will be given the name of the person to whom the Secretary of State may, if he things fit, refer the matter for consideration and the individual, the applicant, may make representations. So the applicant will be completely free to say what he likes to the person concerned. However, it may not be truthful. I know

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that there are penalties here for untruthfulness, but no one could verify whether what he said actually took place. Therefore, despite the rather irrelevant intervention of the noble Lord, Lord Aylestone— because that can be easily dealt with by making an adjustment on Report— I want to know whether the Government agree with the principle.
If we look at Schedule 1, paragraph 9, it says:
" The Secretary of State may, of his own motion or on the request of the applicant, reconsider his decision",
as to whether it,
" was made in ignorance of, or was based on a mistake as to, some material fact".
In other words, there is an opportunity to reconsider his decision if the facts given were not correct. Surely the most logical and sensible thing is to make sure that the facts are correct when the applicant—if he so desires—makes representations to the person appointed by the Minister. That seems to be sheer common sense and all the arguments of emotion on either side are unnecessary. Let us deal with that amendment as it stands, and the logic is such that the Government ought to accept it.
4.51 p.m.
Lord Oram: Perhaps I may remind the Committee of a point which I made in connection with the earlier amendment which we discussed; namely, that, as the Bill now stands, the Secretary of State is faced with the task of reaching a decision about events which may have taken place, say, six, seven or eight years ago, in the rather hazy distance of time. Surely, therefore he must not only rely on the word of the applicant and on the recollections of the applicant as to what took place those years ago; surely he must have what other evidence is available to him in reaching his conclusion.
The applicant will of course be claiming that he was victimised because he was not a member of a union, and that will be the complete statement of the applicant's case. But he may well conveniently have forgotten that the circumstances of his dismissal were more varied than that simple suggestion that he was a victim. There may be other reasons why it was concluded that he should be dismissed, as well as the fact that he was refusing to be a member of his union. Perhaps he was a bad time-keeper; perhaps he was a poor workman; perhaps he was guilty of stealing some spare parts. Perhaps, for a variety of reasons, the employer wanted to cease employing him, including the reason that he was a non-unionist. If they can be recalled, I suggest that all these factors should be taken into account by the Secretary of State or those who advise him in reaching a conclusion.
Surely suitable people to bring forward this additional evidence are those named in my noble friend's amendment; namely, the employer and the trade union, or unions, which were responsible at that time. They may remember these other factors which the applicant has conveniently forgotten. I think that there would be no other source, or no comparable source, that could be found from which the truth of that earlier situation could flow.
The noble Lord, Lord Aylestone, pointed to the fact,
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quite rightly, that there might be difficulties in that the official at the company or the official at the trade union had retired or had died, that they had been replaced and that, therefore, it would be difficult to consult them. Clearly, that is so. But surely that reinforces our doubt whether the Minister can properly adjudicate on these things. How is he to know if the evidence that one hopes would be forthcoming from these other sources is denied him? He will be completely on his own, completely relying on the word of the man or the woman who is coming along and asking for money. I think that that is a completely unsatisfactory situation.
Lord Taylor of Gryfe: I rise to my feet because of the comments made by the noble Lord, Lord Oram, and I would suspect that anyone who is dismissed for stealing spare parts or failure to turn up to work on time can be legitimately dismissed and can take his case to the industrial tribunal where it can be discussed. What we are discussing today is the dismissal of people who fail to join a union and a closed shop agreement
I happen to be a member of the British Rail Board and I regret to say that I was a member of that board when this injustice was done. In case it should be thought that in these cases there is an employer and an employee side in discussing these matters, let me tell you that in a closed shop agreement there is only one side. The employees of British Rail who were dealt with in this case were dismissed because of failure to accept management direction, or something of that kind. They were not dismissed because the closed shop agreement insisted, and management had to carry out their dismissal. In that case an employee appealing against that has to face not simply the Secretary of State, or whoever is making the decision, but he has to face the combined decision of the employer and the trade union acting in concert, who have opted for a cosy life together. I should like to support the point of view that was made from the Liberal Benches, that where injustice is done against an individual we have to protect the individual, and that is important in our book.
Earl Ferrers: I thought that when the noble Lord, Lord McCarthy, introduced this amendment there seemed to be two phases with which we would become familiar. One was "hugger-mugger" and the other was "Professor Gennard". I agree with my noble friend Lord Boyd-Carpenter that they do not seem to be able to get Professor Gennard out of their system. As the noble Lord, Lord McCarthy, was speaking I could not help recalling the young boy who was going in for a Scripture exam. He was told "One question you are bound to be asked is the dates of the Kings of Israel, so for goodness sake remember that." When he went into the Scripture exam he found one question which was: Criticise the character of St. Paul, and he was lost. He just wrote, "Far be it from me to criticise such an eminent saint, but I append here with the list of the Kings of Israel."
I would simply say this to the noble Lord, Lord McCarthy; he may produce Professor Gennard the whole time, and he and I may use different weapons; he may use knives and I may use shells. But I do not propose to discuss Professor Gennard's so-called report, because, as I said on the previous amendment,

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that has not been published. The important point in this amendment is that it seeks to invite:
" the opinion of the former employer and the trade union or unions which were parties to the relevant union membership agreement".
The Government accept that the dismissals of those who will be eligible to apply under these arrangements were not unlawful at the time. There is no question of seeking to establish whether these dismissals were right or wrong in some legal sense. The sole questions at issue now will be factual ones which—and again I must emphasise this—cannot lead to any liability on the part of a former employer or trade union. In view of this there can be no case for giving a former employer or trade union the right to state their views, as these amendments seek. In fact, the views of the employer or of a trade union are neither here not there. What is requested and required is a matter of fact and not a matter of view. The fact is: Is he eligible for compensation under the Bill and, if so, by how much'?
It may well help your Lordships if I explain what the appointed person will normally have to consider in the case of each application. First, he will have to advise on whether the conditions of eligibility for compensation are satisfied—in particular, whether the applicant was dismissed for non-membership of a union in a closed shop and, if so, whether his dismissal would have been unfair had the main closed shop provisions of the 1980 Act been in force at the time.
Secondly, he will have to advise, where he thinks that the applicant does meet the eligibility conditions, on what compensation should be payable. In doing this he must have regard in particular to the actual losses suffered by the applicant as a result of his dismissal. What will be important in relation to these matters will be solely the facts necessary to answer the questions. Of course, in many cases these facts may be clear from the papers which the applicant himself submits. For example, an applicant could well have copies of correspondence from his former employer and the union concerned about his dismissal which quite clearly show that his dismissal was for refusal to be a union member in a closed shop. Equally, he may well have evidence which clearly shows the losses which he has suffered as a result of dismissal. In these cases there may well be no need for the appointed person to consult the former employer or the union concerned at all.
Then, of course, in other cases there will be more difficulty in establishing the facts. In these cases the appointed person will no doubt wish to ask the former employer and possibly the union concerned for details, and this the Bill permits him to do. I need hardly say that if there is any doubt about the facts of a dismissal or about the loss which the applicant has suffered, then the appointed person will seek the facts from any individual or organisations who may be able to help.
The real point is this: neither the former employer nor the union concerned will in any way be defending these applications. They are not being judged. They are not being made liable. They are in fact not parties to the case, and there is therefore no reason why they should have a right to make their views known.
Lord Davies of Leek: I did not want to interrupt the
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noble Earl because he is so kindly, but there is an aspect of this that has not been noticed. Take, for instance, anti-union free-riders who are sacked for non-member-ship. They would now have the automatic right to thousands of pounds of compensation where this kind of investigation has not taken place. The wide boy-1 use a term used among these people—up and down the country, as in the case of social security, could make use of this clause and slip in between without a proper investigation. Am I right, or exaggerating the case?
Earl Ferrers: I do not think that the noble Lord is right and I do not think that he is exaggerating the case. I think in fact that he is wrong. It does not give anyone an automatic right to anything. All that Clause 1 does is to permit the Secretary of State to make payments towards compensation, and the methods by which those payments should be adduced are in Schedule 1. Therefore, there is absolutely no question of anyone being given an automatic right.
The first thing they have to do is to get through the hurdles. Were they involved in a trade union? Were they dismissed by an employer between certain dates? Having got that fact fixed, it then has to be determined whether the cause of dismissal were such as to require a payment. Therefore, there is no automatic right.
Lord McCarthy: I thank the noble Earl for his reply, because in some ways he has reassured us on this side of the Committee, but not entirely. I must answer one or two questions which have been asked. The noble Lord, Lord Boyd-Carpenter, says to me, "Who is Gennard?" He has clearly never heard of Gennard. I do not know whether Gennard has heard of him. Gennard is a professor at Strathclyde University who has written widely in the area of industrial relations. More important in this respect today, Gennard is the man the Government rely on, except of course they do not give us the evidence.
When they were pushed on the figure of 400 which came from a journalist on The Times, they said, "No, we are sorry: it is not 400; it is 325". When they were asked," Where did you get that from? "they said, Gennard". When they were asked, "What does Gennard say? Show us chapter and verse "they said," The Report is not in the Department of Employment". When they were told, "But you said it was", they said, "The Secretary of State has not read it". They have been putting one prevarication after another in our way ever since. That is who Gennard is.
The noble Baroness, Lady Seear, said something that I have to correct. She said that I said—and I think that Hansard will bear me out—that in some way if there is injustice it does not matter because it is a small injustice. I never said that. I would not say that. What we are trying to do here is not argue whether there is injustice. Indeed, I would say that we are being very impartial about this. We say that if you say there is injustice, have a judicial approach. Have an inquisitorial system. Let those who are interested and have evidence come and put their evidence. That is the way you will get justice. Do not do it—I am sorry if I say this again—hugger-mugger, with Gennard or not. Do it by a respectable judicial system. Even if there is only one baby, he is entitled to say whether or not he shall be suffocated by due process of law.
Earl Ferrers: I thought I must have misheard the noble Lord. Did he say that the purpose of his amendment was to ensure that no one individual should be suffocated? It seemed to be contrary to what he was arguing.
Lord McCarthy: It would be a nice thing to do with an amendment to say that no one individual should be suffocated. No, I did not say that. I did not say that I am not concerned about injustice because there is only a small amount of it about. I did not say that. What I did say—and I say this in reply to the noble Lord, Lord Aylestone—was that we ought to have trade unionists and employers involved. He seemed to be saying at one stage that they will not have the evidence.
Let me give one example. There are certain kinds of unfair dismissal which it is quite impossible to decide without an employer. Take, for example, the case of constructive dismissal. In constructive dismissal the employer is denying that there was dismissal at all. He is saying that he provided the man with various alternatives, sets of job situations, and the man in the end said, "Well, that is not the kind of job that I call a job You are trying to dismiss me". The man might say, "I know that the reason is that I won't join a union". The employer might say. "No, it is not that. It is because the job is running out and I have to find you another job. I want you to do this, and it is not an unfair dismissal at all". That is a potential case of constructive dismissal. Is the employer trying to construct a non-job, or a less satisfactory job, as a way of getting the man out, or is there some undercover argument about non-unionism?
I do not see how equity, justice and fairness can be met unless the employer is a party to a process of that kind. The appointed person, or even the Secretary of State himself, if he was fair, would be more likely to decide that constructive dismissal had not been proved if the employer was not there. There are quite a number of cases brought in the industrial tribunals where the employer is condemned out of his own mouth. Without the ability to bring the employer to a tribunal to ask him to defend what he has done, one would be bound to say that the case was not proven, and the case after all has to be proven in the end.
This brings me to what was said by the noble Earl, and I thank him for it. I shall look carefully at Hansard tomorrow to see that I have understood it aright. He said that in certain circumstances the trade union and the employer would be sent for if, he said, the facts were in doubt. That is a considerable advance on what we were told in another place, where we were told that it is not really their business. It is an advance but it still leaves it very much in the office of the appointed person or of the Secretary of State to decide for himself whether he thinks the facts are in doubt.
What we want is a judicial process where the employer or the trade union can say, "The facts are very much in doubt. Maybe I cannot remember it rightly, but neither can be remember it rightly. I have certain evidence and documents, and I want to put them in". They may go one way or the other, but the essence of a judicial process is that we go through that process. That is why I moved this amendment.
Earl Ferrers: May I try to enlighten the noble Lord,
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Lord McCarthy, a little more. It is sometimes a difficult process, but I will have a shot. His amendment really refers to allowing the trade unions or the employers to give their opinions. I would ask the Committee to address their minds to Clause 1 and to the schedule to which it refers. Clause 1 starts with the words:
"The provisions of Schedule 1 shall have effect for the purpose of enabling the Secretary of State",
to do certain things.
The provisions of Schedule 1 say, first:
"A person may apply for compensation under this Schedule where—
(a) he was dismissed from his employment",
between various dates;
"(b) he did not bring, or brought but did not succeed in, a complaint of unfair dismissal; and
(c) if the 1980 amendments had been in force".
Those are all matters of fact and, returning to Clause 1, it is on those matters of fact that the Secretary of State may make payments. It is erroneous, in my modest judgment, then to throw in by legal right the opinion of trade unions or employers on what is ascertained to be a matter of fact. If the matter of fact has not been ascertained, then, as I said, the appointed person may get the information from whichever source he likes.
Lord Houghton of Sowerby: Is the noble Earl aware that he could dispose of all the anxieties of my noble friend by seconding a group of tax inspectors to the department concerned to deal with claims? They would make sure that nobody received anything to which they were not entitled.
On Question, amendment negatived.
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Hatch of Lusby: Before we part with the clause, I wish to make a few comments about its contents and significance. I have no intention of making a Second Reading speech—
Earl Ferrers: May I interrupt the noble Lord? He is of course entitled to make a speech on the clause stand part, but as the clause and Schedule 1 are so interlinked, I wonder whether he would think it convenient for the Committee if his clause stand part speech were made on Schedule 1 as opposed to Clause 1?
Lord Hatch of Lusby: Very well.
Clause 1 agreed to.
Schedule 1 [Compensation for certain dismissals]:
5.12 p.m.
Lord McCarthy Lord McCarthy moved Amendment No. 4:
Page 22, line 5, leave out ("if he thinks fit") and insert ("after a declaration by an industrial tribunal that an applicant falls within paragraph 2 below").
The noble Lord said: We return to the same area as we were discussing previously, with another modest amendment which no doubt again will be misunderstood. Here we are making a further attempt to regulate the discretion of the Secretary of State. The amendment

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would allow the Secretary of State or his appointed person discretion in respect of paragraph 3 on the question of compensation assessments. It merely says that in relation to the sort of questions that were discussed by the noble Earl on the previous amendment, it shall be seen whether he was covered in the time-span of the provision, whether he got previous compensation from a tribunal, whether he was a person who had a conscience or deeply-held conviction and whether he was an existing employee when a union membership agreement was signed. Those matters, should be referred to an industrial tribunal, and such matters as the level of compensation payment could, on the basis of the amendment, be left to the Secretary of State. I beg to move.
The Minister of State, Northern Ireland Office (The Earl of Gowrie): I wish at the outset to thank noble Lords opposite, and particularly the noble Lord, Lord Wedderburn, for their kind act in welcoming me back from the deep peace of the Northern Ireland double bed to the hurly-burly of the industrial relations chaise longue. It is nice to be involved in these matters once more. I wish I could celebrate this homecoming by accepting the amendment, but it is defective and it would not be appropriate to accept it. The noble Lord is anxious not to be misunderstood, but I think he misunderstands an important principle in the Bill.
It is important to be clear that Clause 1 and Schedule 1, as my noble friend Lord Ferrers said in an intervention, establish no legal rights or duties whatever, and therefore impose no liabilities of the kind for which a tribunal is normally and appropriately considered the right judicial body. By contrast, payments under Clause 1 and Schedule 1 will be wholly discretionary, and therefore what the Secretary of State will be asking from any person appointed to consider applications is advice in the exercise of his discretion, and that would not seem to us to be an appropriate function for a judical body making judgments, as it were, like a tribunal.
Therefore, it falls on us to remind the Committee why the discretionary basis is so important. The reason why Clause 1 and Schedule 1 provide a discretionary power to make payments where an applicant is eligible, rather than providing a right to payment in such circumstances, is that we are dealing with particular and specific exceptional cases. Those cases cannot all be foreseen in advance, though it might be helpful if, by way of example, I rehearsed the ways in which we could foresee some where it would be wrong to make a payment, even where the eligibility conditions were satisfied.
For instance, in the case of those people who took their case to the European Court of Human Rights, we know that they could be, and some have been, compensated separately, so obviously it would be wrong in those cases to make a further payment under the powers in Clause 1 and Schedule 1. Equally, a case could arise where an applicant met the eligibility conditions and was recommended by the appointed person to receive a payment but was also a debtor of the Department of Employment arising from some other matter. Again, that would not be a very likely occasion but it could happen, and hence the discretionary power. The Bill, therefore, as drafted ensures
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that the Secretary of State can act flexibly and sensibly in those special circumstances, and Clause 1 and Schedule 1 as we have said, are targeted on specific and special individual cases.
I understand the legitimate concern expressed by the noble Lord, Lord McCarthy, that discretionary powers in legislation should not be exercised in any arbitrary fashion. It may therefore be helpful if I give the Committee the assurance that it would only be in the wholly exceptional cases such as I have outlined, where the Secretary of State might exercise his discretion not to pay compensation where eligibility conditions were met. I hope that, in the light of that assurance and for the other reasons I have cited, the Committee will reject the amendment.
Lord McCarthy: The noble Earl is, as ever, helpful, but he does not answer the case. As I understand it, he is saying that he cannot accept the amendment because the kind of evidence which will be required is advice on the exercise of discretion, and that is the kind of advice for which you do not need the judicial process. It seems to me that, in practice, that sort of advice will be about the facts, advice based on some system of cross-examination in which you attempt to establish what happened, with one group of people saying one thing and another group saying another, and in the end you will take a decision on the balance of whatever you believe to be the case and, accordingly, you will tender your advice to the Secretary of State on the exercise of his discretion. That is all a matter of fact and I should have thought a matter very fit for the exercise of the judicial process.
Secondly, the Minister says there is a discretionary element, and the example he gives of that—I fully respect it—is that of the men who took the golden road to Strasbourg. He says, "These chaps might indeed have been compensated already, and therefore the Secretary of State might quite rightly in his wisdom decide that even though a case had been made out on the facts", as I would put it, "nevertheless he does not think that they ought to be given any compensation". Well, I accept that, and under the amendment it would be perfectly possible because that is the part of the discretion of the Secretary of State which is protected under the amendment. We are seeking to make a division between discretion used to decide whether or not there should be compensation or the amount of any compensation, and what the Minister calls advice in the exercise of discretion, which I think becomes a matter of fact and, I repeat, is a suitable matter for judicial process.
The Earl of Gowrie: There is one further point I should like to add. There is of course precedent for what the Government propose. In the Pneumoconiosis etc. (Workers' Compensation) Act 1975, the Government of the noble Lord provided for the appointment of a single person rather than a tribunal to consider awards of compensation. That was in the issue of efficiency. One was simply trying to determine whether somebody suffered from the disease and how he had contracted it. That would not seem to be a case for a tribunal. In their Employment Protection Act 1975 the previous Government amended the Conservative Government's Employment Agencies Act

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1973, which enabled the Secretary of State to appoint a person to consider representations made by a person whose licence under the Act was to be revoked or refused.
So this seems a Perfectly normal and conventional way of behaving when dealing not with issues of rights or issues of liability, but With issues of individuals who have been caught up in a particular situation which has now been corrected under general law. That is why we feel that the tribunal would be an inappropriate organism and why the amendment should be rejected.
Lord McCarthy: I think that we are getting closer and closer to the point. It is perfectly true that anyone can give examples from precedent and the way that administrative decisions have been taken. It is absolutely right; of course there are administrative decisions arising out of the pneumoconiosis issue and the employment agencies issue in which the way that the noble Earl has described it is the way in which it has been done. There are also many other tribunals, such as rent tribunals and tribunals dealing with social security payments and unemployment benefits, where the judicial process is carried out. We are saying that this is something which is part of a tribunal procedure, which requires a judicial process. It is not a simple matter of administration, and therefore it ought to be part of the judicial process.
On Question, amendment negatived.
5.23 p.m.
Lord McCarthy Lord McCarthy moved Amendment No. 5:
Page 22, line 16, leave out ("and").
The noble Lord said: I am afraid that this amendment rather hots up the temperature, just a trifle. It is not just a matter of simple administrative justice and judicial process. I am now taking Amendment No. 5, and with it I should like to take Amendment No. 6. They are amendments of a different kind, because whereas our other amendments to the schedule are for the most part about due process of deciding whether there is eligibility and what process there should be to determine compensation, here we are arguing about who should be covered.
We want to start the debate about spontaneous, deeply held convictions—and I hope that we can keep the debate at a fairly low temperature. In the amendment we are suggesting that the criteria to be satisfied in order for a person to be eligible for payment should be narrowed, so that someone who has accepted at the time of his engagement into employment an obligation as a condition of employment that he should be a member of the relevant trade union—in other words, someone who came on the job and joined the union in the first place—should not be covered by the provision. If we were able to, and if we had decided in some way to attempt to change the 1980 Act, your Lordships might logically say that this kind of amendment should have been in that Act. But that was the 1980 Act, and it was some time ago. We are talking about the present Bill. We are saying that surely it is reasonable to make a distinction between someone who has a deeply held personal conviction or conscience of long standing, and someone—in particular
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in relation to retrospective legislation of this kind—who has gone before the tribunal, the appointed person, or the Secretary of State, and said, "Well, it is perfectly true that I joined the union some time ago, but now I am telling you that when I was dismissed in fact I had a deeply held conviction that I shouldn't be a member of the union".
One becomes a little doubtful here about mentioning Professor Gennard yet again, but it is a fact that the great majority of the exceptions in existing agreements go more to conscience than to deeply held personal conviction. The great majority of the exceptions relate to people who are non-members of a union when the closed shop or union membership agreement is imposed and such exceptions would not permit I think that there is reason for it—the development of what I call the spontaneous, deeply held conviction. That I think is quite understandable and is a common-sense situation.
Most people who have practical experience of the closed shop would say that in the area of conscience there are two kinds of objectors. There are those who can quote some religious objection; for example, the Corinthians, or I should say the Christadelphians—
Several noble Lords: Oh!
Lord McCarthy: They both quote the same part of the Bible; that is why I have got them mixed up. I am not sure whether the noble Lord is making a statement from a sedentary position, or whether he wants to intervene. Yes, the Christadelphians and the Seventh-Day Adventists both have the same position and both quote St. Paul's Epistle to the Corinthians. They say that, since that states that they shall not be yoked with an unbeliever, they cannot join the Transport and General Workers' Union. Well, this is a deeply held, long-term religious conviction which anyone who is a member of the sects can show he holds.
The other kind of deeply held conviction or conscientious objection is held by someone who for a very long time has had a rooted objection to trade unionism per se. This is something that is probably in the individual's family, background, and experience. It is not something which comes spontaneously, and certainly not after there is passed legislation providing compensation. Therefore, we are saying that it would be perfectly reasonable to accept this modest, but perhaps controversial, amendment registering the fact to which I have just referred. I beg to move.
Earl Ferrers: I was glad that the noble Lord, Lord McCarthy, said that he would do his best not to hot up the temperature of the debate by moving his amendment No. 5, which includes the word "and I did not think that of itself it was particularly inflammatory, but of course Amendment No. 6 goes further, and the noble Lord quite rightly took the two amendments together. Professor Gennard popped up again, but I shall not answer the noble Lord on that particular point.
The purpose of the amendments is to exclude from compensation anyone who was dismissed for not being a union member in a closed shop, but who had accepted the fact that he had to be a trade union member when he took the job in the first place. The reason the

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amendment is not acceptable to the Government is that it would deny compensation to some people whose dismissals would have been found to be unfair had they occurred between 1974 and 1980, even though they might earlier have agreed to join a trade union when they took the jobs.
Schedule 1 to the Bill provides for compensation to be payable to people whose dismissals would have been unfair under the main closed shop provisions of the 1980 Act. One of those provisions makes it unfair to dismiss an employee from a closed shop if he objects on grounds of conscience, or other deeply-held personal conviction—that is in addition to the possibilities of dismissal on grounds of religious feelings—to being a member of any trade union whatsoever, or of any particular trade union. This is one of the key safeguards which we believe should clearly have existed between 1974 and 1980.
This amendment would exclude from compensation some people who were dismissed, without any remedy, from closed shops between 1974 and 1980 but who had genuine conscientious objections to union membership although union membership might have been a prerequisite of the job. This is because the effect of the amendment would he that no compensation could be paid where the applicant had accepted when he took the job, no matter how many years earlier, the obligation to join a union. This quite rules out the fact that by the time of his dismissal he may have held genuine conscientious objections to union membership.
These objections will of course have to be demonstrated. Applicants for compensation who resigned from a union in a closed shop and were sacked as a result will have to show that their objection to remaining in the union amounted to a genuine objection on grounds of conscience of other deeply-held personal conviction to being a union member. In those cases the appointed person will have to advise the Secretary of State on whether in his view the employee did have a genuine objection at the time of his dismissal. Obviously, it is unlikely that the appointed person would take that view where the employee had resigned from his union because of, say, a squabble over the payment of dues. But in other cases an applicant might have happily joined a union 15 years earlier but subsequently felt that the methods of operation of that union had become so distasteful to him that in all conscience he could no longer remain in membership.
One could find an example, for instance, as a result of a union having called for industrial action in, say, a hospital, which he regarded as morally wrong and indefensible. It will be up to the appointed person to advise on whether, in such a case, there was a genuine conscientious objection to union membership under the terms of the 1980 Act. But it is the firm view of the Government that where a sacked employee had genuine conscientious objections to union membership at the time of his dismissal the case for paying compensation, with no "ifs" or "buts", is overwhelming. This amendment would prevent compensation from being paid in some such cases, and I am afraid, therefore, that I could not advise the Committee to accept it.
Baroness Seear: We on these Benches are unable to support this amendment. Nobody in your Lordships' Committee knows better than the noble Lord, Lord
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McCarthy, that it is not only union members who change their minds; it is union leaders who change their minds, and those in control of a union inside an organisation. As the noble Earl, Lord Ferrers, has pointed out, a union which may have been entirely acceptable in its approach, its policies and its attitudes when an individual joined it, may, because of a change of control inside the organisation, become genuinely unacceptable, and in such cases such people should be as entitled to compensation as any other people.
Lord Oram: It seems to me that one of the great difficulties in this whole business would be to sort the sheep from the goats. By sheep I mean those who have a genuine claim, and by goats—and there will be goats—I mean those who are trying it on; those who see the attraction of certain amounts of money and make an application. The genuine ones will have a genuine conscientious objection to belonging to a trade union, but the others may pretend to have those genuine feelings. But let us remember that the amounts of money involved will be quite sizeable. We do not know the number of cases, but £2 million is available, and if there are a few cases it might be adjudicated that the amounts of money are quite large. It worries me that, after a few cases have occurred and it is seen that the amounts of money awarded are rather large, this may activate in other people's breasts some retrospective consciences.
A man may have taken a job quite easily earlier on, even though he knew that there was a closed shop, and may without any difficulty have accepted the conditions. Then, as I think the noble Earl suggested, there would be cases where perhaps there has been a quarrel with a shop steward, or there has been nonpayment of dues, or where for some other reason he parts company with his firm. But then, five or six years later, when memories are perhaps dim on these matters, that could be translated into a highly-principled attitude in opposition to unionism, and he might state a case which it would be difficult to fault in relation to his claim.
I was impressed by what the noble Earl said, that this amendment may nevertheless be hard on some sheep; that is, some genuinely conscientious people who have changed their minds. I recognise that, and I recognise that, therefore, this particular amendment may be faulty. But I believe it ought to be our effort to find another formula, perhaps at a later stage, by which that particular difficulty could be overcome. But at the same time I think we ought to tackle the problem to which this particular amendment is directed; that is, to make sure that phoney people do not put up a case which may get through.
Lord Boyd-Carpenter: The speech of the noble Lord, Lord Oram, was, if he will allow me to say so, much more reasonable than that of his noble friend on the Front Bench. I agree with the noble Lord, Lord Oram, that there could well be cases of people who, having joined a union, then withdrew their membership for quite inadequate and, indeed, perhaps, even unworthy reasons—they did not want to pay the dues, they did not like the face of the shop steward, or many other reasons of that sort which very few people would wish to support.

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But this amendment deals not only with them but also with a class of person for whom I think, by implication, the noble Lord, Lord Oram, has, as I have, very great sympathy. That is the man who takes the very brave step, being already a member of a union in a closed shop job, of saying that, nonetheless, something that that union has done or is doing is so intolerable, so unjust, so wrong, that he is not prepared to continue in membership and support it. This is the kind of person which recent developments in this country can well be producing, perhaps in substantial numbers.
My noble friend on the Front Bench referred to the case where there is a dispute in a hospital. It so happens that yesterday I went to see what was happening just across the river at St. Thomas' Hospital, where the union concerned in the health service dispute is adopting an attitude and a procedure by way of picketing which is doing a great deal of damage to a number of wholly innocent people. There the representatives of the union have taken it upon themselves to determine whether or not the case of a patient wishing to come in is urgent. and whether or not certain supplies that come in are necessary; with the result that in one of the finest hospitals in the world, just across the river, one-third of the beds are now unoccupied although normally in July they are 90 per cent. occupied, and with the result that, though normally they would have 130 operations a day, they are down to 30 because the supplies—the necessary sterile dressings, and so on—are being denied entry.
The result is that many people who need treatment are being denied it—perhaps they are not going to die next week through lack of it, but they may well be going to die next year because they have not had treatment in time. I can well understand how many members of that union—decent, honourable people—may well feel it quite intolerable to remain a member of it. Indeed, I do not want to upset the noble Lord, Lord McCarthy, by going a little nearer the knuckle, but it appears that there are a number of engine drivers who are inclining to a similar view in respect of another dispute. People who put their own jobs at risk and, ex hypothesi in this case lose them, because of convictions of that sort are probably more entitled to compensation than any of the other categories covered, because they have shown a willingness to sacrifice their own interests to what they believe to be right. This amendment would eliminate that category; and for that reason if it is pressed to a 'Division I shall vote against it with conviction and determination.
5.40 p.m.
Lord Scanlon: The more I hear of this discussion the more I am convinced of the total air of unreality that exists. If I may illustrate where I think the discussion is going, it reminds me of the preacher who, when he was asked the reasons for his success as a preacher, said, "I tell them what I am going to say, then I say it, and then I tell them what I have said". This is the way it appears to me we are going. I say to the noble Baroness and to the noble Lord, Lord Boyd-Carpenter, that I do not know of any trade union which in admitting a member does not say, "Do you abide by the rules and constitution of the
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union?" and members sign a declaration that they will.
The rules and the constitution are complex indeed.
If I may give an illustration, our national committee debated the Industrial Relations Act 1971. I was empowered as president of that union to oppose that Act by a majority of two votes out of 52 people. There were many members of our union who may disagree with that decision, but all the debate took place within the constitution.
We are now saying that if somebody has deeply held convictions against a decision arrived at in a constitutional way, he can use this legislation to get compensation if he is dismissed as a result of opposing the union. Do not be surprised if it happens in a reverse way—because there are many who think that their unions are too complacent and are not taking the steps to justify the interests of their members. Will the same impartiality hold out for those individuals? I doubt it very much.
All that it portrays in all its nakedness is the vendetta against trade unionists who, for whatever reasons, are convinced that the way forward for their members may be to take certain actions which noble Lords opposite think is inconsistent with actions they should take. If legislation is to operate in that manner, then I hope that we have no part in it. In fact, I am more than ever convinced—and I do not like saying this—that it really is wrong to debate amendments on this Bill. The Bill is so iniquitous, in my view, that by moving amendments we may be involved in something which, I repeat, in its stark nakedness is coming out as a result of contributions made by noble Lords opposite. If we are going to legislate for a position where people can get compensation as a result of disagreeing with a constitution that they voluntarily entered into when joining a trade union, then that exposes this Bill for what it truly is.
Lord Campbell of Alloway: The noble Lord, Lord Scanlon, speaks of reality. One of the great realities which faces us, surely, is that we require a responsible trade union movement. Nothing that I should say should be misunderstood and thought to indicate the contrary, but —and there is a "but"—the reality of the man who joins the union in the circumstances where he cannot earn his livelihood unless he does so—and the noble Lord, Lord Scanlon, then says that there are the rules and constitution and they are complicated but he signs and accepts them—is, in submission, not realistic. Then one comes further along the line to seize the point of realism.
Things happened which the noble Lord, Lord Boyd-Carpenter, referred to but we all know of them without having to refer to them. Anything which I say is assuredly not intended to raise the temperature of this debate for the reason I have already given. But the man grasps the realism, the man cannot take it any longer and he resigns. In those circumstances, sheep—Lord Oram's sheep and goats. It is a very tough goat that puts his job on the line, if he is a sham goat, to fool the arbitrator that he is a sheep. If one looks at it from a realistic point of view, in my submission—and I repeat that nothing I say will ever be intended to be contrary to the trade union interests, as I see them—this amendment affords no fair resolution to a problem which has in it the seeds of injustice.
Lord Howie of Troon: I hesitate to dissent from the views expressed by my noble friend Lord Scanlon but I must do so. In doing so, I realise that I am dissenting from the views of someone whose passionate commitment to the trade union movement has been demonstrated time and time again over a long period and it is a commitment which is quite admirable—and I say that in total sincerity. I myself have been a member of a trade union for most of my life and I now earn my living, in part, negotiating with the unions, the NUJ and NATSOPA. I find in dealing with these unions a picture which is not quite the same as the picture which my noble friend Lord Scanlon sees. I understand how he sees it, and the passion with which he sees it, but it does not look quite the same from each side of the table or from the ends of the table or in the mind of an independent observer.
It is true that individuals join unions voluntarily and accept the rules of the union. It is true also that individuals join unions involuntarily and accept the rules of the unions. And the conditions are different in each of these cases. I think it is important that my noble friends on this side of the Committee should think very carefully about that distinction, about the distinction between the commitment of a volunteer and the commitment of a conscript, however willing he may be to accept the discipline of the union's rules and constitutions, and all those things to which my noble friend Lord Scanlon draws attention.
In my lifetime I have seen people who have voluntarily undertaken union membership turned off by the attitudes of their trade union colleagues, and that is something which seems to have been left out of the debate—at least, on this side of the Committee. My noble friends must realise that it is possible to join a trade union in good faith, to have loyalty to that trade union in good faith, and to wish to continue to have loyalty to the trade union. Yet there comes a time when the union's attitudes and behaviour are improper. We must recognise this on our side of the Chamber and we must recognise that if people, voluntarily or involuntarily, have entered into a compact with a trade union and find through experience that their compact is not living up to their legitimate expectations, they have rights. Where I think my noble friend Lord Scanlon goes wrong—and nobody recognises his sincerity more than I do —is in placing the organisation, the structure, before the individuals who make it up and whom the structure is intended to serve. It is not good socialism and it is not good trade unionism to forget the individuals which the Labour movement is intended to work for.
I do not intend to rebel on this particular amendment. All I do is to urge my noble friends to think very, very carefully about the nature of trade unionism and to reflect on the manner in which they are allowing the attitudes of a particular Secretary of State to provoke them into taking up postures which are mistaken. I would urge: do not be provoked into defending everything that the trade union movement does, because not everything that a trade union does is defensible.
Lord McCarthy: I am afraid we have been drifting away from our comparatively modest amendment. I suppose that was inevitable and it augurs badly in terms of the times of the Committee, for what is going
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to happen when we get on to debate this schedule and whether Schedule 7 shall stand part of the Bill? This is a modest amendment that we have here. I said it was a controversial one, but it is really about the degree of compulsion to be imposed on union membership. What I believe noble Lords do not fully appreciate is that we are discussing this in the context of a post-1971 situation. We are discussing it in the context of unfair dismissal. The fact is that from 1893 onwards the common law had in effect decided that the closed shop was lawful. It remains lawful for cartels and professional associations. It is not entirely lawful for trade unions because they are in the employment relationship, and simply because of the law of unfair dismissal. That is what has changed and that is what had to be dealt with in 1974—the law of unfair dismissal.
The question is: are we to say that all forms of dismissal on grounds of trade union membership are unfair?—in which case we are going back on a policy which has been accepted in common law and in statute law from the end of the 1880s and under the 1906 Trade Disputes Act, and which is still the case in relation to other kinds of combination, which is very unfair—or are we to say: "No, there will be certain conditions and circumstances in which union membership agreements shall be lawful, in which the closed shop is lawful and in which union membership can become a condition of employment"?
Once you take that view and move away from the view that now is the opportunity to make the closed shop in all forms and in all ways an unfair dismissal liability, then you have to specify the grounds and you get into all kinds of practical trouble. The late Labour Government said—may be rightly, maybe wrongly—that you could draw a line down genuine religious conviction. At one stage they added" conscience". The present Government say in addition, "conscience and deeply-held personal conviction". It is a line which could be argued. We are putting in this amendment one small point relating to where that line shall be drawn, not for legislation as a whole for the future but from the point of compensation in the past. We are saying that one way of trying to make that line is to draw a line—I fully accept the words used by my noble friend Lord Oram—between the sheep and the goats, as we see it. I do not suppose we shall convert many people on the other side, but that is the sole limited objective of this amendment.
On Question, amendment negatived.
[Amendment No. 6 not moved.]
Lord McCarthy Lord McCarthy moved Amendment No. 7:
Page 22, line 37, at end insert ("before an industrial tribunal one month after that dismissal").
The noble Lord said: If I may, I should like to take this amendment with No. 8. We are talking here about compensation again. We are back to the detailed way in which the clause is to be applied, and once again we are taking as our model the way in which unfair dismissal legislation works in the ordinary run-of-the-mill way in industrial tribunals. Therefore, we are saying that the clause should be amended so that on page 22, line 37, the provision goes on to read:
" before an industrial tribunal one month after that dismissal".

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We are saying, in other words, that the principles on which compensation should be based should be the same principles as in cases before an industrial tribunal —one month after that dismissal. Therefore, we have to take out several lines further down in the clause; and that is the purpose of Amendment No. 8.
If this amendment were carried, the effect would be that the calculation of the maximum compensation would he taking into account anticipated loss—which is the method by which industrial tribunals decide—and therefore one would try to create the situation in which an industrial tribunal would have had one month after the dismissal, as against the calculation of the maximum which is there in the clause at the moment, which takes into account the actual loss sustained. That is the principle enunciated in lines 43 and 44 which we want to delete.
We would argue that, as it stands, this could mean that the system of compensation for people covered by this clause and the amounts of compensation could and should be quite different from those for all other kinds of unfair dismissal, which are anticipated loss, and not subsequently assessed actual loss. I fully appreciate that this principle could go either way and that on the present system, which we use in the great majority of cases before all industrial tribunals, people may get more by anticipated loss than they actually incur, because two days after they have received their reward from the industrial tribunal they get an enormously improved job and in fact they have very little loss at all.
On the other hand, it could work the other way. Somebody who has been told that he has an anticipated loss would in fact have had a very substantial actual loss. The thing could work both ways. We are not trying to do something that we feel is necessarily against the interests of the individuals covered by the clause. We are trying once again to put this legislation square with the legislation as it exists with all other forms of unfair dismissal. Therefore, I beg to move this amendment.
Earl Ferrers: The basic principle of these compensation arrangements is that what is now to be payable should be broadly what an industrial tribunal sitting at the time of dissmisal would have awarded if it had found the dismissal unfair. The first of these two amendments would place this imaginary tribunal hearing one month after the date of dismissal. In fact, an aggrieved employee has three months within which to go to a tribunal. This amendment therefore seems to introduce an arbitrary time scale, for which there appears to be no obvious merit.
The second amendment is somewhat more complicated. In the interests of common sense and consistency, the Government have added three technical refinements to the basic principle which I have just described, and the amendment would sweep away those refinements. If the second amendment were accepted the first refinement to go would be that in paragraph 3(a). This states that the fact that a tribunal at the time might have ordered reinstatement, rather than compensation, is to be ignored. It seems to me to make little sense to consider at this stage whether an imaginary tribunal would have made an order giving
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the individual his job back. Clearly, that individual did not get his job back or he would not now be seeking compensation. So to take such a consideration into account would, I respectfully suggest, not be sensible.
The second refinement, in paragraph 3(b) of Schedule 1, which the amendment would remove is what I might call a small touch of generosity on the Government's part. If I may put it simply, compensation payments for unfair dismisal have, since June, 1976, been made in two parts. One part, which is known as the basic award, relates to the age and length of service, and the second part, which is known as the compensatory award, is designed to compensate for actual financial losses as a result of the dismissal. The complication arises because, before 1976, there was no basic award, although the second compensatory part was available. The Government wished to make consistent arrangements for all the candidates for compensation, so we added paragraph 3(b), which allows for an equivalent to a basic award to be paid to everyone w ho is eligible, whether he was dismissed before, or after 1976.
The third refinement, which the amendment would remove is in paragraph 3(c). This allows the imaginary tribunal to be credited with knowledge of what actually happened between dismissal and the present day. Normally, in assessing the compensatory part of the award, a tribunal has to guess at what may result in the future as a result of the dismissal, on the basis of such knowledge as is available to it at the time. But under this Bill these losses will now be known and, as the noble Lord, Lord McCarthy, said in some cases they might be higher than that which would have been imagined, and in other cases they might be lower
The fact is that they would be known and it is only common sense to base compensation on the reality of what has actually happened, rather than on the guesses which a tribunal might have made at the time. These amendments would, I suggest, create arbitrary obstacles to the practical operation of these arrangements, and I hope that the noble Lord, Lord McCarthy, will therefore not seek to press them.
On Question, amendment negatived.
[Amendment No. 8 not moved.]
6.4 p.m.
Viscount De L'Isle Viscount De L'Isle moved Amendment No. 9:
Page 22, line 47, at end insert—
("() Subsection (3) shall be applied to take also into account the cumulative effects of inflation since the dismissal occurred and any legal or other special costs incurred by the person dismissed in his attempts to obtain proper compensation.").
The noble Viscount said: I am sorry that the noble Earl, Lord Gowrie, is not on the Front Bench. I should have liked to add my welcome to that rendered to him by both sides of the Committee. I hope that he has not gone back to the Emerald Island and will be here during other parts of our proceedings. The noble Earl, Lord Gowrie, referred to the compensation paid to those who had proceeded to Strasbourg, and I think that it was the noble Lord, Lord McCarthy, who referred to the golden road to that city. If he was referring to the three ex-British Railways men, I have to tell the Committee that, apart from a small eleemosynary payment before Christmas, no compensation has been received by the railwaymen, because no

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friendly settlement has yet been achieved. But that helps to illustrate the point of my amendment.
Those three gentlemen were out of their jobs from 1975. If they, and those who have suffered with them, are compensated on the basis of money values in that year, it does not need a statistician to calculate roughly what would he the value of that money in present-day terms. Therefore, I ask the Government to add this clause in fair justice to those people, because other people—even noble Lords on the Front Bench and Members of Parliament—have had their wages increased. Although it may be the intention of the Government and the Secretary of State to pay them compensation which allows for a diminution in the value of money, they have not so declared. Therefore, I ask that they should now declare that this is their intention. I beg to move.
Lord Spens: If I may make one small addition to what the noble Viscount has just said, I have asked the Library to make a quick calculation of the increase in the retail price index since 1st January, 1976. To date, it has risen by 117.7 per cent., which means that the value of any awards to anyone in 1976 has gone down by at least 50 per cent. and should, therefore, he doubled in order to bring about a reasonable and satisfactory compensation.
Lord Molloy: When the noble Earl is addressing himself to the noble Lord, I wonder whether he will apply the same argument to the trade unionists who have made their submission for a wage increase on the same basis, that inflation is eating away their standards of life.
Earl Ferrers: That is wholly outside the amendment. Therefore, I shall satisfy myself with not addressing my mind to that point.
Lord Molloy: I cannot allow the noble Earl to get away with that. If he does not reply to what I said, he cannot reply to what the noble Lord said. Accuracy on a vital issue like this cannot be smothered away in a few seconds with a tiny bit of humour, because there are 12 million people outside this Chamber who will be watching desperately what will happen if their standards of life are depressed, and if their rights to increase them in order to enable them to buy things from manufacturers and many organisations which are represented by noble Lords opposite are lost. That is all they want to do with their wage increases, and I fear that they will not be prepared to have a vital aspect of their point of view dismissed by a cursory joke.
Earl Ferrers: The noble Lord, Lord Molloy, said that I cannot answer the noble Lord, Lord Spens, without answering him. All I can say to the noble Lord is that he had better wait and see. What he said was totally out of context with the amendment. But as I have not even been permitted to reply to the noble Lord, Lord Spens, the noble Lord, Lord Molloy, does not know whether or not he will be satisfied—
Viscount De L'Isles: Do not forget me.
Earl Ferrers: My noble friend had a part in this amendment. He merely moved it. Therefore, if I may he permitted the courtesy of your Lordships to make my speech in my own way, bad though it may be, I shall endeavour, probably inappropriately and inadequately, to satisfy all sides of the Committee.
If I may first address myself to the amendment which my noble friend moved, this would increase the compensation which is payable. Naturally, the Government have a good deal of sympathy with the sentiments which have been expressed by the mover of the amendment, but, for reasons which I shall explain, and which I hope will be understood, we would prefer this amendment not to be made.
There are two strands to the amendment. The first is that under the amendment compensation would have to be calculated, taking full account of inflation since the date of dismissal. As your Lordships will appreciate, the Government have not ignored the ravages of inflation in drafting this part of the Bill. Paragraph 3 of Schedule 1 provides that interest is to be payable on the sums of compensation which are calculated to be appropriate by the appointed person. What we have done is to apply exactly the same principle which is employed by the High Court where it considers that a plaintiff has been kept out of money which he should have had earlier. That is the explanation of the reference to an Act of 1838 which your Lordships can see in Schedule 1. I can assure your Lordships that the rates of interest payable are not those which prevailed in 1838. The rates under that old enactment have moved with the times. The rate which is currently payable stands at 14 per cent. per annum.
This interest will not amount to total protection against inflation—there, perhaps, I have answered totally satisfactorily the question asked by the noble Lord, Lord Molloy—although it will go a substantial way towards doing so. But it is our judgment that it would be wrong to place beneficiaries under the compensation scheme in an uniquely privileged position in relation to inflation and in relation to all other cases which are treated in this way. That is why we base this interest provision in the Bill on the normal practice which prevails in the High Court.
The second part of the amendment calls for account to be taken, in determining the compensation which is now to be payable, of any legal or other special costs which may be or which may have been incurred by applicants in their attempts to obtain compensation. I have explained in relation to earlier amendments the general principle behind the assessment of compensation under the Bill, which is that the compensation now payable is to be calculated on the basis of what an industrial tribunal would have awarded the applicants at the time, had their dismissals been found to be unfair.
Industrial tribunals can include in such compensation any expenses which are reasonably incurred by a complainant in consequence of the dismissal, but legal costs are not covered. The reason for this is that it is considered that complainants who come before tribunals do not need to have legal representation at industrial tribunal hearings. This is not therefore a cost which is normally met from the public purse.
It is only right that once again we do not place applicants under these compensation arrangements in

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the Bill in an uniquely privileged position in that respect. I understand my noble friend's difficulty about the people who went before the court. I understand that an interim award only has been received and that the case is before the court now, but in view of the reasons which I have given I hope that my noble friend will consider that the purposes which this amendment seeks to cover are in fact covered in the Bill.
Lord Renton: As I had to attend a long meeting of Sub-Committee E of the European Select Committee of your Lordships' House I was unable to hear the first part of this debate, but I know quite well what must have been said. Indeed, it has been admirably reflected in the speech of my noble friend Lord Ferrers. My attitude to the matter is to a very great extent governed by the unfortunate experience of the three railwaymen and the terrible delays that have taken place in their three cases. Their cases were started, I believe, nearly five years ago and even now they have not been resolved. That was not entirely—in fact, scarcely—the fault of the European Court. I am sorry to say that it was very largely the fault of various branches of Her Majesty's Government. One has to face this fact. If, therefore, my noble friend Lord Ferrers could give us some idea of the expedition, or lack of expedition, with which these other cases which will come under the statute eventually will be dealt with, it would enable my noble friends to judge what they should do as a result of the reply which my noble friend Lord Ferrers has given.
Lord Davies of Leek: Further to that point, the noble Baroness, Lady Seear, raised the point of the £211/4 million for xpenses. Have we been dealing with inflation accountancy? Am I right in assuming that the Government would have to give at least an increase of that amount and that it would be part of the expenses of many of these cases which have been held up? We are pushing judges more and more into a difficult situation relating to trade unionism. The Government and Members on both sides of the Committee know well that a worker who is dismissed for non-member-ship can claim compensation from both employers and the union, in which case the tribunal will ultimately decide what proportion is to be paid by each side. This would be temptation, but under Clause 9 and other parts of the Bill the union could ultimately be made to pay the whole amount. This is a point which has to be remembered when one considers the attack on the unions. This is a second attack which follows on from the attack in the last Employment Bill with which we dealt.
Lord Spens: May I answer the point made by the noble Lord, Lord Molloy. I have in front of me the same journal from the Department of Employment from which I extracted that increase in the retail price index. It shows also the increase in average earnings. Since 1976, the increase in average earnings amounts to 205.5 per cent., so I do not think that any of the 12 million trade unionists mentioned by the noble Lord, Lord Molloy, have any need to worry about the situation.
Lord Harris of High Cross: Since we on the Cross-Benches are not always animated by the passions which rage on the two sides, I wonder whether I could try to reconcile the noble and gallant Viscount who moved the amendment with his leader on the Front Bench. There is a problem, if you take the issue of inflation and interest rates together. It is quite clear that if there had been nil or modest inflation since the 1970s when these settlements might have been made, the interest rate in the intervening period would have been, typically, 2, 3 or 4 per cent. That is the real rate of interest which prevails over a period when inflation does not disturb our calculations. If, therefore, I heard the noble Earl, Lord Ferrers, correctly—that there will be a 14 per cent. cumulative interest rate allowed—that amounts over a five year period precisely to a doubling of the capital sum. Actuarially, a 14 per cent. interest rate exactly doubles your money in five years. It is known as the rule of 70: five fourteens are 70. Therefore, I believe that we have resolved the issue. The interest rate will accomplish the purpose sought by the noble and gallant Viscount and peace may therefore reign on the Conservative Benches.
Lord McCarthy: It gives me great pleasure to agree with the Government on something tonight. We would put forward three arguments against accepting the amendment. First, it goes back to a point which I made earlier. It is a consequence of the wrong basis for compensation. Because the Government are seeking to make a distinction for these people and to introduce a quite different system of compensation based on actual loss rather than anticipated loss, they reach an apparent anomaly in which they are anticipating, or trying to assess, something which has moved as a result of inflation. If they had accepted our basis for loss, they would not have this problem. Secondly, the amendment would, if accepted, be a further departure from the way in which industrial dismissal compensation is assessed and from the way in which compensation is assessed in all other forms of tribunals. They do riot get their assessments inflation hedged. Thirdly, as the noble Earl has said and as he has been supported by the Cross-Benches, built into the clause as it stands, because of what we have on interest payment, is a very substantial element of indexing, anyway. We oppose this amendment.
Earl Ferrers: We seem to be getting on famously and I am glad that the noble Lord, Lord McCarthy, and I both agree that, on the whole, the amendment would not be an improvement to the Bill. The method by which compensation is payable, as I have explained, in fact allows for interest to be paid. I said that interest was running at the rate of 14 per cent. at the moment. In fact, the interest would be calculated on the basis of the interest rates which prevail during the course of each year for which the person was denied his monies. The principle of that is that it gives the person the interest for the money he should have had. It does not seek to take into account inflation. The fact that it may almost cover inflation would be incidental. I can assure the noble Lord, Lord Harris of High Cross, that peace will reign on the Conservative Benches—if it did not reign before.

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The noble Lord, Lord Davies of Leek, asked whether the £2 million would be sufficient if inflation was to be taken into account. That figure can be increased at a later date by money Resolution should it be found to be inadequate. I wonder if I could refer to the particular case of the British Rail employees which has been mentioned by a number of noble Lords. It may help if I make it clear at the outset that it is not intended that these three men should receive compensation under the arrangements which we are now debating. This is because they will be compensated as a result of their successful case before the European Court. It may also be helpful if I underline the current position on compensation for these British Rail employees. As some of your Lordships will know, after the court's decision was announced the question of compensation was referred back to the European Commission of Human Rights to see if they could negotiate a friendly settlement between the railmen and the Government. Regrettably, this did not prove possible, with the result that the question of compensation has now been referred to the European Court of Human Rights, who will pronounce upon it. Therefore, the question of compensation is at the moment sub judice, and it would be incorrect for me to comment upon it.
My noble friend Lord Renton asked how quickly these applications would be dealt with. It is always difficult to give a precise figure. I would have anticipated that they will be dealt with in a few months of the application being received.
The Deputy Chairman of Committees (Baroness Wootton of Abinger): Does the noble Viscount wish the amendment to be put, or does he wish to withdraw it?
Viscount De L'Isle: Withdraw.
Amendment, by leave, withdrawn.
6.23 p.m.
Lord McCarthy Lord McCarthy moved Amendment No. 10:
Page 23, line 33, leave out ("may, if he thinks fit") and insert ("shall").
The noble Lord said: This is the last amendment we intend to move before we come to the clause stand part debate. It is really again making the point, about the discretionary elements in this clause and the extent to which everything is left to the Secretary of State. Because I am moving No. 10 I do not propose to move Amendments Nos. 11 and 13, and Amendment No. 12 has already been talked about. Perhaps the Committee will allow me to drag the arguments together for all these amendments, because in these amendments essentially we are making a point which we are making in the clearest possible way in Amendment No. 10.
Amendment No. 10 draws the attention of the Committee to the fact that at the moment, as the clause stands, the Secretary of State can completely ignore any recommendations or proposals, if he thinks fit, of his self-appointed person. In Amendment No. 11 we are trying to restrict the sense in which he can make any payment other than that of his appointed person. In Amendment No. 13 we are seeking to show some way in which one might try to modify the extent to which he was bound by the findings of fact in such
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proceedings or in a report issued by the appointed person.
The situation now under the clause—and none of our amendments has found favour with the Government tonight and so the clause remains exactly as it was—is that the Secretary of State, it is true, set up, we suppose, this quasi-judicial authority of the appointed person, but that this appointed person does not necessarily consider all cases because the Secretary of State does not have to refer them all to him. Even if the Secretary of State does refer a case, he does not have to take any notice of what the appointed person says; and even if he makes a report the Secretary of State does not have to publish that report. Then, even if the appointed person says that the complainant before him should have no compensation or a very low level of compensation, the Secretary of State is free to tell us, if we ask him, whether he has decided not to abide by the report, but not to tell us what it was. He is free to decide for himself what level of compensation he wants to give.
We say that this is a monstrous procedure. Going back to an argument we had earlier with the Government Front Bench, we say that this is essentially a tribunal affair. One is trying to decide whether what one man says is so. Other men are entitled, in fairness and in natural justice, to come and say whether they agree or not. At the end of the day, justice should be done and should be seen to be done. If the Government go so far as to set up an appointed person, if not a tribunal, then they should be bound by what that appointed person says. They should tell us what is said, and they should not be free to give compensation which is totally at variance with, and might be totally opposed to, any report which their own selected, appointed person makes. I beg to move.
The Earl of Gowrie: As I understand them, the amendments of the noble Lord, Lord McCarthy, would require the Secretary of State to refer any applications to an appointed person in place of the provisions of the Bill, which merely enable him to do so if he thinks fit. Surely it would be inappropriate and wasteful to be required to refer all cases to the appointed person, because commonsense suggests that inevitably there will be cases where the applicant is quite clearly ineligible for compensation. He might, for example, have ruled himself out. This point arose at Committee stage in another place. I can do no better than repeat what my honourable friend the Parliamentary Under-Secretary said then:
" The Secretary of State would not refer a case to an assessor when, for example, the person applying for compensation had filled in the initial form and declared that he was dismissed in 1971. In such circumstances it would be a complete waste of everyone's time if the case went to an assessor because the applicant would have disqualified himself from compensation by his initial statement. I can assure the Opposition that if a prima facie case is advanced by the applicant in his initial application, that case and every other case will go to an assessor for him to help the Secretary of State."
I can assure the Committee that applicants whose cases are not referred to the appointed person will be told the reason why.
Again, an assurance to this effect was given by my honourable friend. Having been given the reason why presumably a person could go back and find out

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whether there were other good reasons why he should apply. With those assurances, I hope that the Committee will agree to reject the amendment which, if we passed it, would cause an enormous amount of niggling, time wasting and bureaucratic procedure—and I am surprised that the noble Lord has put it forward.
Lord Kilmarnock: If the noble Earl will forgive me, I am not sure we can accept his argument that this would cause a great deal of administrative delay of an expensive nature. If an assessor has to exist in any case, is there any reason why all the potential cases should not he sifted through to him? Obviously, all those which do not require his attention could be put on one side. This happens perfectly normally in your Lordships' own committees, when documents from the EEC are put into a sift, some marked A, some marked B, some marked C. I see no reason whatsoever why this should not happen in this case.
The Earl of Gowrie: Again the noble Lord, Lord Kilmarnock, is edging towards an interpretation of the role of assessor as a kind of independent quasi-judicial, quango-like being. He is not. He is there to help the Secretary of State. The important figure in all this is the Secretary of State. That is, of course, a difference of view between us and the noble Lord, Lord McCarthy. The reason for this, as I rehearsed at an earlier period of time, is that we are not in territory here where we are trying to establish the rights of individuals or the wrongs of their case, but to correct injustices created at a particular period of time for particular individuals, which has now been corrected in terms of the broad judicial principle by the 1980 Employment Act.
Lord McCarthy: The noble Lord does not help me; he makes me despair. I do not see how he can say that he is not trying to establish the rights of individuals. On exactly this basis, the Government tell us, the rights of individuals will be established by industrial tribunals under the 1980 Act. The 1980 Act will decide in precisely the same circumstances, the Government tell us, whether or not there has been an unfair or a fair dismissal, and they will do it by the system of a tribunal, they will do it by a judge, they will do it by a quasi-judicial process; they will not do it by trusting the Secretary of State.
I really cannot see how the Government can have it both ways. On the one hand, the main stream of their legislation is to be administered through industrial tribunals. They have said in particular under what circumstances there will be fair and unfair dismissal from union membership agreement areas under the 1980 Act. They then seek to reconstruct in the 1982 Act a sort of shadow 1980 situation, so that the same thing applies as though there was a judicial system, as though there were tribunals, and they even say that the compensation method is the same. Yet the noble Earl comes along and tells us that he is not trying to ips divided: Contents, 61; Not-Contents, 102. DIVISIO establish the rights of individuals; he wants an assessor and he does not want a judge. We must press this amendment to a Division.
6.33 p.m.
On Question, Whether the said amendment (No. 10) shall be agreed to?
Their Lordship divided: Contents, 61; Not Contents, 102.

DIVISION NO. 2

CONTENTS

Airedale, L.

Lloyd of Kilgerran, L.

Allen of Fallowfield, L.

Lovell-Davis, L.

Amherst, E.

McCarthy, L.

Ardwick, L.

Mackie of Benshie, L.

Aylestone, L.

Mais, L.

Bacon, B.

Melchett, L.

Bernstein, L.

Mishcon, L.

Beswick, L.

Molloy, L.

Blyton, L.

Oram, L. [Teller.]

Boston of Faversham, L.

Peart, L.

Briginshaw, L.

Phillips, B.

Brooks of Tremorfa, L.

Pitt of Hampstead, L.

Byers, L.

Plant, L.

Chitnis, L.

Rochester,L

Cledwyn of Penrhos, L.

Seear, B.

Collison, L.

Simon, V.

Davies of Leek, L.

Stewart of Alvechurch, B.

Ewart-Biggs, B.

Stewart of Fulham, L.

Gaitskel I, B.

Stone, L.

Gladwyn, L.

Taylor of Gryfe, L.

Glenamara, L.

Taylor of Mansfield, L.

Hall, V.

Underhill, L. [Teller.]

Hampton, L.

Wells-Pestell, L.

Hatch of Lusby, L.

Whaddon, L.

Howie of Troon, L.

White, B.

Irving of Dartford, L.

Wigoder, L.

Jacques, L.

Wilson of Langside, L.

Jenkins of Putney, L.

Winstanley, L.

Kilmarnock, L.

Wootton of Abinger, B.

Kirkhill, L.

Wynne-Jones, L.

LIewelyn-Davies of Hastoe,B.

NOT-CONTENTS

Allerton, L.

Glasgow, E.

Alport, L.

Glenarthur, L.

Avon, E.

Gormanston, V.

Balfour of Inchrye, L.

Gowrie,E

Belhaven and Stenton, L.

Greenway, L.

Beloff, L.

Gridley, L.

Belstead, L.

Grimston of Westbury, L.

Bessborough, E.

Halsbury, E.

Boardman, L.

Hankey, L.

Boyd-Carpenter, L.

Harvington L.

Brougham and Vaux, L.

Home of the Hirsel, L.

Burton of Coventry, B.

Hornsby-Smith, B.

Caldecote, V.

Hylton-Foster, B.

Campbell of Alloway, L.

Kilmany, L.

Cathcart, E.

Kinloss, Ly.

Chelwood, L.

Kinnaird, L.

Clifford of Chudleigh, L.

Lane-Fox, B.

Colville of Culross, V.

Lauderdale, E.

Colwyn, L.

Long, V.

Cottesloe, L.

Lucas of Chilworth, L.

Daventry,V

Lyell, L.

Davidson, V.

McFadzean,L

De Freyne, L.

Mackay of Clashfern, L.

De La Warr, E.

Macleod of Borve, B.

De L'Isle, V.

Mancroft, L.

Denham, L. [Teller.]

Mansfield, E.

Dilhorne, V.

Merrivale, L.

Eccles, V.

Mersey, V.

Ellenborough, L.

Monson, L.

Elliot of Harwood, B.

Morris, L.

Elton, L.

Mottistone, L.

Fairfax of Cameron, L.

Moyola, L.

Faithful, B.

Murton of Lindisfarne, L.

Ferrers, E.

Onslow, E.

Forester, L.

Orkney, E.

Fortescue, E.

Orr-Ewing, L.

Gisborough, L.

Pender, L.

713

Portland, D.

Stradbroke, E.

Rankeillour, L.

Swansea, L.

Renton, L.

Swinfen, L.

St. Aldwyn, E.

Swinton, E.

St. Davids, V.

Terrington, L.

St. John of Bletso, L.

Thomas of Swynnerton, L.

Saltoun, Ly.

Tranmire, L.

Sandford, L.

Trenchard, V.

Sandys, L. [Teller.]

Trumpington, B.

Sharpies, B.

Vaizey, L.

Skelmersdale, L.

Vaux of Harrowden, L.

Spens, L.

Vivian, L.

Stamp, L.

Wise, L.

Stodart of Leaston, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendments Nos. 11 to 13 not moved.]
On Question, Whether Schedule 1 shall be the first Schedule to the Bill?
6.41 p.m.
Lord McCarthy: We now come to the question of Schedule 1 and Clause 1 because they are, as all sides of the Committee have accepted, intimately related to each other. We come to a situation where, totally unamended, we have to decide whether we can support them or not. We have said—and the noble Lord, Lord Wedderburn of Charlton, said in particular in opening the debate on the first amendment—why we find these two sets of provisions unacceptable. As he said, there was no consultation with the other interested parties. Every other part of the Bill, whatever one might think about it, was the subject of consultation with the CBI, the TUC the employers' associations, the Institute of Personnel Management and so on. Every part of it was, in a way, in the Green Paper and in the consultative document. That cannot be said of these provisions.
Secondly, these provisions have been opposed by many employers—I do not say by all employers, I do not say (because I do not know) by the majority of employers, but by a number of influential and important employers' associations; for example, the Engineering Employers' Federation, the British Institute of Management and the Institute of Personnel Management. Those three organisations, for example, have had considerable reservations about the practicality, about the sense and about the equity of introducing these provisions at this time.
Thirdly as the noble Lord, Lord Wedderburn, also said and, indeed, as he quoted from the Secretary of State to show, there can be no doubt that what is provided here goes far beyond what the European Court suggested. I want to say something in this debate about my attitude towards the European Court decision and about the attitude that we take towards the European Court decision, because it is time that something was said. Let me say something negative. There was nothing in the European Court decision which covers the kind of matters which are being introduced in Clause 2, and there is nothing in the European Court decision which covers many of the provisions of Clause 1 and this schedule. The European Court decision, as we see it, essentially goes centrally to the question of existing employees.
Next, £2 million has been put aside. Based on the figures of Professor Gennard, it works out at
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something like £5,000 or more for each one of those people if, in fact, they all come forward. It is a considerable sum of compensation—£2 million of public funds. No case has been make out for wide-spread abuse and no case has been made out, I suggest, in this Committee tonight for distributing that sum in that particular way.
I would remind the Committee of the series of amendments which we have put down in an attempt genuinely to improve the way in which this sum is distributed by moving back into the way in which unfair dismissal compensation is assessed in all other unfair dismissal cases, including unfair dismissal out of union membership agreements under the 1980 Act; by referring the matter to an industrial tribunal; by giving those involved a right of representation; by ensuring that the Secretary of State even if he had discretion had to have respect for tribunal criteria such as, for example, the assessment of compensation; and by saying that at least the Secretary of State should be bound by the report of the person he appointed. None of those amendments has found any acceptance on the other side. We have had instead, as the noble Lord, Lord Wedderburn, suggested, a series of assertions about victims working in open shops who would be victimised or would not make their peace with the union, with no attempt to sustain what has been said.
So there is only one case left for this schedule and this clause and I have to address myself to that before dividing the Committee on whether this particular Schedule 1 should be agreed to. There was something strange about the 1974–1979 period and that was said by the Secretary of State in another place. On 16th March at column 474 of Hansard in another place he said:
"1974–79 was the only period when public policy positively encouraged dismissal without remedy from closed shops even on grounds of conscientious objection to union membership".
I repeat:
"without remedy from closed shops even on grounds of conscientious objection to union membership".
I suggest that that is at best a statement of ignorance and at worse an intentional misrepresentation of the facts.
Public policy—if it be public policy to allow a legal position to perpetuate and continue—has encouraged dismissal without remedy at least since 1893, since the decision of the Mogul Steamship case. It is true that, of course, the consequences of that case, which concerned a cartel of shipowners, was not applied to the trade unions until somewhat later. But it is now universally accepted that it should have been applied at the time of the 1893 decision and if it was not applied immediately afterwards—and of course it subsequently was applied—and if it is difficult, for example, to reconcile the trilogy of cases decided at that time one with another, that is because the judges unfortunately were showing their partiality against trade union organisation. But by the 1900s they had recovered their impartiality and in the 1920s in a whole series of cases, the most famous being Reynolds v. Shipping Federation in 1924, they established absolutely clearly the legality of the closed shop at common law. There was no protection, no remedy for dismissal for anyone in this country until 1971. If that was not enough, if it was

715
just the common law, in 1906 Parliament enacted the Trade Disputes Act which quite specifically was designed, or one of its provisions was designed, to legalise what we now call union membership agreements.
The common law being what it was and what it is, there continued to be bumps. One of the famous bumps was the case of Rookes v. Barnard which required yet another piece of legislation in 1965. Nevertheless, the situation is that all that time until 1971 those well known supporters of trade unionism—Stanley Baldwin, Bonar Law, Neville Chamberlain, Winston Churchill and Harold Macmillan himself—all sat down in a situation in which the closed shop was perfectly, completely and utterly lawful and in which public policies positively encouraged dismissal without remedy from closed shops, even on grounds of conscience and objection to union membership!
Lord Campbell of Alloway: If the noble Lord would give way for a moment, with the greatest respect, I think that Reynolds v. The Shipping Federation was reported in 1924 Chancery Division and was a decision at first instance. So far as I remember, the whole legality of the closed shop was considered by the House of Lords in Bonser v. The Musicians' Union, which was before the Act to which the noble Lord referred. I may be wrong, but that is my recollection of the law.
Lord McCarthy: I think that the noble Lord is right, but it does not affect the point. I am saying that there was a whole series of cases in which in common law judges accepted what they came to call the "trading interest defence". Indeed, they were bound to do so if they were fair since the Mogul case, because the Mogul case presented that if you had a combination of people—whether it was a combination of trade unionists, employers or whoever—and in combination they harmed other people, if they could provide themselves with a trading interest defence and if they could show that they were not doing it on grounds of malice but were doing it to defend their trading interests, the courts would not interfere with the regulation of competition. In fact, in the leading cases they had a classical defence in terms of laissez faire; they said that it was not for the courts to intervene.
I am saying that Reynolds was a case in point. I could have quoted the most extreme case in 1944—the Crofter case—where it is arguable that the House of Lords in the Crofter case went further than the 1906 Trade Disputes Act lawfully to accept the provisions of a closed shop. Therefore, we go back to a situation in 1971. The present Secretary of State for Employment is quite wrong in saying that this is the only time we have allowed the closed shop to be lawful.
What happened in 1971 was that we created unfair dismissal rights. As I tried to say earlier this evening, once you create unfair dismissal rights, you have to face the question: shall these circumscribe or in any way constrain the already accepted common law on statute right to refuse to work with non-unionists and to make trade union membership a condition of employment? It is fair to say that under Mr. Heath
716
the Conservative Government—though it is not acceptable to the present Government to mention anything of this kind about Mr. Heath—actually went further than they have dared to go so far. He made the closed shop unlawful—utterly and completely. You could have agency shops if you were a registered union, but you could not make trade union membership a condition of employment.
Then we had a Labour Government who decided—I do not want to shorten this long discussion—that they wanted to allow genuine religious objection. The present Government, building on the European Court decision—though I must say that the present Secretary of State does not do this—seeks further to constrain the limits under which unfair dismissal is acceptable in a union membership agreement and to constrain the circumstances in which a fair dismissal was possible inside a union membership agreement. We are saying tonight that to all practical purposes they have made union membership agreements un-enforceable. We opposed that when they did it in the 1980 Act and, therefore, we oppose it when they want to do it backwards into the period of 1974–79.
Noble Lords may say: What about the European Court decision? We take the view that the European Court decision does not go to the issue of personal conviction. Any references to deeply held personal convictions in the Strasbourg decision are not germane to the central issue; they are what we in this country call obiter. The Strasbourg decision had nothing to do with ballots, pace the 1980 Act. It has to do with the existing employees. It is perfectly true that there are references in the Strasbourg decision to the need for a choice between unions. The Government are not proposing this, but we have an amendment on paper which will be discussed either tonight or at some other time, which deals with that issue. We shall define our position then.
However, the central question is whether one accepts the Strasbourg decision from the point of view of what it does to existing employees. I am bound to say that I do. I am in a fortunate position because in 1964 I published a book called The Closed Shop in Britain, and I actually have a copy, though no one else seems to have one. The main reason that I know so much about Professor Gennard is that he is going to make it out of date, curse him. However, in that book I suggested in 1964 what I then called a registration shop agreement, and I continue to believe that a registration shop agreement is the best way in which to solve the central problem of the existing members. It is the best way in which to reconcile existing legislation with the Strasbourg decision, and it will operate in a much more civilised way than anything which is being put forward by the present Government.
Therefore, as everyone else has done so, I intend to read from The Closed Shop in Britain. I said that there should be three conditions to be satisfied and that when those three conditions were satisfied, it would be unlawful for any union to proceed against an existing non-unionist on grounds that he refused to belong to the union. I said:
"all future labour engaged on certain types of work in certain areas must become and remain members of specified unions; (2) Existing members in those areas would not be permitted to lapse from the union, and if expelled lawfully would be liable to be discharged; (3) Existing non-unionists in these areas would be

717
'encouraged' to join the union, and if they refused reasonable 'efforts would be made to employ them in areas not covered by the registration shop."
But that if an employer was prepared to say to a union that he would sign conditions one, two and three—this was at a time when we did not have unfair dismissal legislation, at a time when the closed shop was perfectly lawful and the then Conservative Government were quite happy to see it continue—in those circumstances and under that condition any union which proceeded against an existing non-unionist could be unlawful. I believe that we could move to a situation in which a registration shop agreement was the proper, civilised way to deal with the very real problem of existing members. But this provision, this statute, these clauses and this schedule are not the way, and we wish to oppose them.
Lord Rochester: I simply want to say briefly from these Benches that throughout the period from 1974 to 1980 we have consistently argued that grounds for unfair dismissal should include, not, it is true, deeply held personal convictions, but conscientious grounds as well as grounds of religious conviction. It is for that reason that we shall vote for this clause standing part of the Bill.
Lord Hatch of Lusby: Very briefly, as I know that we want to adjourn, my objections to Clause 1 and Schedule 1 are twofold. The first is contained in the words in Clause 1 "who in certain past cases". In other words, as has already been mentioned this afternoon, this is retroactive legislation which I, personally, think is bad and dislike, whichever party happens to be in government. But it was described by the noble Earl, Lord Ferrers, as retrospective justice. This seems to me to be very revealing. Why is it that the defence of the non-unionist or the lapsed unionist is retrospective justice, and why is it that the years 1974 to 1980 are so important? What about before that? Was it not retrospective justice to compensate those who were unfairly dismissed before 1971 when they had no right to any redress? That is my first point.
My second point is that this is a political Bill brought forward for political reasons with the eyes of its movers on the Conservative Conference in October, and has very little, if anything to do with the conduct of industry in this country or with those who work in industry. Of course the closed shop, a voluntary closed shop, has always been the objective of the trade union movement. That is what makes sense. When the working class were attempting to defend themselves against their masters, the nearer a union got to 100 per cent. Membership the stronger it was.
That is still the case. But I believe that that situation has now started to crack. Even when there have been full closed-shop agreements, two-thirds of them have always allowed the conscientious objector to union membership. But now this Government are determined that they are going to break the trade union movement, and they have selected this particular issue. I ask again why is it different to have a man or woman dismissed unfairly because of breaking a union agreement, of leaving the union, than it is to have a man or woman dismissed unfairly by an employer? And this still continues. Above all, may I ask the
718
spokesman for the Government, why is it more important to defend the non-unionist who is dismissed than it is to defend those who are dismissed, and are being dismissed, through sex or racial discrimination?
I understand that the average or the median figure for compensation at industrial tribunals for unfair dismissal is under £600. According to this Bill we have been told, and we were told from the other place, and told in the Standing Committee in the other place, some people can expect to get between £20,000 and £30,000. Why the difference? I suggest that the difference is to be found within the Conservative Party and not within the industrial field of this country.
Finally, as this attack on the trade union movement progresses it will become obvious that the Government—already it is being forecast that there will be another Bill next year—are determined to break the trade union movement of this country because they know that a strong, united trade union movement means a strong Labour Party and a strong Opposition. We have not been given answers to any of these questions either in the other place, or in the Standing Committee, or here.
Above all—I come back to the noble Earl—nobody is asking you to publish the Gennard Report; nobody has ever asked for that; all we have asked is that we be given the same material that is available to the Government in discussiing this Bill. That has not been done. All that was given even in the Standing Committee was a couple of sheets of paper. We have not had even those.
Why is it—and I suggest that there is a simple answer—that those who have read the Gennard Report, which apparently is not included in the night-time reading of the Secretary of State, apparently do not believe that it can be equated with this Bill? Therefore, the Government want to get this Bill through before the Gennard Report is published, or before the information that Gennard has produced is available to Members of Parliament.
I am sure that Members of the Front Bench opposite, as has happened frequently in the past, will accuse me of making a class-biased speech. Yes, that is what I am here for. But let me point out that the introduction of class bias came from the Government when they published this Bill. Nobody can read this Bill and consider for one moment that the Government are other than completely anti-trade union. They are not legislating for the employers. They are not legislating for the companies. They are legislating for trade unionists. I consider it blatant effrontery to suggest that those of us who are opposed to this Bill, with the whole weight of the trade union movement of 12 million people behind us, are introducing class into this discussion, because the class element of this Committee was introduced when this Bill was published, and it was introduced by the Government.
7.7 p.m.
Lord Howie of Troon: I shall be brief. This is the kind of legislation which arouses strong passions. That is clear from speeches we have heard this afternoon, and that of my noble friend Lord Hatch who has just sat down. The reason why it arouses these passions is because ideologies are involved. It is because of these passions and the ideologies that I would ask the Government to pause even at this late date and consider

719
whether or not they are doing the right thing in Schedule 1.
The Government should really consider the nature of the legislative process. It is one thing to pass measures through Parliament, through both Houses. That can be done with the aid of majorities and with the co-operation of Members, and laws can be passed. But the passing of laws is only the beginning. Once a law is passed, it has to work. It is the working of a law which is important. That means that the kind of laws we pass here ought to be laws which are likely to work. Legislation of this kind has one powerful characteristic; namely, that in order to work it depends to a very large extent on the willing acceptance of the people to whom it is applied and on their co-operation in making the legislation work.
It seems to me, and I have said this before, that there are many parts of this Bill which are sensible and sound, but Clause 1 and Schedule 1 are not among them. Clause 1 and Schedule 1 have, from the Government's point of view, one overwhelming defect, and that is that they are held to be offensive by a great many honest and law-abiding trade unionists. Not agitators, not Trotskyists, but ordinary working folk. They believe that these clauses are wrong.
They believe that they are wrong for two reasons, both of which have been mentioned today. The first is that the compensation offered is out of key with the compensation offered for other kinds of unfair dismissal. That is not thought acceptable by ordinary honest folk, nor should it be. Secondly, the determination of the amount of compensation is seen to be in the hands of the Secretary of State, and his alone, despite the gloss which was put on the constitutional arrangements earlier by the noble Lord, Lord Boyd-Carpenter. It is not thought acceptable that the compensation should be in the hands of the Secretary of State without it being open to the fullest scrutiny.
For those reasons, it is clear to me, and I hope to other noble Lords, that the schedule does not make the Bill acceptable to people generally, and because the schedule makes the Bill unlikely to be accepted, it makes the rest of the Bill unlikely to work, and that is why the Government should think carefully about the matter. There is little point in throwing away those elements of the Bill which they think are desirable and worthy—I agree with them on many of them—for the sake of the provisions which are seen to be ideological in content and which seem to be aimed at assuaging ideological appetities rather than doing anything else. I appeal to the Government to think again and not to throw away the whole Bill in order to gain a point at the beginning of it.
The Earl of Gowie: It rather grieves me to have to start by making remarks—I shall try to concertina them because I know we want to adjourn—by way of disagreement with the noble Lord, Lord Howie, because his is the kind of philosophy in relation to industrial relations that I very much share and, if I may borrow the clothing of the noble Lord, Lord McCarthy—
Lord McCarthy: It will not fit the noble Earl.
The Earl of Gowie:—and use the schedule stand part as an excuse for some self-promotional literary material, I also wrote an essay on industrial relations in which I argued rather as the noble Lord, Lord Howie, does. However, I think that in this case the noble Lord, Lord Howie, is wrong. We are not dealing with ideology in this clause. Obviously there are ideologies and they differ. But here is an attempt to redress a wrong and compensate the individuals who suffered that wrong. Far from thinking that unacceptable to the vast majority of ordinary hard-working people, it would be quite unacceptable if we did not seek to do this.
It is in the nature of modern societies and modern economies that institutions get big. We understand the forces which make unions, banks, commercial organisations, insurance companies, even government itself grow so big. And as institutions grow in scale, it is necessary for individuals to be protected as they get caught in the grinding institutional machinery. This part of the Bill is clearly a piece of liberal legislation, designed to protect the freedom of individuals and compensate them where they find themselves caught up in the machinations of the big battalions.
It is for that reason that I wholly reject the comments of the noble Lord, Lord Hatch, about this being a piece of class legislation. It seems an astonishing claim, when you think of the Walsall dinner ladies, Joanna Harris or the British Rail workers who were dismissed, to consider this as class-based legislation. I regret his charge utterly.
To return to the much more reasoned exposition of the noble Lord, Lord McCarthy, as the outline of the law up to 1980 indicates, the period of time during which the TULRA, the 1974 and 1976 Acts, were in force, and particularly the period between the introduction of the 1976 Act and the coming into force of our own 1980 Act, was the only period since unfair dismissal law was first introduced when employees have been able to be dismissed without remedy for non-membership of a union in a closed shop, despite their having conscientious objections to union membership or despite their being existing non-union employees at the time when the closed shop was introduced.
As the noble Lord, Lord McCarthy, himself appeared to acknowledge, the period of the TULRA stands out as even more startling against the back-ground of the fact that before 1971 the law had nothing to say about the fairness of closed shop or any other dismissals, and thus it can be inferred that there was no public policy on the issue before 1971. But the 1974 and 1976 legislation created a sutiation in which, after the 1976 amendments, closed shop dismissals were specifically stated to be fair, save only in the case of religious objections to union membership.
This answers a point made by the noble Lord, Lord Hatch. It was therefore the only period in modern times when public policy positively facilitated the dismissal from closed shops, without any remedy, of conscientious objectors to union membership and existing non-union employees. That is the main motivation for our attempts to repeal the law.
Lord McCarthy: The noble Earl really cannot have that because in 1906 the definition of a trade dispute

721
clearly included what we now call a union membership agreement. The Government at that time decided as a matter of public policy that there would by no redress at civil law in cases of closed shops.
The Earl of Gowrie: The noble Lord will be well aware that we went over this ground in detail together in Committee during the passage of the 1980 Act. Without getting into an argument about the nature of the 1906 legislation—and it is not open and shut; it has been subject to considerable dispute over the years—I think we would all acknowledge that the Asquith Government passed that legislation to deal with a set of circumstances which has changed. The situation has changed over the years and Lord McCarthy, or even I myself, might have little enough employment if there had not been development in industrial relations law during all this time.
Our view is that the legislation of 1974 and 1976 was morally indefensible. That view was not restricted to the Conservative Party, as the noble Lord, Lord Hatch, appeared to imply. It was very widely held and can be seen from all tests of opinion in the country and was indeed shared by the Liberals and the new opposition parties. The TULRA legislation had the effect of denying basic individual freedoms and grounds of conscience I mentioned earlier. It had the effect of enabling there to be imposed on existing employees who had freely chosen to work for an employer on a given set of terms and conditions of employment, a wholly new condition of employment, with which they either had to comply of lose their jobs, despite the fact that they might have served that employer loyally for most of their working lives. We acted as quickly as possible after taking office to repeal those unjust laws. We did that in the Employment Act 1980.
The provisions of this clause and schedule reflect the sad fact that that repeal was not in itself enough to remedy the injustices suffered by individuals under the 1974 and 1976 legislation. That is why this Bill contains provision to compensate existing empolyees and employees with conscientious objections to union membership who were dismissed from closed shops without remedy under that previous legislation.
Why then, did we feel that we needed to take a step further? It was certainly our view that the indefensibility of the 1974 and 1976 legislation has been very heavily reinforced by the decision of the European Court of Human Rights in the British Rail case. But I want to emphasise that the court's judgment is not the reason that Clause 1 and Schedule 1 are in the Bill. The Government introduced the provisions because we have always believed that the legislation I mentioned was unjust and because we believe that individuals who suffered should be compensated. But I must say very firmly that the European Court's ruling, which clearly established that the previous Government's legislation was in violation of the Convention on Human Rights, is only a vindication of our own position on the issue. Again, it could not faintly be held to be an internal Conservative party matter.
I was very interested to note that a few moments ago during his speech the noble Lord, Lord McCarthy, appeared wholly to accept the legitimacy of the European Court ruling, and I hope that acceptance will be
722
shared by other members of his party in another place. Certainly when we have tried in another place to draw them as to their view on whether they would try to change the position again, they have always declined to answer.
As the Committee may recall, when I was an employment Minister I played some part in guiding the Employment Act 1980 through your Lordships' House, and that Act restored the minimum safeguards for individual freedoms in a closed shop, which in our view should never have been absent. But the reason that we have felt it necessary to go further now is that our reform in 1980 was seen not to have been fully effective. Within six months of the legislation reaching the statute book two local authorities, Sandwell and Walsall, defied the law and sacked some of their own employees in violation of the rights conferred on them by the 1980 Act. In addition, one of the councils, Sandwell, totally ignored a ballot in which the vast majority of its employees demanded that the closed shop be brought to an end. That is why we have taken this next step and why the Bill extends the protection that the 1980 Act provided against the tyranny of the closed shop.
It extends the protection in two ways. The Bill increases compensation to deterrent levels—and here I come back to the point made by the noble Lord, Lord Howie of Troon. I make no bones about it, nor do I make any apology that there is a strong element of deterrence in the levels of compensation. I hope that those who oppose the closed shop, but are ready to argue that the new levels of compensation are too high, will remember that. We have seen how ruthlessly the closed shop can be abused, and therefore we must not flinch from measures that are needed to bring abuses to an end.
The second main safeguard which the present Bill introduces is to review ballots for existing closed shops, and we shall be coming to that matter. For the moment I can only ask the Committee, how can it be wrong to ask people whether they want to go on working in a closed shop, or how can it be bad for industrial relations to let working people decide these matters for themselves? As I have said, these arguments lie ahead of us, but for the present we believe that some redress must be provided for those individuals who have already suffered specific, and gross injustice at the hands of previous law, including injustice suffered during the period of time in which our own legislation was in operation. That is what Clause 1 and Schedule 1 seek to provide. They are not retrospective legislation. As my noble friend Lord Ferrers said, they provide retrospective justice for individuals. They go some way—not the whole way—towards restoring a wrong that was done, and I commend the schedule to the Committee.
Lord Hatch of Lusby: Before the noble Earl sits down, will he please answer the question which both the noble Lord, Lord Howie of Troon, and I asked him? Why is there a difference in compensation between unfair dismissal on the grounds that we have been considering and other forms of unfair dismissal Is that not an invitation to members of unions to leave their unions?
The Earl of Gowrie: I do not see it that way, and I answered the point when I said that I made no apology for the strong element of deterrence in this legislation.
Lord McCarthy: I do not want to detain the Committee. The noble Earl has started talking about Clauses 3, 4 and 5, but we shall go on to do that after dinner. On the single point about the 1906 Act, I would refer to the provisions of Section 29 of the Trade Union and Labour Relations Act 1974 so far as the closed shop is concerned. Subsection (1)(b), which refers to engagement or non-engagement is fundamentally the same as the provisions relating to the definition of a trade dispute in the Trade Disputes Act 1906. That Act, not the Trade Union and Labour Relations Act 1974, removed the threat of civil conspiracy from the prosecution of a closed shop. That was an act of public policy, and it was decided all those years ago. I do not suggest that this is class legislation. Trade unionists are in all classes. This is anti-trade union legislation, and we oppose it.
7.26 p.m.
On Question, Whether the said schedule (Schedule 1) shall be the first schedule to the Bill?
Their Lordships divided: Contents, 101; Not-Contents, 44.

DIVISION NO.3

CONTENTS

Airedale, L.

Harris of High Cross, L.

Allerton, L.

Home of the Hirsel, L.

Alport, L.

Hornsby-Smith, B.

Amherst, E.

Hunter of Newington, L.

Avon, E.

Hylton-Foster, B.

Aylestone, L.

Kilmany, L.

Belhaven and Stenton, L.

Kilmarnock, L.

Beloff, L.

Kinloss, Ly.

Belstead, L.

Kinnaird, L.

Boardman, L.

Kinnoull, E.

Boyd-Carpenter, L.

Lane-Fox, B.

Broadbridge, L.

Lloyd of Kilgerran, L.

Brougham and Vaux, L.

Lucas of Chilworth, L.

Byers, L.

Lyell, L.

Caldecote, V.

McFadzean, L.

Campbell of Alloway, L.

McGregor of Durris, L.

Chelwood, L.

Mackay of Clashfern, L.

Clifford of Chudleigh, L.

Mackie of Benshie, L.

Colville of Culross, V.

Macleod of Borve, B.

Cork and Orrery, E.

Mais, L.

Cottesloe, L.

Mancroft, L.

Davidson, V.

Mansfield, E.

De L'Isle, V.

Merrivale, L.

Denham, L. [Teller.]

Mersey, V.

Ellenborough, L.

Mottistone, L.

Elliot of Harwood, B.

Moyne, L.

Elton, L.

Murton of Lindisfarne, L.

Fairfax of Cameron, L.

Onslow, E.

Faithfull, B.

Orr-Ewing, L.

Ferrers, E.

Pender, L.

Forester, L.

Rankeillour, L.

Fortescue, E.

Renton, L.

Geddes, L.

Rochester, L.

Gisborough, L.

St. Aldwyn, E.

Glasgow, E.

St. Davids, V.

Glenarthur, L.

Saltoun, Ly.

Gormanston, V.

Sandys, L. [Teller.]

Gowrie, E.

Seear, B.

Greenway, L.

Sharpies, B.

Gridley, L.

Skelmersdale, L.

Grimston of Westbury, L.

Spens, L.

Halsbury, E.

Stamp, L.

Hankey, L.

Stodart of Leaston, L.

724

Stradbroke, E.

Vivian, L.

Swinfen, L.

Wigoder, L.

Swinton, E.

Wilson of Langside, L.

Tranmire, L.

Windlesham, L.

Trenchard, V.

Winstanley, L.

Trumpington, B.

Wise, L.

Vaizey, L.

Young, B.

Vaux of Harrowden, L.

NOT-CONTENTS

Allen of Fallowfield, L.

Lovell-Davies, L.

Ardwick, L.

McCarthy, L.

Bacon, B.

Melchett, L.

Bernstein, L.

Milner of Leeds, L.

Beswick, L.

Mishcon, L.

Blyton, L.

Molloy, L.

Boston of Faversham, L.

Oram, L.

Brockway, L.

Peart, L.

Cledwyn of Penrhos, L.

Phillips, B.

Collison, L.

Pitt of Hampstead, L.

Davies of Leek, L.

Plant, L.

Elwyn-Jones, L.

Ponsonby of Shulbrede, L.[Teller.]

Gaitskell, B.

George-Brown, L.

Rhodes, L.

Glenamara, L.

Stewart of Alvechurch, B.

Hatch of Lusby, L.

Stewart of Fulham, L.

Howie of Troon, L.

Stone, L.

Irving of Dartford, L.

Taylor of Mansfield, L.

Jacques, L.

Underhill, L.

Jenkins of Putney, L.

Wedderburn of Charlton, L.

Kirkhill, L.

Wells-Pestell, L.

Llewelyn-Davies of Hastoe, B. [Teller.]

White, B.

Wynne-Jones, L.

Resolved in the affirmative, and schedule agreed to accordingly.
7.34 p.m.
Lord Skelmersdale: This seems an appropriate moment for your Lordships to move on to other business, but before moving that the House be resumed I should tell your Lordships that it has been agreed through the usual channels that we shall not be continuing with our current business, the Employment Bill, until 8.20. I beg to move that the House do now resume.
Moved accordingly and, on Question, Motion agreed to.
House resumed.

Cinematograph (Amendment) Bill
7.35 p.m.
Read a third time, with the amendments.
Clause 2 [Exclusion of exhibitions promoted for private gain from certain exemptions under the 1909 and 1952 Acts]:
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 1:
Page 2, line 1, at beginning insert ("Subject to subsection (1A) below").
The noble Viscount said: My Lords, Amendment No. 1 is quite apparently a paving amendment, and I think it would be to the convenience of the House if I were in fact to speak to Amendment No. 3, and with it to fit in the effect of Amendment No. 4 as well, so that we may see the whole matter in what is, I hope, a proper perspective. I would by way of introduction

725
say that I hope that those who participated in the debate last Thursday—and I see that all the protagonists are here again tonight—will appreciate that what they said then has indeed led to a very substantial amount of re-thinking of the points that they made. Whether or not it be in order or fashionable, I propose to say that there are, I know, two persons who have been advising Members of this House of all parties—I think literally all parties—who have worked virtually through-out the weekend in order to try to achieve an acceptable compromise upon this matter. I do not think it would he right if we did not acknowledge the hard work that they have done and the enormous number of telephone calls and other communications they have made and consultations that they have carried out.
In a nutshell, the trouble has been that we tried under Clause 2 to stop the bogus club-cinema which was showing pornographic and other material. It was operating under a loophole in the cinematograph licensing legislation. The first problem that arose was that the way in which the Bill was drafted in order to do that led to some doubts whether, in the process, it was not going to lead to the requirement for local authorities to license things like the ordinary retail outlet in the high street which sells and hires video tapes—and I remind your Lordships that I have to declare an interest in this in being involved in a company which has a number of those shops—and, indeed, a number of other perfectly harmless forms of exhibition of either video or film, which nobody wished to have subjected to the licensing system at all. That was one end of the spectrum.
Then there were others who said, and I think justifiably said—I never denied that this was a problem—that there was, by contrast, the possibility that if a number of persons, for instance in a perfectly ordinary public-house, not one which made a speciality of this, chose to exploit, as has been done before, the interstices of this legislation—a bogus club or a bogus pub or a bogus restaurant—we would have a situation where we were in effect back to unlicensed exhibitions of film and tape but under a different form from that which had been previously so much attacked.
What, therefore, we now have is, I am afraid, a very complicated Clause 2, but the effect of the two substantive amendments, which are Nos. 3 and 4, is this. If I may take the House very briefly through the way in which it will go, we shall have a proposition which says that no longer will an exhibition promoted for private gain be excluded from licensing—and that means both safety and censorship licensing. That is the first proposition. Then, if one looks at Amendment No. 3 one finds that that particular proposition does not apply to the harmless outlets which, in this amendment, have been identified: the high street shop and attempts to advertise goods or services, which are probably also the high street shop, or to provide information, education or instruction, which is a matter, particularly in the world of training, which I know is very close to the heart of my honourable friend the Member for Fareham, whose Bill this was in another place and to whom it will return, I hope, very soon. Therefore, we have to some extent adopted a list system but on a generalised basis in order to make it clear that the things everybody agreed did not need licensing will not be considered to be a matter of private gain at all.
Then we come to what is now subsection (2) in the clause as printed where we have a definition of what is to be private gain for the purposes of this licensing; and we are to add to it, in Amendment No. 4, the new concept of an exhibition which is advertised. The distinction here, I think, very simply is that if the public (to take the case we were discussing last week) makes a point of saying that on Tuesdays and Thursdays one is going to have full-length feature films and advertises this either in general or in some rather more limited way—and the same would apply to any other sort of club—then one will fall within the provisions of promoting an exhibition for private gain and therefore will have to have the necessary licensing provisions applied.
The breakthrough has been really in the picking up of the point about advertising. It means therefore—and this is the point which the noble Lord, Lord Jenkins of Putney, and I were discussing last week—that if the television screen behind the bar is purely incidental and does not form part of any promotion for the clients of that public house but is simply there to show what happened in the World Cup forum, even if that is shown a few hours later, because otherwise it would be exempted anyway, that would not be caught. Therefore we have in subsection (2) a number of things which are considered to be exhibitions promoted for private gain.
In subsection (3), as now printed, there will be the rather more borderline cases where it will be for the prosecution to show that those particular activities were taking place but that will not be necessarily conclusive because it will be possible for the defence to show that, despite the apparent facts, these did not lead to the promotion of an exhibition for private gain. There will be, therefore, a third category where the defence has a list of criteria which it is able to deny and whereby the prosecution will fail to succeed.
As your Lordships will see, it has turned into a fairly difficult series of subsections and I have been concerned overall, considering that this is largely going to come before lay magistrates in magistrates' courts, to see whether there is a comprehensible balance of factors. But I think that, if it is looked at in the way that I attempted to describe it, it is something which it is not impossible to pick one's way through; and, in the process, I believe that we have picked up the points that noble Lords have made from various parts of the House. I think we have, as I would remind the House, safeguards for any dubious areas that may still be a matter of doubt in the other legislation on which I have always relied as being a standby when the cine-matograph licensing legislation on its own will not do; and, therefore, perhaps we have now reached a point where those who were good enough not to divide the House last Thursday against the amendments that I put down will see their faith fulfilled and something that is now acceptable to put forward to your Lordships. At this stage, I beg to move Amendment No. 1 which is a paving amendment to Amendment No. 3.
7.44 p.m.
Lord Jenkins of Putney: My Lords, I should like to congratulate the noble Viscount on bringing his legislation to this stage. I have never been very keen on restrictive legislation and I am no great

727
enthusiast for the cinematographic legislation of this country. Even with the addition of this Bill as amended, it seems to me still to be something of a dog's dinner, as I think many people who look at it will agree. I was among those who joined in the abolition of the pre-censorship which used to exist on the theatre under the aegis of the Lord Chamberlain, who enthusiastically abolished himself a few years ago and, therefore, I have always been something of a minimalist in this area.
I believe that whatever legislation exists should be the same for all people who operate in the same area. This is what this Bill will do. This is what this amendment finally does because we have had two sorts of commercial operator—the commercial operator who freely says he is a commercial operator in the business for legitimate private gain, and the commercial operator who has masqueraded as a club but has been even more commercial than the most commercial of operators. Therefore, we have done something here which rectifies that injustice between one type of operator and another.
Also I think we are doing something which is even more necessary, and that is we shall equalise the safety precautions in the same areas so that the same considerations will begin to apply over a period to the commercial club as to the ordinary commercial operator. With great ingenuity—and this he was kind enough to recognise with some assistance—the noble Viscount has dealt with and answered the objections raised at an earlier stage in the Bill. He has provided that those things which ought to be caught by the Bill will now be caught whereas those which ought not to be caught will, I think, as far as human ingenuity can make it so, not be caught. This is what the amendment which the noble Viscount has moved will do, and for that reason, for myself, I welcome it and commend it to the House.
Lord Birkett: My Lords, at the Report stage last Thursday, as I understood it, there never was disagreement about the intention of the Bill or what it was to do. The argument was about loopholes. I believe that these amendments very successfully have brought all parties together and I rise only to echo the noble Viscount's tribute to those officers who worked so untiringly to get it together; to say that I support all his amendments because I believe the cinema industry in particular and the public in general will have cause to be grateful for them; and also to congratulate him and to say that we are immensely obliged to him.
Lord Mishcon: My Lords, there appears a seemly unanimity in the House at this moment. I have not risen to break that spirit but to add my voice on behalf of my noble friends and myself in saying that this is a very sensible amendment. I should like to congratulate the noble Viscount and, if I may say so, add my thanks to the Minister whose officials also have helped in the intervening period to see that acceptable wording is now in the Bill.
It was an example of tolerance from the point of view of the noble Viscount, of understanding from the point of view of those who moved an amendment last time, and of a spirit of reconciliation which almost
728
took on the form of ACAS so far as the Home Office was concerned. A very desirable result has been achieved in regard to the amendments which the noble Viscount explained so eloquently to the House.
Lord Elton: My Lords, I do not want to protract this series of encomiums heaped on the head of my noble friend, but I should like to add my congratulations on what is a happy outcome and one which has shown this House and the functions of Government probably at their best in bringing legislation in very quick order into line with the interests of those most closely affected by it. It is not necessary for me to read out my brief explaining what the noble Viscount has done by these amendments because he has done it so exceedingly well himself. In adding my thanks to those who have contributed to this, both inside and outside the House, I should like particularly to say to the noble Lord, Lord Jenkins of Putney, that tonight, as a result of every-body's efforts, the dog has got a very much better dinner than usual.
Viscount Colville of Culross: My Lords, this is indeed a very happy outcome. I forgot to say one thing to the noble Lord, Lord Jenkins, and that was that we did look very carefully at the approach which was embodied in his amendment to see whether that might be the better way in which to do this. I am glad to find him not insisting on that any longer but happy with the way we have done it. I am grateful to all those who have spoken, and may I just say in this particular connection that, although historically I undoubtedly was a "Vice-count", I think that perhaps just at the moment I had better stick to my modern pronunciation.
On Question, amendment agreed to.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 2:
Page 2, line 3, leave out from ("which") to ("and") in line 5 and insert ("section 7(4) of the 1909 Act (exhibitions in private dwelling-houses) applies").
The noble Viscount said: My Lords, this is a drafting amendment. I beg to move.
On Question, amendment agreed to.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 3:
Page 2, line 7, at end insert—
("(IA) Subsection (1) above does not apply to an exhibition the sole or main purpose of which is to demonstrate any product, to advertise any goods or services or to provide information, education or instruction.").
The noble Viscount said: My Lords, I have spoken to this amendment and it has already been approved. I beg to move.
On Question, amendment agreed to.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 4:
Page 2, line 15, at end insert ("or
(c) where the exhibition is advertised (whether to the public or otherwise), any sums not falling within paragraph (b) above which are paid for facilities or services provided for persons admitted to the exhibition,").
The noble Viscount said: My Lords, similarly, I explained this earlier and it met with the approval of those who have spoken. I beg to move.
On Question, amendment agreed to.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 5:
Page 2, line 20, leave out ("payment was required") and insert ("any sums were paid").
The noble Viscount said: This amendment is consequential, my Lords, and I beg to move.
On Question, amendment agreed to.
Viscount Colville of Culross Viscount Colville of Culross moved Amendment No. 6:
Page 2, leave out lines 23 to 25 and insert—
("(b) that any sums were paid for facilities or services provided for persons admitted to the exhibition and that the exhibition was advertised (whether to the public or otherwise); or").
The noble Viscount said: My Lords, this amendment is also consequential. I beg to move.
On Question, amendment agreed to.
Viscount Colville of Culross: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Viscount Colville of Culross.)
Lord Mishcon: My Lords, I want only to add one more word, and that is that I hope this Bill, in view of the Motion now before the House, will go to another place, will be considered very speedily and will very soon pass into law. The capital city possibly needs this legislation more than most cities, but there are many cities and rural areas in the United Kingdom which will undoubtedly benefit from the passing of this legislation, and I congratulate the noble Viscount on steering it through the House.
On Question, Bill passed, and returned to the Commons.
Lord Skelmersdale: My Lords, I beg to move that the House do now adjourn during pleasure until 8.20 P.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.55 until 8.20 p.m.]

Employment Bill
House again in Committee.
Clause 2 [Dismissal for non-membership of union]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 14:
Page 2, line 13, leave out ("or of a particular trade union, or of one of a number of particular trade unions,").
The noble Lord said: So far in Committee, your Lordships have been discussing the past. Clause 1 and Schedule 1 enshrine the rather peculiar provisions
the Government wish to make about events that
730
lie in the past; events which we have suggested would look very different if they could be seen in the light of the evidence which exists, which, unhappily, is not yet available from the Government commissioned research. But now, in Clause 2, your Lordships are asked to look to the future with the Government—to see what they want to do with trade unionism in the future.
In many ways, Clause 2 is one of the most important provisions in the Bill. If I may quote the Secretary of State, Mr. Tebbit, on Second Reading in another place on 8th February this year, at col. 742 of the Official Report, he summed up—in a way that, I think, will not be in dispute between these Benches and the Government—the effects of the clause and, indeed, of this part and some other Parts of the Bill. He spoke of Clause 2 providing wide-ranging rights against unfair dismissal for the non-union employee in a closed shop and summed it up as follows:
"It"—
that is, the clause—
" considerably extends the right not to be unfairly dismissed for non-union membership.
I have no hesitation in saying that when the Bill reaches the statute book it will provide the most comprehensive and the most effective statutory protection for non-union employees that we have ever had in this country."
In a sense, that sums up the case that we have from these Benches against this Part of the Bill. It is not a question of injustice done to individuals and I, at least—and I am sure that my noble friends will be with me in this—say that, if in justice is shown in an individual case, then it should be remedied. Again, I declare an interest as chairman of the Independent Review Committee of the TUC, in which we have tried to do that in such cases as have come to us—and there have been many.
But if you base your policy upon the promotion of non-unionism—that is what this clause begins to do—then you put at risk all the advantages which employers, Government and workers in the past have found to come from the system of trade unionism, and of collective bargaining as a whole. It is that risk which this Bill now clearly enshrines—more clearly than the Act of 1980.
Coming to the amendment, it relates to Clause 2 which re-enacts Section 58 of the 1978 Act. The 1978 Act provided that it should be automatically unfair to dismiss an employee on the ground that he was a member of an independent union, or that he had taken part in its activities, or that he refused to become a member of a union that was not independent. The first part—dismissal for trade unionism—is retained in, more or less, the same way and it is necessary to say a word about that. It is the second part which is changed, where the last proposition is replaced by a proposal that it should be automatically wholly unfair, whether or not there is a closed shop, or in any situation whatever, to dismiss a worker on the ground, and for the principal reason, that he is not a member of a union, or of a particular union, or of one of a number of unions, as the new Section 58(1)(c) would provide.
Taking these points in order, every modern system of labour law in comparable societies in, for example, Western Europe, provides for protection against

731
dismissal by those who organise trade union activities. It is true in France, it is true in Italy, it is true in Germany and it is true in Sweden. If I may quote, as a very simple rationale of this position, the work of Professor Schmidt on Law and Industrial Relations in Sweden, he wrote at page 74:
"As the representative of the workforce, these representatives have been considered in need of stronger protection than the rest of the employees."
That is common throughout Western Europe—it is not special to us, and we were rather late in getting there—because if you allow a union representative to be picked on, whether the employer is sympathetic or not (harking back to a previous debate) then no one will get on with the business of collective bargaining as a representative of the workforce.
We enacted a somewhat wider provision in 1975, that anyone taking part in the activities of an independent trade union should be so protected, and the reason we did that, and did not enact what the Government now wish to enact, may be gathered from the Donovan Report in 1968 at paragraph 599—and I quote the Donovan Report as something which all administrations so far have accepted—which stated:
"It might be argued that the closed shop should be prohibited. As part of the argument for prohibition, it might be said that, since we suggest that any condition in a contract of employment that an employee shall not join a union should be void, it would be right to treat in the same way a condition that a worker shall join a union. However, the two are not truly comparable. The former condition is designed to frustrate the development of collective bargaining which it is public policy to promote, whereas no such objection applies to the latter."
That is a fundamental proposition from which the Government are now departing; that is to say, the Government are now being guided not by the principle of the Donovan Commission's report, not by the principle that applies in most other systems of Western European law—although I shall have a word to say on that in a moment—but by the new principle, which was propounded by the Under-Secretary of State in the other place on 23rd March 1982, at col. 653 of the Official Report, when he spoke about the refusal of the Government
"to derogate from the absolute right not to be a union member even when there is a closed shop"
He used the phrase "absolute right not to be a union member" on many occasions.
The Government are wedded to the principle of an absolute right not to be a member of a trade union, which, of course, goes far beyond the Strasbourg judgment and far beyond any of the other sources upon which they rely in this respect. Indeed it goes very much further than the Secretary of State himself adhered to in 1975 when, in the debates on what became the 1976 Act, he said on 9th December 1975 at col. 330 of the Official Report:
"As for free riders, I do not like them in any place. I would welcome any arrangement under which those who did not wish to belong to a union still paid subscriptions to the union—not even to a charity—for the work the union carried out on behalf of its members and others."
This change of tack by the Government is new. The new Section 58(1)(c) in Clause 2 is the one to which this amendment is directed. It is an amendment moved in the knowledge that we are unlikely at this
732
late stage to turn the Government's head from the head-long path that they pursue in pursuit of the absolute right of a worker not to be a member of a union. It is an amendment which asks them to think again in one particular respect.
Your Lordships will see that if the principal reason for dismissal is that an employee is not a member of a union, it is automatically unfair. But it is also automatically unfair if he refuses to be a member of a particular union, or refuses, or proposes to refuse, to become or remain such a member. Those words in lines 14 to 17 on page 2 of the Bill immediately interact with the question of multi-unionism in Britain.
The Government have taken due account of the fact that multi-unionism exists in Britain. In Clause 15 of the Bill they finally polish off, as trade disputes that allow for industrial action, disputes between workers and workers. One of the reasons given is that they do not think that inter-union disputes should be allowable as trade disputes. We shall come to that clause. If that point be right, is it not the case that this clause necessarily encourages breakaway unions and increases multi-unionism—at any rate, in prospect?
To take the case of an inter-union dispute, the fact that somebody is in no circumstances whatever allowed to be dismissed because he refuses to join a particular union, or insists on remaining in a particular union, in all circumstances whatever, gives management no part, or very little part, to play in the enforcement of arrangements to avoid the disadvantages of multi-unionism. I say immediately that the amendment which I move relates also to Clause 9 where a similar point arises. The Government are quite logical in denying the employer the right to take not only dismissal action but any action short of dismissal which has the same effect. That is the effect of Section 23 of their 1980 statute and of Clause 9 of the Bill.
Let us take a concrete case which came recently before the Employment Appeal Tribunal. In the case of Rath v. Cruden Construction Limited in 1982, reported in the Industrial Relations Law Reports, page 9, there was a worker who was a member of the United Construction and Allied Trades trade union. He alleged that the reason for his dismissal was that he had insisted on remaining within UCAT. Pressure had been put on him to move to the Transport and General Workers' Union. The law report is not clear exactly why; we shall come to that in a moment. His complaint was that he had been dismissed contrary to paragraph (a) of Section 58(1), as printed in the Bill. On this occasion the Government have had the kindness to reprint the whole section on pages 2 and 3 of the Bill, for which I am sure all noble Lords are very grateful.
Section 58(1)(a) deals with dismissal on grounds of trade unionism. The Employment Appeal Tribunal held that he was not dismissed in breach of Section 58(1) (a); the reason why he had been dismissed was that he would not move—not that he stayed where he was. This is a lawyer's point. The further we go with the Bill we shall see that if anybody thinks that this Bill, like the previous one, will not give a great deal of employment to lawyers, they are much mistaken—if, of course, we get the recession out of the way and a

733
bit of an upturn so that people will have some money to pay legal costs. However, that was the decision in that case. It is an arguable case. It would go the other way if the Bill is passed in this form.
Let us test that in relation to the Trades Union Congress disputes principles and procedures. Suppose, in the Rath case—I admit that the law report does not make it clear that this was the case but it would be rather surprising if it was not— that there was an inter-union agreement, perhaps also an agreement with the employer, and perhaps an agreement to observe the Bridlington principles, that workers in a particular area, job, craft or grade should belong to the one union rather than the other. If the Bill is passed, Mr. Rath will have a remedy. Is that what the Government want? Do the Government want to give a remedy to a worker, no matter the other considerations, even if the employer says, "Thank heaven for the TUC disputes principles and procedures, because he says, No, I won't move"? So if he is dismissed, or if—I take the point now because it is logical to do so— he is not dismissed but if in the short term action short of dismissal is taken against him— he is suspended or he is put on another site— he may be dismissed if he complains about that. Is that the kind of structure which the Government are putting to the country at this point?
Whatever other defects the trade unions of Britain have, I say that the unions affiliated to the TUC are the only bodies which have done anything effective during the last 30 years about multi-unionism in this country. If there is any evidence of any other body, other than a few employers' associations and employers, who have co-operated in that process, let it be put on the table. This is the kind of procedure which would ruin the TUC disputes principles and procedures.
Let me take Principle 5—one which sometimes causes a bit of aggravation between one affiliated union and another—of the TUC disputes principles and procedures, though it is sometimes called the Bridlington principles from the Bridlington Congress of 1939:
"No union shall commence organising activities at any establishment or undertaking in respect of any grade or grades of workers in which another union has the majority of workers employed and negotiate wages and conditions, unless by arrangement with that union".
That seems to be a very sensible thing to try to operate. It is run much better by the voluntary procedures of the TUC than it would be by a statute. One would have thought that the Government might at least, however much they approve of non-unionism, have given some support to that situation in an inter-union context. But so blinded are they by their pursuit of the idea of the individual necessarily having a choice, that they put before your Lordships a statute which can mean nothing other than an increase in trade unionism — at any rate, so far as management is concerned, because management will go to the unions concerned and say, "We are very sorry; we should like to see that put into effect but we can't help you".
The events of the last few weeks have made that doubly important because management now has a much more serious role than it had two weeks ago. On 19th June 1982 the majority of the Court of Appeal held that the whole Bridlington arrangement was void and contrary to public policy. That case is going to
734
the Judicial Committee of your Lordships' House. I do not know what will come about, but one must discuss it now on the basis of the law as it is; and the law as it is today, by two to one in the Court of Appeal, is that the Bridlington procedures are contrary to public policy. The TUC, no doubt within the law, will try to get the same result by other means— in other words, will try to get common sense round the bargaining table.
Is this a clause which supports the judgment of the Master of the Rolls: that it was said that the trade union rule was necessary to keep order in industrial relations and that if it were not for the Bridlington principles there would be chaos? Then the Master of the Rolls went on:
" Even though it should result in industrial chaos, nevertheless the freedom of each man should prevail over it".
I cannot believe that the Government wish to enact a clause that enshrines that very principle. There are limits on individual choice and one would have thought that industrial chaos was something the Government should not pursue, even in the pursuit of individual choice. Yet this section as it stands is very much in that same genre.
It is with great difficulty that one tries to imagine the Government really meaning what they say in the words which this amendment moves to leave out of the clause. We want to move out only the part, not about non-unionism as such, because we understand that they are wedded to that— mistakenly we think, but we will debate it later— which must face a management that has 17 unions to negotiate with today (hopefully, in a joint negotiating committee) and 23 unions tomorrow. One would have thought that that was absurd.
A final point about the nature of the clause, and therefore the nature of the amendment: the clause says that a dismissal on the grounds of refusal to move from one union to another or anything connected with that is automatically unfair. Thereby, it pre-empts two points, not one. In an unfair dismissal case, the employer is faced with two points to win. The first point is that he has a substantial reason for the dismissal, such as conduct or lack of capability. The second point is that he is being reasonable in adopting dismissal as the appropriate sanction. It' the Government had put forward a clause which said that refusal to move from one union to another or that, as a principal reason, a worker not being a member of one of a number of particular trade unions was OK for the first point, but that it was still left to the employer to show he was being reasonable, I would not have agreed with it but I think I could have understood it. In other words, that would have got the employer half-way. Then he would have to show that it was reasonable and then the tribunal, as tribunals do, might take account of the inter-union position. But the nature of the clause is that the tribunal is shut out from looking at the inter-union relationship. It can take account of the compensation it awards because of the conduct of the employee if he contributes to his own dismissal, and we shall hear a lot of that throughout this clause. But that is not the point; it goes only to quantum of damage.
It is extraordinary if the Government will not accept this small amendment, think again at least

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about the inter-union problems which are involved in the present situation of multi-unions, and take out of Clause 58(1)(c) the part that relates especially to that inter-union difficulty with which trade unions have been struggling, in many ways successfully, for a number of years. Many managers on the shop floor, I am quite sure, will see the provision as putting the clock back in many respects as far as their day-to-day working is concerned, both in regard to dismissal and, perhaps even more important, in regard to action short of dismissal. I beg to move.
8.44 p.m.
Lord Mottistone: I have listened with great interest to the extraordinarily long speech made by the noble Lord, Lord Wedderburn of Charlton. I have found it so difficult because many of the matters to which he made passing reference were real problems that one has experienced and recognised, and I tried terribly hard to relate what he said back to what the amendment and this particular part of the Bill are all about, but I just could not do it.
We listened for 22 minutes and I found myself unconvinced. This shows that I am terribly dumb and frightfully inexperienced, despite the fact that I have spent much of my life dealing with questions of this sort; but that really does not matter in the modern world of industrial law because it is obviously in that area that one ought to have experience. I hate to say this to the noble Lord, Lord Wedderburn of Charlton, because he was trying so hard, but the net result of his efforts was totally unconvincing. I am very sorry about that. If he could have said it all more simply for simple folk, as many of us Lords are, maybe we should have understood; and if the noble Lord had spoken more slowly and carefully, and had not shouted at us, that might have helped too.
Lord Campbell of Alloway: May I to some degree come to the rescue of the noble Lord, Lord Wedderburn of Charlton.
Lord Boyd-Carpenter: He needs it.
Lord Campbell of Alloway: I understand his concern about the absence of recognition machinery for inter-union disputes. It is a serious matter. It is, in submission, a serious defect under our present structure of law, and it is something to which I adverted on 15th June, I think it was, on Second Reading. So it is not something that I have dreamt up as a salvage operation. But this is where we part company. The noble Lord is confusing the absence of recognition procedure with the subject matter of this amendment and this has made the whole presentation very difficult to understand.
On the recognition aspect, never mind what the Court of Appeal said the other day. Bridlington has been as dead as a dodo for decades and everybody knows that. What we need is a proper recognition procedure under the Act of 1971, which, as I am sure the noble Lord, Lord McCarthy, would agree, was one of the parts of the Act that worked reasonably well and to reasonable satisfaction; it was one of the few parts of
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the Act that was generally acceped to have worked well.
Coming to this amendment, all this dissertation on recognistion procedure is a red herring. The spirit that moves the Government here is not open to criticism. It is the spirit of the majority decision in the railways case, if not the letter of that decision according to a reasonable interpretation of Article 11 of the Convention on Human Rights. That is applicable throughout the European Community and which, being supranational law, obliges each member state in due course to conform to the international principles.
Who could care more or less about what happens in Sweden, if I may put it that way? What matters is what happens within the remit of our own national and international law assumed by treaty obligations. Within that, this Government have faithfully sought to follow the right principles.
Lord Houghton of Sowerby: I put individual liberty very high indeed in the free society, but, as I said earlier, the right of the individual may reach a point where he must have regard to the rights of other individuals. In other words, he must come to terms with his environment, especially when he chooses that environment for himself. I find myself in sympathy with the case made out by my noble friend on this amendment. We must bear in mind that throughout the piece the right of the worker with a conscience or a deeply-held personal conviction is upheld. That is in this clause. So we do provide for the strong personal reason for not wanting to belong to a trade union or a particular trade union.
But apart from that and short of that, we have to look at the position of the individual who may exercise his absolute right in any circumstances not to belong to a union. We have to have regard to that in relation to the harmony of the undertaking, the rights of other individuals, the employer who wishes to conduct his business in an acceptable way. All that has to be taken into account. I must say from personal experience how bitter the rivalries between unions can become, and how strongly they feel about poaching, or members being in a union which is seeking a bridgehead in a particular organisation from which to expand their probably disruptive influence over the workforce. These are very important matters indeed. So I would not concede to the individual the absolute right in any circumstances not to belong to a union, and that is the principle which the Minister in another place defined as the purpose of this clause.
We come a little later to the question of ballots on closed shops and so forth. But this amendment relates to a very important principle. I am glad, if I may say so, that we are now on the future and have done with the past. I think that up to a point one should let the past bury their own dead— that is not the absolutely correct quotation but, still, it will do. We are now on the future. We have to lay the foundations soundly.
It has not really been mentioned in this context, but in present circumstances we are in the most inappropriate time to be discussing matters which arouse deep feelings among the trade union movement. It would have been so much better had we had more tranquil conditions in which to discuss these matters

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more objectively and without the emotional undertones that are now running right throughout the trade union movement. The trouble is that even moderate trade unionists feel that the Government are attacking the trade union movement, that they are against it and are seeking to weaken it. I do not associate myself for a single moment with some of the more extreme denunciations of this Bill which have been made by trade union leaders; I think they are exaggerating. But they are an indication of the attitude of trade union members towards the Government's proposals.
So I think we do have to study very carefully indeed what we are doing in this clause. I support this amendment, which I hope will not give my noble friend too much of a shock, because I think his reasoning in the matter and the arguments that he brought to the Committee were comprehensive and I thought very persuasive indeed. So that, for what it is worth. is my own opinion on this particular matter.
Lord Jenkins of Putney: I do not like this Bill and I do not like this clause and I do not like this subsection of the clause. I think what my noble friend has sought to do is to make this subsection (1)(c) of the clause just a shade less objectionable than it would otherwise be. He has sought to create a position in which this Bill will not create dissent, discord between employer and employee— because that, I am afraid, is inevitable under the Bill as it stands and not much can be done about it— and he has sought to remove one of the causes which might create friction between one union and another. That this, apparently, is not understood on the other side of the Committee I find extraordinarily hard to understand. It seems to me that my noble friend in his exposition of what he was seeking to do was clarity itself. Why it was that noble Lords opposite were unable to grasp what he was about, I found difficult to understand. Indeed, when the noble Lord opposite came to his aid, I personally would rather not be assisted in that manner, if I may say so.
Lord Campbell of Alloway: The noble Lord will not be.
Lord Jenkins of Putney: I hope the noble Lord, Lord Wedderburn, felt assisted by the noble Lord. I beg leave to doubt whether he did. I did not feel that he was being assisted, but I am trying to assist him a little hit now, if I may.
I think the object my noble friend seeks is a question of order. If one creates the position in which unions are going to be in effect in competition with each other, in an area in which hitherto one trade union has occupied the area, one creates a position in which conflict can occur. It seems to me that the simple object of this amendment, which I hope the Committee will decide to support, is to remove one area of conflict. That, surely, is something which ought to commend itself to the whole Committee.
The Minister of State for Defence Procurement (Viscount Trenchard): The noble Lord, Lord Wedderburn, started by quoting from the remarks of my right honourable friend the Secretary of State in terms of where this Bill would take legislation in this country,
738
which were words the noble Lord used. He went on to suggest that this represented the Government view, a determination to promote non-unionism. I cannot accept either of those two propositions. My right honourable friend the Secretary of State has made clear on a great many occasions that he is seeking in this country what we believe is a better balance. Certainly from my own experience I know that the balance in other countries in the closed shop respect is very different. Things have moved on since Donovan, which is a good many years ago, and we believe that changes are necessary.
To turn to the particular amendment which the noble Lord moved within the context of his general remarks, Section 58(1)(c) protects the right of an employee not to be a member of a trade union outside a closed shop situation. It protects his right inside a closed shop situation, but only as covered by the provisions of subsection (3). In this respect the Government believe that the nature of Section 58(1) (a), (b) and (c) is entirely neutral. There is an absolute protection for any employee to join an independent trade union, to take part in the activities of an independent trade union, to take part in the activities of an independent trade union, or not to belong to one, including situations outside closed shop.
The noble Lord made a point about the Under-Secretary of State's remarks in Committee when discussing this particular clause. But there is of course the right contained in Clause 3 for a proper closed shop agreement to be negotiated, and we shall no doubt move on to that at a later date. The reason for these words which the amendment seeks to remove is that it is not considered that it would be automatically unfair, for instance, even in a non-closed shop situation, for an employee to be allowed to leave a trade union. This covers only his right not to be a trade unionist in general. It does not cover his right to decide not to belong to a particular union or one of a group of trade unions. We believe that an employee should not lose his job, without remedy, for refusal to belong to any union, including a particular trade union.
The noble Lord made a great point of the multi-union problem in this country. That is a problem about which, from a longish industrial experience, I know something. But to suggest that these words will necessarily push towards a more multi-union situation is, I believe, to go too far. The position in this country, where he admitted there are 17 union situations at present, is of course a lot worse than that in other countries, in spite of the fact that, until the Bill becomes law, the law has not carried this protection. I do not see that this will produce a particular pressure for employees to move from one union to another. It is certainly not the intention that it should do so. The noble Lord mentioned in the case that he quoted that this was a lawyer's point. While I have a note upon it, I do not think that I should detain the Committee by going through it in detail.
There is a constant management interest— this remark is directed to tie noble Lord, Lord Houghton of Sowerby— to avoid a complex multi-union structure. I point out to the noble Lord, Lord Houghton, that there is nothing in the provisions of the Bill and in subsection (3) which would actually prevent in an extreme situation a management and a union negotiating

739
a closed shop agreement in relation to one union alone, provided it was the will of the vast majority of employees. So I believe that when we are accused of being blinded by intentions which we do not possess—our intention is to be fair and even-handed and to have a situation in trade union law more like that in other countries who have outpaced us competitively—I say that it is they who are blinded and that there is plenty of scope for regulated closed shops in this Bill which I trust we shall move on to in a moment, much more scope than there is in a number of other countries including those where the closed shop is totally illegal.
The noble Lord, Lord Houghton, suggested that this was an inappropriate time for change. I believe that we on this side of the Committee would take the view that certain experiences which are continuing, together with the evidence, such as we see it, of the view of public opinion as a whole, make it a very appropriate time to introduce changes to produce a situation which combines individual liberty with the continued absolute right of individuals to join independent trade unions and to bargain through them.
Lord Wedderburn of Charlton: My noble friends and I are very disappointed with the Government's response to this matter. I should like to make two points. First, it really does seem that, despite the understanding of management's interest to avoid multi-unionism, which the noble Viscount has displayed and which we understand, nevertheless in pursuit of their general policy on non-unionism, the Government have acquired a blind spot, because they believe that the protection of non-unionism to the point of promoting industrial chaos, is a policy which is defensible on the ground that it is even-handed. We do not think that that is good enough in a modern society.
Secondly, in answer to the noble Lord, Lord Campbell of Alloway, let me say that of course it is not about recognition; and I say to the noble Viscount that it is not even about closed shops, because Clause 58(1)(c) is not about closed shops and not about recognition: it is about organisation. It is about poaching, as my noble friend Lord Houghton said. It is about the poaching of and the competition for members. If the Government want to put a section on the Statute Book that will assist that, then so be it, but we shall oppose it and on that ground we shall divide on this amendment.
9.5 p.m.
On Question, Whether the said amendment (No. 14) shall be agreed to?
Their Lordships divided: Contents, 35; Not-Contents, 75.

DIVISION NO. 4

CONTENTS

Allen of Fallowfield, L.

David, B. [Teller.]

Ardwick, L.

Davies of Leek, L.

Beswick, L.

Elwyn-Jones, L.

Bishopston, L.

Gaitskell, B.

Brockway, L.

Hatch of Lusby, L.

Brooks of Tremorfa, L.

Houghton of Sowerby, L.

Cledwyn of Penrhos, L.

Howie of Troon, L.

Collison, L.

Jacques, L.

740

Jenkins of Putney, L.

Ponsonby of Shulbrede, L.

Llewelyn-Davies of Hastoe, B. [Teller.]

Shackleton, L.

Stewart of Alvechurch, B.

McCarthy, L.

Stewart of Fulham, L.

Milner of Leeds, L.

Stone, L.

Oram, L.

Underhill, L.

Peart, L.

Wedderburn of Charlton, L.

Phillips, B.

Wells-Pestell, L.

Pitt of Hampstead, L.

White, B.

Plant, L.

Wynne-Jones, L.

NOT-CONTENTS

Airedale, L.

Lloyd of Kilgerran, L.

Avon, E.

Long, V.

Aylestone, L.

Lucas of Chilworth, L.

Belhaven and Stenton, L.

Lyell, L.

Beloff, L.

McFadzean, L.

Belstead, L.

Mackay of Clashfern, L.

Boyd of Merton, V.

Macleod of Borve, B.

Boyd-Carpenter, L.

Mansfield, E.

Brougham and Vaux, L.

Mersey, V.

Caldecote, V.

Mottistone, L.

Campbell of Alloway, L.

Mountevans, L.

Chelwood, L.

Murton of Lindisfarne, L.

Coleraine, L.

Orr-Ewing, L.

Cork and Orrery, E.

Rankeillour, L.

Craigavon, V.

Renton, L.

Crathorne, L.

Rochester, L.

Davidson, V.

St. Aldwyn, E.

Denham, L. [Teller]

St. Davids, V.

Digby, L.

St. John of Bletso, L.

Elliot of Harwood, B.

Saltoun, Ly.

Elton, L.

Sandys, L. [Teller.]

Fairfax of Cameron, L.

Seear, B.

Faithful, B.

Sharples, B.

Ferrers, E.

Skelmersdale, L.

Fortescue, E.

Spens, L.

Gisborough, L.

Stamp, L.

Glasgow, E.

Stodart of Leaston, L.

Glenarthur, L.

Swinton, E.

Gowrie, E.

Teynham, L.

Greenway, L.

Trenchard, V.

Gridley, L.

Trumpington, B.

Grimston of Westbury, L.

Vaizey, L.

Halsbury, E.

Wilson of Langside, L.

Home of the Hirsel, L.

Windlesham, L.

Hornsby-Smith, B.

Winterbottom, L.

Kilmany, L.

Wise, L.

Kilmarnock, L.

Young, B.

Kinnaird, L.

Resolved in the negative, and amendment disagreed to accordingly.
9.15 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 15:
Page 2, line 17, at end insert—
("Provided that at the time of the dismissal he was not and did not propose to become a member of a trade union which was not independent").
The noble Lord said: I rise in fear and trembling to move Amendment No. 15 in view of what the noble Lord, Lord Mottistone, said. He said that I took too long in moving the last amendment at 22 minutes, but I spoke too fast for him to understand what I was saying. I will avoid taking 44 and try to do this in 2.2
This relates to the question of unions which are not independent. In the legislation which this Bill amends there were various inhibitions upon employers edging workers into unions that are not independent. One of them was the refusal to an employer of any right by way of dismissal, or action short of dismissal, to induce an employee to have dealings with a non-independent trade union. The concept of independence being

741
defined in Section 30 of the Trade Union and Labour Relations Act 1974 which effectively, without quoting it, comes to this: a union is not independent if it is under the domination or control of an employer, or is liable to interference by way of financial or material support or any other means whatsoever tending towards control by the employer.
What has been done in this measure is to omit the non-independent union in any specific words. This amendment would deny the rights afforded by the new Section 58(1)(c), which the Government have now pressed upon your Lordships, to someone who was intending to take part in an organisation of any kind which was not independent, be it with that employer or indeed any other.
It has been said that non-independent unions are a thing of the past. The noble Lord, Lord Campbell, said that the Bridlington principles were as dead as the dodo in the last debate. That is not only untrue but it is highly undesirable. It is also untrue to suggest that house unions, as they are known, or yellow dog unions, are a thing of the past in Britain. In the last annual report of the certification officer there were some 49 unions which had been refused certificates of independence under the 1974 and 1975 legislation. That is to say, they asked to be registered as not being under the control of an employer and they had been refused on the certification officer's investigation.
They include a remarkable list of white collar staff associations. The Commercial Bank of Australia; the Derbyshire Building Society; the Federation of Cadbury Schweppes Representatives' Association; the Playboy Staff Association— you would not expect that to be independent; the Rank Hotels Staff Association; and the staff associations of various other companies. They are nearly all staff associations. Of course, many have never even applied. The Laker Airways Cabin Attendants' Association never even applied for independent certification. Nor did Johnson Matthey's Staff Association. Not did the Dexion Staff Association. If there is to be employment— and with this Government that is a condition that one cannot promise will he fulfilled—then the white collar sector of the workforce will increase. Whatever employment there is, the white collar sector is likely to increase.
It is the continued practice of employers over that wide range of industries, of which the list could be extended considerably if one likes to look at the last certification officers' annual report, where non-independent unionism is still of some importance. Indeed, it is more important today than it was at the time when the 1975 legislation was enacted for the simple reason that in Britain now there is the first platoon of the army of employment benefit consultants, as they are called in the Southern States, who are coming across from the United States of America, where the new technologies have been organised to a very great extent without independent trade union organisation. I think I hear the noble Viscount say he does not care what happens in other countries, that he cares only what happens here. I not only care what happens in other countries, but I suggest we can at least look at other countries and see whether we can learn any lessons.
Viscount Trenchard: I was about to interrupt the noble Lord on that, but I will reply shortly.
Lord Wedderburn of Charlton: What has happened in the Southern States of America is something on which we should consult seriously in terms of how we want the workforce for the new technologies to be organised. If you do not care whether the unions are independent, then of course you do not care about the amendment. It is because we still care about the whole question of house unions and unions being truly autonomous and independent, and because we believe that industrial relations and society will best be organised on the basis of the autonomous and independent organisation of workpeople, that we have moved the amendment, at any rate to express the spirit which the Government have taken out of the previous legislation by what is now in the new Section 58 and Clause 2. I beg to move.
Lord Mottistone: I rise hastily to say that I understood that very well, and accordingly I thank the noble Lord.
Viscount Trenchard: I thank the noble Lord, Lord Wedderburn, for the briefness of his exposition of the amendment. He is too suspicious in looking for Government motives. The last time he suggested we were going to increase to a major degree multi-unionism, which I do not think followed from the words we wished to include. This time he draws the conclusion that we are trying to promote the interests of non-independent trade unions. I do not know how he squares that with the fact that Section 58(1)(c) in fact protects the individual from a threat of dismissal if he refuses to join a house union. It gives him protection against the staff associations which the noble Lord appears to dislike so much. Section 58(1)(a) and (b) give him an absolute right, whether or not a member of a staff association, to join an independent union. Again, I do not feel that the motive he suggested to us, or the effect he feels might stem from the Bill as drafted, is correct. The Government believe that membership of staff associations is a totally separate question. Individuals are protected so there can be no false pressure on them to join. But otherwise it is entirely up to the individual and it in no way cuts across his right to be a member of an independent trade union.
The only other comment I would make is that there was some muddle in the noble Lord's mind as to whether I cared about other countries. I do care about our competitors, and having at times spent a long time being responsible for the management of factories in six or seven other countries. I care very much, and I support my right honourable friend the Secretary of State in this further contribution to making our industry more competitive with those countries.
Lord Wedderburn of Charlton: That was rather disappointing and perhaps I might briefly point out why. The previous legislation dealt with non-independent unions in a comprehensive way, and this is a replacement for that. The scenario which the noble Viscount put to me would fall within Section 58(1)(c) as the Government wish it to be. I see the noble

743
Viscount frowning; I will try to speak a little more slowly. What he says is right. The example that he gave is one where the worker is protected. But what the Government do not seem to understand is that the new wording of Section 58(I)(c) protects the man who wants to organise the non-independent trade union in a different respect, because of its very broad—the noble Viscount shakes his head. Perhaps he will take the scenario involving someone who refuses to join an independent trade union because he is out to organise a non-independent union. If he is dismissed — the noble Viscount frowns, but those who go along with the employer in organising the house union frequently get into a posture where a great number of conflicts arise.
Many complex situations can arise in which someone could be protected where his ultimate objective is to organise a non-independent union in one workplace or another one. The amendment would entirely dispose of that situation, whereas the Government's words in Section 58(I)(e) leave at risk a number of possible alternatives where that is not covered as it was in the preceding legislation. However, my noble friends and I do not propose to divide on the amendment, nor will we withdraw it, and no doubt it will be negatived.
On Question, amendment negatived.
9.26 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 16:
Page 2, line 30, at end insert—
("() When subsection (1) is being invoked in proceedings before an industrial tribunal, it shall be a defence for the employer to show—

(a) that it is to the advantage of the employee to be unfairly dismissed; and

(b) that the employer's business will suffer immediate and appreciable financial loss form such dismissal.").

The noble Lord said: On this amendment I am advised by the General Council of British Shipping. As I am sure many of your Lordships know, shipping has a problem regarding in general its workforce and in particular the operation and organisation of the members of the National Union of Seamen. I am advised that on the whole the support for the union is extremely strong throughout the Merchant Navy, but on the other hand the balloting that the union has already carried out and the balloting that the Bill will encourage it to do may well be beyond its practical resources. For example, only about 30 per cent. of the National Union of Seamen's membership voted in a ballot on this year's pay settlement—only 30 per cent.!— and therefore it seems very unlikely that there will be an 80 per cent. poll, and there would also be difficulty with regard to an 85 per cent. majority of those voting.
So as and when the union management agreement comes to an end by the process that the Bill will encourage, there will be some difficulties A particular difficulty that my amendment is designed to offset is very similar to the one which the noble Lord, Lord Oram, raised under Amendments Nos. 5 and 6. It relates to those clever chaps who might be a little greedy—I am not sure whether they are the people whom the noble Lord meant were the goats. In the
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event of there not being a closed shop, these clever and greedy people would be tempted, by the potentially extremely high levels of the special awards in Clause 3 of the Bill—which I understand can go up to £30,000; that was mentioned by a noble Lord earlier, on the basis of what has been said in another place—to relinquish their union membership and endeavour to secure their dismissal from their ship on that account. By comparison if they were to be made redundant, the comparative redundancy payment would be in the order of £ 2,250, which is one-tenth of the kind of sum that they might expect under the special awards.
The way in which they might engineer this situation is to take advantage of the current degree of support for the National Union of Seamen— and there is every reason to suppose this is likely to remain in existence — and of the fact that, regardless of any union instruction, other crew members in a particular ship would be likely to refuse to sail with a rating who had blatantly relinquished union membership. He might, indeed, have encouraged them to take that view. Your Lordships can imagine a situation in which a seaman is flown out to, say, Singapore to join a ship; he has recently married, or his wife has recently had a baby; his wife says, "You must come ashore, Joe", and he sees this as a way to get that extra bit of cash. So he rather ostentatiously leaves the union, he arrives out at Singapore, and the other crew members say, "We don't want that so-and-so on board".
In such a case, two things can happen. The first is that the management may be forced to sack him, and he can then claim unfair dismissal under the earlier part of Clause 2. The other factor, which applies particularly and uniquely, I think, to the seafaring merchant navy, is that there is a minimum number of crew members who have to be on board by Department of Trade regulations for a ship to be able to sail at all. So the company might well he put in the position that they have sacked this man because the rest of the crew will not have him— whether or not that situation has been engineered is another matter, but one is talking about the case where it would be— and, having done so, they then cannot sail the ship until another crew member is flown out from the United Kingdom to replace him.
It is for that reason that I put in both the subsections of my amendment: the first, as it were, to take care of the conditions under which the company might be able to present the case that the person had done it to his own advantage; and the second, which I deliberately linked with an "and", to make it peculiar to the circumstances I am talking about— namely, that if the ship was not able to sail until a relief flew out it could genuinely be said that the company was going to lose a lot of money.
So this is a particularly tailored amendment, and I particularly tailored it because there are special problems about British shipping. My amendments Nos. 154 and 155, right at the end, will take care of the other problems—I am not touching on them now— and I wanted specifically to pinpoint these amendments to deal with their particular problems. I shall be most interested to hear what my noble friend on the Front Bench has to say. I beg to move.
The Earl of Gowrie: I understand and sympathise with the anxieties which my noble friend has expressed in relation to the kind of situation that the shipping industry might, in his scenario, get into, even though I must say that I find it a rather hair-raising, too exciting and slightly far fetched scenario. But all things can happen, and one must try to take steps to protect industries as well as people from unfair practices.
The only point on which I part company with my noble friend is that I do not think this is in any way necessary because the protections already exist quite firmly. My noble friend argued that employers— and he cited the shipping industry particularly—may find themselves caught between union pressure to dismiss, on the one hand, and the cost of giving in to that pressure on the other. If employers are forced by threats or by real industrial action to dismiss an employee for non-membership of a union, then the employer will be able to join the union concerned in any unfair dismissal proceedings and, if the tribunal finds that the union has exerted pressure on the employer to dismiss, it can order the union rather than the employer to pay part of the compensation or all of the compensation award.
But supposing this was, in ordinary language, a put-up job. My noble friend argued that the employer might be at risk from the rogue employee seeking to engineer his own dismissal in order to get the money. But the law adequately protects the employer in any such case. If the employee seeks to disrupt the employer's business so as to be dismissed, the employer may be able to dismiss him fairly for that reason. In any case, tribunals would be able to reduce any awards of compensation to zero if need he if any action of an employee before dismissal should justify this. It should be only where the employer is responsible himself for unfair dismissal that he will face having to pay the whole of the compensation awarded. I think that any industrial tribunal worth its salt would quickly rumble the kind of fraud being suggested by my noble friend, and I hope that with my iteration of the existing law, that will give some comfort to my noble friend and he will be able to withdraw his amendment.
Lord McCarthy: I do not want to hold up the Committee but I should like to contribute to this. It has been a very interesting discussion and I should like to congratulate the noble Lord, Lord Mottistone, on raising an issue of which, in general, one was aware, but not in the specific terms in which he put it. I think that he put it extremely well. It is no accident that he makes his point advised, as he says, by the General Council of British Shipping, because they, with the National Union of Seamen, have the heart and guts of this problem. It is a very serious problem for them. We have some amendments down on this issue, but I am bound to say that I think that the way the noble Lord has put it is the best way to put it and the narrowest way, and it may provide the right solution.
It is true that the problem arises not because of conscientious objection or deeply-held personal convictions. I think a large part of what the noble Earl has said in reply seems to some extent to be based on that assumption. It arises entirely because of the
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Government's commitment to the 85 per cent ballot provision That is the point. For all kinds of reasons, it is impossible for the National Union of Seamen and the General Council of British Shipping to get to the kind of figures that the Government insist upon. If 100 per cent. of the people employed by the General Council of British Shipping wished to participate in a ballot to produce an 85 per cent majority, it could not be done—because of movement between ships, because of the number of ships outside the country and because the number of people signing off. It could not be done. Therefore, there is the problem, of the, as he puts it, "clever chap tempted by the special award which, at its maximum (the Minister said this in another place), could be £ 31,000 to the clever chap. He may say that he is greedy; but let us not use pejorative terms. A man is entitled to maximise his benefit and opportunities. It is £ 31,000 or the maximum available for redundancy. The maximum available for redundancy is, I am told, £ 4,080. None of us can put our hands on our heart and say that, offered the one, we would not choose the other.
It is £ 31,000 versus £4,000, and the clever chap decides to throw in his union card. There is no contributory thought involved. He is perfectly entitled to do it because he does not have a valid union membership agreement. It has not had the 85 per cent. ballot and, as the noble Lord, Lord Mottistone, says, it cannot have the 85 per cent. ballot because of the peculiar circumstances of the shipping industry. Therefore he is the bounty hunter— the intelligent man who wants to maximise his opportunities has this available to him.
There is no answer from the noble Earl; he says he sympathises with the shipping industry, but what is he prepared to do for it? He says he regards it as farfetched. I do not regard it as far-fetched; if anything, I think the noble Lord has outlined it almost too simply and too clearly. It is not far-fetched at all; it is most plausible. He says that we must protect industries as well as people, but what is he prepared to do to protect the General Council of the British shipping industry? He says that if they are forced by threat to discharge this person they can, as it were, go into the joinder procedure. But nobody is suggesting necessarily that the trade union is in some kind of conspiracy. In the example put forward by the noble Lord, Lord Mottistone, as he rightly said, it was the fellow members on the ship who felt like this, all of whom may have voted in the ballot but for technical reasons could not reach 85 per cent. What is the point of the joinder in that situation? It does not solve the problem; they cannot get back the cost of an interruption of supply; they cannot get back the cost of flying further people out to fill up the ship, if indeed they can find them, to sail it on time or after time by joinder.
These things will not solve their problems for them. No, but the amendment will. Again, I do not think that the noble Lord is insisting necessarily on precisely his words. Let the Government come to us and say they do not like these words. Let them bring other words. Let them try to meet us in some way. Nevertheless, the paragraph as we see it seems to be very modest and very moderate. The noble Lord is making two provisions. He is saying:
" (a) that it is to the advantage of the employee to be unfairly dismissed"—

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in other words, it is perfectly clear to an industrial tribunal that it is £31,000 versus £4,000. The noble Lord suggests, secondly, what the employer should be able to show— and after all this is a very significant and difficult thing for him to show; it could not be shown by every employer and perhaps not very much by most employers, but it almost certainly could be shown in the circumstances the noble Lord talks about in connection with the General Council of British Shipping—
" (b) that the employer's business will suffer immediate and appreciable financial loss from such dismissal.'
If they cannot show that then they cannot sustain the case, but if they can show that then I would say we should support this amendment and they will be entitled to be able to invoke it.
The Earl of Gowrie: I am most grateful to my noble friend. I should like to answer just one of the points put to me by the noble Lord, Lord McCarthy, while it is fresh in the mind of the Committee because it may reassure my noble friend Lord Mottistone, and I rather suspect the noble Lord, Lord McCarthy, of trying to come between me and my noble friend. The noble Lord, Lord McCarthy, asked what I was prepared to do to help British shipping to get their ballot and the answer is that the Government are proposing to put down an amendment which will in fact ease their situation in this respect. We are seized of the point that the noble Lord, Lord McCarthy, has made and that my noble friend has made. My noble friend Lord Ferrers will be moving amendments on this to make it clear that ballots can be held over more than one day. That will help the communications problems of the shipping industry, in order to get the full and appropriate turnout. I really think that will meet most of the anxieties of the shipping case. No industrial tribunal worth its salt, it seems to me, would sustain fraud of that kind for a minute.
Lord Mottistone: I am grateful to my noble friend for saying that the ballot can be held over several days. That will be a very useful answer when we come to Amendments Nos. 154 and 155, right at the end of the whole picture. I hope that that answer will be repeated then. I was hoping that my noble friend would say that the Government are aware of the main issue, which I am now trying to explain. I am not expecting the Government to come up with an immediate answer. I hate to say it, but the noble Lord, Lord McCarthy, so well supplemented what I had to say that I hope that the Government will read very carefully what he said.
It would have been much nicer if my noble friend could have said that the Government would take this away and look at it, because it is quite a serious problem in its own right. I presented it in shipping terms. But all I am asking for and suggesting in my amendment is that it shall be a defence, which puts that in the mind of the tribunals beforehand. I am not saying that it shall be an absolute right. This is frequently used as a guideline in legislation, and I should have thought that it deserved rather more of a look from the Government. I admit that the phraseology could well be improved, but I should have liked to think that the Government could have treated me a
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little better on this amendment, for the reasons that I gave. I wonder whether my noble friend could be a little more forthcoming on that.
Baroness Seear: We on these Benches should like very much to support what the noble Lord, Lord Mottistone, has said. We believe that this is dealing with a very real point—I do not want to enlarge what the noble Lord, Lord McCarthy, has said— and that it meets a problem. I very much hope that the Government will take it away and think about it.
Lord Houghton of Sowerby: It is a good idea that we are talking about this rather late in the evening; otherwise, the public would get the mistaken impression that the debate has taken such a bizarre turn that we are now trying to prevent people from wanting to be unfairly dismissed. I think that members of the public will think that we have gone barmy, and that this Bill is not to protect people from unfair dismissal, but is to facilitate unfair dismissal with considerable rewards at the end of the day. Do not let us leave the mistaken impression that there is a lot of money in this for people who want it. The money in this is for people who do not want it; that is the whole purpose of the Bill. Surely the seamen's union and the maritime industry can find a way of dealing with people who want to be unfairly dismissed. What about walking the plank?
The Earl of Gowrie: Not for the first time in debates of this kind, the noble Lord, Lord Houghton of Sowerby, has come to my rescue very effectively. I think it was two years ago that I had a splendid speech, as I thought, on secondary picketing, which I did not deliver because he had just given a much better one from the opposite side of the House, think that the noble Lord, Lord Houghton, has really answered the anxieties of my noble friend. Perhaps he will take that answer in conjunction with the rather specialised amendments which we are proposing at a later stage, to try to deal with the special difficulty that he has outlined, and which particularly, but not uniquely, affects the shipping industry.
I urge the Committee to recognise that this is a measure, as the noble Lord, Lord Houghton, has said, to protect people from unfair dismissal. It would be quite wrong to whet any expectations that there is some easy money to be got in this way. Employers do not have to dismiss people, and there is no compensation if they do not take that course. I should have thought that the idea of an entire union being, as it were, party to a fraud of that kind would also be rather insulting to the union concerned. So while I will look again very carefully at what my noble friend has said, I do so without commitment, because I do not think, given the assurances that I have made, that this is a reasonable anxiety. I do not think it is an anxiety which is liable, in practice. to be fulfilled, but I will undertake to look at it and perhaps write to my noble friend on the subject.
Lord Mottistone: I thank my noble friend very much for that generous end to his reply. I would make

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only one further point. The noble Lord, Lord McCarthy, said that this small pocket of union members surely cannot be expected to commit the union to some undertaking which would then make the union liable. I hope that that is not the case. No doubt we
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shall return to that point later in the Bill, so I will not pursue it further now because it is getting late. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord WellsPestell): I have to inform your Lordships that, in the event of Amendment No. 17 being agreed to, I cannot call Amendment No. 18.
9.51 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 17:
Page 3, leave out lines 4 and 5.
The noble Lord said: Perhaps that is a rather remote possibility! Nevertheless, I rise to move Amendment No. 17, because we come now to ballots. I should not say that now we come to ballots, because the very interesting amendment moved by the noble Lord, Lord Mottistone, has raised the problem of the ballot in a specific area. I would not wish to suggest that anything I say now detracts from the very special problems which he put forward and which the British Council of Shipping has sent to very many Members of both this House and another place. Nevertheless, it is a problem in relation to the ballot and the continual balloting in particular areas of employment to which this amendment is directed. The Bill as it stands adds to the hurdles which the employer, and now the union or shop steward, if they are joined, need to show in an unfair dismissal case in order to prove that the dismissal was fair. It adds to the hurdles that they need to show that there has been a ballot within the five-year period, in accordance with the many provisions of the new Section 58A. This amendment would cut out the two lines which require a ballot in every case and in every area of employment within five years.
In moving these amendments, I must make it clear once again that we on these Benches are not in any way subtracting from our opposition to the whole structure of the Bill which incorporates the balloting principle in relation to union membership arrangements and especially, of course, in relation to ballots which require totally undemocratic majorities of 80 per cent. of the electorate or 85 per cent. of those voting—which is totally indefensible on any grounds whatever. But, if we are to have such things thrust into industrial relations, at least it might be a slight improvement if we did not have to have such a ballot every five years.
I shall not try to match the problems which have been put forward so eloquently on behalf of the shipping industry with examples from other areas of industry, but noble Lords will know that there are groups who have, if not precisely parallel, at any rate analogous questions and problems in this respect. One with which I am acquainted and about which I declare an interest relates to the British Actors Equity Association, which organises actors, stage managers and other workers in the theatre. I am chairman of the London Theatre Council and the Provincial Theatre Councils and have some knowledge of the way in which management and the union have, for very many years since the time Lord Esher drafted the first standard contract for the industry, worked through union membership arrangements and security arrangements, which both sides of the industry find is the only possible basis for the acting profession, especially, to adopt. It would be particularly difficult for them to reach the sort of majorities required, or even any majority, in view of the
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shifting nature of a large number of members of the acting profession. Surely it is no accident that in the Industrial Relations Act 1971 the Government found at the very last moment that it was necessary to invent a new category of approved closed shops which applied to both the shipping industry and Equity, and possibly to other unions, although plainly it was adapted to the needs of those two groups of workers and employers.
Representations have been made by other bodies Fears have been addressed to the Government by the Engineering Employers' Federation, the Institute of Personnel Management, and the Industrial Society all of whom fear that in some parts of the industries of which they have knowledge, those who might adopt a parallel course to that described in the last debate, and in particular someone who did not like his redundancy pay— as my noble friend has suggested— might in all honesty, in a sense, say, "I don't want to be in the union, anyway. If I get out I shall be dismissed. If I am dismissed I can have a special award. I am not contributing to anything". If the Government think that they are going to escape from these problems by putting upon the industrial tribunals of this country the burden of finding contributory fault every time the Government's drafting is defective, then they had better think again, because there are a number of industries where this problem is going to arise.
The point of this amendment is a very much more limited one than that of the previous amendment. The previous amendment was to try to give a specific defence to a particular type of employer. All I say about that is that it may well be that when the Government consider the position of the shipping industry, they will consider that of the theatre as well. But once one has had a ballot and has a majority of 99 per cent., or whatever it is that the Government insist upon, why is it necessary—especially with a shifting workforce— to have a ballot within five years? If one has a shifting workforce, especially seamen and actors— who are sometimes paid by the voyage, or by the week or by the month— are they to be bound for five years by a ballot that has taken place the previous week? There is no particular logic in having a ballot every five years rather than every week. That would apply to mobile workforces on construction sites and so on.
What this amendment suggests is that, because of the problems rehearsed in the particular context of the last amendment, and because of the rather more general problem which that illuminates, when one looks at the need for ballots— and I have in mind the notable speech made by my noble friend Lord McCarthy on the 1980 Bill in relation to ballots, when he said that everyone was turning to ballots and that ballots were the answer to everything!— I do not believe they are the answer, and indeed it is on the record of many employers' federations that managers think that ballots are not always the answer, to industrial relations problems. Or at any rate, if they have had a ballot, they probably think it is quite a sensible idea to let them get on and negotiate with the union or with whatever association they have, even if they are house unions, and decide when to have a ballot again. That seems a much more sensible procedure; the straitjacket of every five years is likely to give rise to a very great deal of bad feeling.
I include in that the case where the workforce changes completely and wants a ballot more quickly, and then the employer says, "I do not have to hold one for another four years." It may well be that one should be held sooner. There is nothing in the legislation to stop it. If the Government do not mind when it is held, then, in our submission, it would be more sensible to leave it to negotiation. That does, of course, illustrate our preference for negotiation on the shop floor compared with statutory rules. If that is the basis of this amendment then it is a very good one. This is only another illustration where the demand for a five-year period is a straitjacket which in many cases will lead to quite unnecessary argument. I hope that the Government will think about the other industries which have particular problems in regard to a particular period being imposed upon them, and will think again in relation to these two lines in Clause 3, of which I beg to move the deletion.
Lord Renton: As I have understood the noble Lord, Lord Wedderburn, he is not complaining of the holding of ballots, but of the holding of them every five years. This is a matter of judgment to be exercised in the light of experience. I do not claim industrial experience but I do remember this, that in the best of industries the annual turnover of the workforce is at least 15 per cent.; and if we take 15 per cent. turning over each of five years it brings us very nearly to a complete turnover of the workforce in five years. In those circumstances, surely we must acknowledge that a very considerable change of attitude may have taken place. Therefore, in the judgment which we have to exercise in deciding how often ballots should be held, five years does not seem to be unreasonable. I hope that my noble friend Lord Trenchard, replying for the Government, will indeed be able to assure us that that is about right.
Lord Oram: I should like briefly to support this amendment since it relates to a point which I made during the course of the Second Reading debate. We have been reminded by my noble friend's opening speech, and indeed in the discussion on the amendment that preceded this, that the closed shop is not, as some people seem to think, an instrument that suits trade unions only; it suits many employers as well. And why is that? Well, it is because once an employer has negotiated a working arrangement with a trade union he knows where he stands. He can get on with running his business, and he can leave perhaps his personnel manager to operate what have become known and acceptable procedures. But if those procedures are to be subject to reaffirmation every five years that smooth running system, which he will have achieved in his negotiations with the trade union, will, I suggest, be replaced by a situation of constant questioning and potential disruption. A small minority of dissidents within his workforce may be constantly campaigning to get the original decision changed. I think that that cannot but create an atmosphere of doubt all the time and therefore of generally bad industrial relations, replacing a situation which may well have been a smooth and amicable state of relationships. Therefore, I
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believe that my noble friend's suggestion that we leave out these two lines would improve the Bill considerably.
Lord Campbell of Alloway: May I support the way in which my noble friend Lord Renton put his observations. But there is one other point I would wish to make. Surely the gravamen of the speech of the noble Lord, Lord Wedderburn, was really that there was an absence of any form of machinery to grant derogations from the closed shop where both the employer and the employed wished to operate a closed shop, and there was no reason in the national interest why it should not be operated. I mentioned this on a previous occasion and gave the example of Equity; there is also the problem of the seamen. If at some time the Government, not necessarily in this Bill, were to introduce some form of arbitral or quasi-judicial machinery so that the closed shop could be operated where it was in the national interest, or where both parties wished to operate it, then surely the substance of the noble Lord, Lord Wedderburn's observations would dissolve. Therefore, his amendment in those circumstances would have no sound basis.
Lord Howie of Troon: I rise to support this amendment in a condition of some excitement because noble Lords will notice that my name appears on the Marshalled List in addition to those of my noble friends on the Front Bench. A situation in which I and my Front Bench on this Bill achieve almost complete identity of view is sufficiently unique not to pass unremarked.
I think that my noble friends are absolutely correct. The amendment will have the effect of removing a quite unnecessary element of compulsion from the Bill. We all know that some closed shops are objectionable, but by no means all closed shops are objectionable. Some of them are desirable, and are desired by those who are involved in them, and have been so desired for a very long time and are not under question.
It seems reasonable that, where closed shops are working properly and where they are accepted by their employees who are involved in them, there should be no compulsion placed upon them to be involved in balloting every five years or at any interval of time at all. What is correct is that there should be some triggering mechanism and there are amendments later in the Bill which would produce a mechanism of that nature. However, this compulsion is not necessary. The amendment removes it and ought to be supported.
Lord Boyd-Carpenter: I feel that the oble Lord, Lord Wedderburn, has ignored a little the basis of this part of the Bill. My understanding is that it involves a compromise between those who hold the view, which I am inclined to hold, that the closed shop is an abomination and that we should proceed— as many of our friends in Europe have done— to outlaw it, and those who, like noble Lords opposite, regard it as a very important accessory to trade union power. I quoted on Second Reading the very significant revealing words which the noble Lord, Lord

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McCarthy, put in his book, to the effect that the closed shop was the basis of trade union power.
As I understand the spirit of the Bill, it has been to indicate that although the closed shop is in many ways an oppressive institution, nonetheless it should be accepted where the overwhelming majority of those who work in that particular industry want it— hence the high majority figure to which reference has already been made. However, as my noble friend Lord Renton pointed out, in most industries and most jobs there is a very considerable changeover in personnel over the years. That must be particularly so in the area to which the noble Lord, Lord Wedderburn, referred, of actors on the London stage.
I should like to say in parenthesis that I have always thought that, acting being an art— and a very fine and impressive art— was a peculiarly inappropriate area for a closed shop situation and that theatre managements should be free to employ people with the personal qualifications and artistic abilities that they wanted, regardless of their union membership. However, that is in parenthesis.
The point that I am seeking to make-it is the only one— is that the Bill embodies a compromise— to say that you shall have the closed shop if the overwhelming majority want it, but not otherwise. That by itself is nugatory unless there is some such provision as a five-year one, to ensure that a view once expressed is still the view of the overwhelming majority. I hope, therefore, that my noble friend will resist the amendment.
Lord Houghton of Sowerby: The first question is whether the period of five years for the review of the existing closed shop is the right period. It is, as the noble Lord opposite has said, a matter of judgment. Years ago when I was negotiating the introduction of equal pay in the Civil Service and I suggested to the then Chancellor, Rab Butler, that five years for an instalment plan was the right kind of period, he said that he thought it should be seven years, because there was a good biblical precedent for it. Probably seven is the right interval here because there is a good biblical precedent for it.
But the more important point is this. My noble friend referred to the criticisms of the Engineering Employers' Federation of the review of the existing closed shop clause. They had all sorts of worries about it. The Director-General, Dr. James MacFarlane, said in the May issue of the Federation News:
" We do believe the Government would do well to defer bringing in the provision for the review of the existing closed shops until after the next General Election so as to reduce the incentive for unions to make general political capital out of existing cases."
I read in the June issue of the same Engineering Employers' Federation News:
" Equally welcome to us has been the Government indication that the balloting provision for existing closed shops will be deferred for one or two years after enactment to allow time for adjustments."
Can we hear something about this? Are we to have an Act of Parliament which provides for a review of existing closed shops? The Minister is to defer the operation of this provision for one or two years. If
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it is two years, it will be after the next general election, Here we are, running into fresh difficulties about the authority of the House to carry on into the next Parliament. I do not suppose for a moment that the present Secretary of State will be there then. Would it not be better to have no provision for review at all than to make one and defer the operation? I prefer the deferment of the operation of the whole Bill— and I said so during the Second Reading debate— if this is how the Government could be reconciled to some change of policy at the present time. If they will go doggedly on, let them doggedly put it on the statute book and defer its operation; at least they have it in mind to do that on one of the most important clauses in the Bill.
I think that we are entitled to know a little more about the Government's intentions. They talk about adjustments. The truth of the matter is that this will have to be watched with great care in the run-up to the general election, because it will obviously be a matter of considerable political controversy. If they want to get rid of this until after the general election, they will postpone the operation until after the general election, when doubtless some other Government— whether the present one or the mixture of this and some other party —will come to power. So I hope the Minister will throw sonic more definite light on the Government's intentions.
Lord Rochester: Like the last two noble Lords, I should like to address myself to the principle involved here. At Second Reading I made it plain that as Liberals we find the whole concept of the closed shop objectionable in principle and we were, therefore, sympathetic to any practicable restriction on its operation. Indeed, speaking only for myself, I went on to say that experience in large-scale industry led me to think that statutory periodic reviews of closed shops at this juncture might prove ineffective. It was with that consideration in mind that I then suggested what the noble Lord, Lord Houghton, has just referred to; namely, that at the Committee stage it might be helpful if, instead of merely being reminded that the balloting provisions would not come into force for another one or two years, we could be assured that they would not operate until after the next general election.
The noble Lord, Lord Boyd-Carpenter, took me to task about this, so let me make it plain to him— for I see him in his place—and to the Committee, that I said what I did only because if this legislation on the closed shop is to prove effective, in my view it is essential that it should clearly command the support of such a large majority of the electorate that it proves workable in practice. However, judged by that test, even in the three weeks since our Second Reading debate the situation has moved on as a result particularly of the disruption of the railways that we are now experiencing.
From the arbitrary decisions of the rail union executives that have led to the disruption that there has been, I have to say that for my part I feel driven to the conclusion that I must now mention. This is that the time has now come to try to establish at periodic intervals—there may be room for discussion as to precisely how long—the degree of support that there is among the general body of trade unionists for

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the monopolistic power that has too often recently been wielded irresponsibly in closed shop situations by certain trade union executives, particularly in the public sector, without prior consultation with their members and at the expense of the community at large.
The Committee should, however, be under no illusion— here I agree with the noble Lord, Lord Wedderburn— that, when this clause of the Bill is implemented, a number of practical problems will arise. Some of them are highly relevant to the amendment we are now discussing. Unions generally may indeed engage in electioneering tactics and possibly act irresponsibly in order to attract votes. There will be rivalry between different unions. People will want to switch from one union to another, and so on. Therefore, we have to face the real prospect that in order to gain a long-term benefit, if it is a long-term benefit that people feel that we shall gain, there may in the short term be effects on industrial relations that are disturbing. It is for that reason that we shall later be moving amendments aimed at seeing that the percentage of support required in ballots affecting closed shops is set at figures which are not so high as those now in the Bill. But, having said that, because of the overriding principle that is here involved as I have sought to state it, I feel that I must oppose this amendment.
10.18 p.m.
Earl De La Warr: It seems to me that this amendment, in the way it has been moved and followed up, apparently carries with it some misunderstanding. We talk about this statutory period. The noble Lord, Lord Howie of Troon, talks about the compulsion to have a ballot. Of course there is no compulsion to have a ballot. This is not a statutory thing. It does not have to happen. We tend to look at this provision as though we were going to move into a period when there were automatically going to be ballots.
What the Bill says is that a man shall not be unfairly dismissed unless there has been a ballot. I very much hope that thinking may change so that the employers may find that they do not want to have ballots because the practice of closed shops, as we know it, tends to disappear. You may think, at least from my point of view, that this is a utopian idea, but please let us look at the question of ballots not as something which we must have but as something which is a protection for the worker. That is the point I wanted to make and I hope I have made it properly; it is not statutory but the absolute opposite.
Viscount Caldecote: It is true, as the noble Lord, Lord Houghton, said, that concern has been expressed about the periodical review of closed shops. However, the noble Lord misrepresented the views expressed by the Secretary of State when he made the conciliatory gesture that he would delay the implementation of the requirement of the review to have ballots. The point surely is that where there has been a closed shop tradition in existence for a long time in a company or industry, it will take time for the industry to readjust to the new provision which, in my view, is good. If the provision were not included in the Bill, there would be no incentive for the industry or company concerned to take action and look around to see what they should
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do when the new procedure comes into effect. We should not regard it as in any way ridiculous to have this provision in the Bill, but to delay its implementation so as to give time for necessary readjustment to take place in the industries or companies concerned.
It has been said quite often that many managers find the closed shop convenient in industry. It is not the job of Parliament to make life in industry convenient and cosy for managers. It is Parliament's job to strike the right balance between the rights of the individual and of the trade union and employer, and in my view the Bill as drafted strikes that balance correctly. We should not press the argument that it is a bad provision to have ballots for the review of the closed shop simply because it is inconvenient to some managements.
Viscount Trenchard: I thank my noble friends for their remarks, almost all in support of the Government's position. I say to the noble Lord, Lord Oram, that I am answering the proposition for the amendment as one who has in the past negotiated closed shops, and been keen to do so, within the British trade union position, even though I had responsibilities in countries where they were not allowed and where there was no trouble because they were not allowed. One thing is what is a sensible thing to do in the situation with which we have been living, which the Government and many people think is not a balanced one. Another thing is what industry will in fact do when the new law becomes accepted, as I believe it will, and when automatic, fairly low-key checks become a regular part of our life, a point to which I shall return.
Public opinion is fairly firmly on our side, and I make that point because I thought nobody would mention it. In fact, I have received a note telling me that the Mori poll conducted for Panorama in November 1981 showed that 79 per cent. of the general public and 77 per cent. of trade unionists agreed that there should be regular secret ballots on whether or not closed shops should continue. That is part of the answer to the noble Lord, Lord Howie, who felt the amendment was unnecessary.
Lord Howie of Troon: I did not.
Viscount Trenchard: I apologise to the noble Lord; he thought the Government's intention in this respect was unnecessary. The noble Lord, Lord Rochester, with qualifications which he later included, also felt it was necessary. The Government believe that it is very necessary. With the powers as they at present exist in union rule books, the difficulty of bringing about a ballot if you are a minority is in fact very real. We believe that the Sandwell, the Strathclyde, the Wallsall dinner ladies, and the British Rail instances and the European Court ruling all in their different ways also support the necessity for a move in this respect.
The power of trade union rule books can be used, and has been used, in ways which make a free expression of opinion after a period of time very difficult. So the Government do not believe in the principle of one man, one vote once. They believe in a low key, automatic check in a ballot. After discussion of various periods of years arising from the Green Paper the period of three years was also suggested. It

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might not be biblical, but nevertheless it was suggested The Secretary of State has suggested five years.
My noble friend Lord Caldecote has spoken both on Second Reading and tonight in relation to the position of the Engineering Employers' Federation, and indeed this aspect, and for instance, the problems of the shipping industry, which we talked about earlier, provide the reasons why the Secretary of State has announced—I point out to the noble Lord, Lord Houghton of Sowerby, that there is nothing new in this—that the Government are still considering whether the transitional period before the application of the ballot should be one year or two years, and they are not likely to make a decision before the Bill becomes law.
I should like for one second to return to the position of the shipping industry. The transition period, together with the amendment in the name of my noble friend Lord Ferrers, for balloting on more than one day, are meant by the Secretary of State to make possible the proper introduction of regulated closed shops in industries where there are difficulties, and to allow time through the transition period to discuss how the arrangements should be made. So for all those reasons I reject the amendment; we cannot accept it.
Lord Wedderburn of Charlton: It was not altogether surprising to hear that the Government will not accept the amendment. The Government do not seem to be willing to accept any amendment to the Bill; nevertheless we shall try. It is very heartening that my noble friend Lord Howie of Troon and I, when it comes to the crunch of looking at the Bill, really do not find that our positions are that far apart, though when it comes to his amendments I fear that there will still be a distance between us. I must say that I find the Government's position quite extraordinary, especially when it is supported by the kind of points that the noble Lord, Lord Boyd-Carpenter, made. I should like to touch on two of them. He said that the closed shop is an abomination. There is a lot of this talk. He also said that public opinion says that it is an abomination. Certainly time and again the public are told that it is an abomination, without any reasons being given.
Of course, when it comes to a legitimate clash between minority interests and majority interests—and that is what union membership arrangements are about—then those who can afford to stand by and not be concerned usually take the position of the minority. But that does not mean there will be low key ballots, as the noble Viscount seems to think, because workers on one side and the other feel very strongly on these matters.
With regard to the second point made by the noble Lord, Lord Boyd-Carpenter, he said, "It is an abomination, let's abolish it, as have our friends in Europe". It really is time—
Lord Boyd-Carpenter: Will the noble Lord not misrepresent me? I said specifically that what the Government were proposing with the ballot was a compromise which I supported.
Lord Wedderburn of Charlton: I take the noble
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Lord's point. He wants the present Bill, but he is happy to travel along the road this distance at least towards the goal of which he approves—that our friends in Europe have made the closed shop illegitimate because it is an abomination. Perhaps that puts it better, and I am grateful to the noble Lord. But if he makes that point, then I am afraid that it is made in error. It really is time that people realised that the union securityarrangement—though, of course, it does not take the same form in every country—is not completely outlawed in every country in Europe. Even in countries like France and Germany, where the law is against it. I remember Professor Sir Otto Kahn-Freund, when he was alive the greatest expert on labour law in the world, saying a few years ago, Try going down a coalmine in the Ruhr without a union card!"
Of course it happens as a practice in many countries, but it goes beyond that. In Holland, in Sweden and in Denmark, and to an uncertain extent in Belgium the law does not totally outlaw closed shop arrangements. Indeed, in the first three clearly it does not. So there is a wide variety of union security arrangements throughout the world. My honourable friend in another place who spoke on this Bill spoke fresh from a visit to Japan, where he visited a factory and asked, "Why do you do so well"? and they said, "We have a closed shop". It is in Hansard, and if noble Lords want the reference I will bring it to our next debate.
So it is not something which is peculiar to Britain or the form of which is peculiar to Britain; and it does not help simply to call an abomination something which is an attempt to get an orderly arrangement of industrial relations and for 95 per cent. of the time to provide for small minority interests—because that is what most closed shops do. If you want to look for that, you can look at it in the forbidden fruits of Gennard. My noble friends and I have been discussing this problem, and we think we should make the offer that if noble Ministers refrain from wearying your Lordships with four dinner ladies in Walsall and Sandwell District Council and three railwaymen in Strasbourg, we might consider not referring to the Gennard Report any more.
But much the most serious point, if I may say so with great respect, was, it seemed to me, the point made by my noble friend Lord Houghton, although I intersperse a comment on the noble Lord, Lord Spens, in respect of the matter which he touched on. that after all this is about dismissal and therefore the five-year ballot is a limit put by statute, but of course you could vary the ballots in between that. But the point also has to be taken that when we come to Clause 9—and I appreciate we are not debating it with this clause—the same sort of limits apply in respect of management action short of dismissal.
Therefore, the managements which have been making representations to the Government have this well in mind I put it in this way in one sentence, that when the Engineering Employers' Federation made its representations to the Government, as indeed many other employers' associations have, not liking this particular part of the arrangement, they of course had in mind that they were not just at risk in the tribunals for actions for dismissal, but also, under the new arrangements, actions in respect of matters short of dismissal which are unlawful in a similar way and

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liable to compensation in the tribunals on the part of someone who is in this posiiton of a non-unionist without a ballot.
But much the most serious point, as I say, was that made by my noble friend Lord Houghton, because I refrained from mentioning in opening on this amendment the Government's curious stance, that they insist on putting this on the statute book but appear to be willing to defer it for two years. They have not got the courage of their convictions, because they know that if they enact this there will be trouble, it will be seen to be silly and they do not want that before the next election. They do not want to enact it after two years; they want the virtue of having the courage to enact it without anybody realising that they have lacked the courage to operate it.
That is the truth of the matter as the record stands now. If that is wrong, then when we meet again the Government can tell us exactly when they are going to bring in this provision on ballots, because they know that many employers' associations are very fearful, not of low-key ballots, but of the few places, no doubt, of very high feeling. We shall not withdraw this amendment. It is notable that, if I may say so, it has had considerable support throughout the Committee, and that is support on which your Lordships may wish to reflect when we come to subsequent amendments on not dissimilar matters.
Viscount Trenchard: With the permission of your Lordships, may I make just one point clear? When I mentioned "low-key automatic ballots", I was referring mentally to the fact that the closed-shop continuation can be authorised by 85 per cent. of those voting. In that sense, there is no worry and no trouble. A fairly small vote would provide a low-key automatic check, which the union I am sure would organise.
On Question, amendment negatived.
Lord Denham: I think your Lordships would probably agree that this is a suitable moment to adjourn the proceedings for the night. I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.