Lords Sitting of 7 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 of Carlisle.

Ceiling of the Chamber: Repairs
Baroness Sharples: 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 progress has been made on the repairs to the ceiling of the Chamber of this House.
The Earl of Avon: My Lords, I am pleased to report that the restoration of the ceiling of this Chamber is progressing well and should be completed as planned, by October 1984. The main contract for the supply and fixing of new joinery and structural carpentry was let in January at a price of £577,544. The contract for the restoration of the painted ceiling panels was let in March for £91,870. This work should be completed by August 1983. The fixing of the panels and carved wood should then take about a further year and the restored ceiling should be revealed to view in October 1984. The overall cost of the restoration should remain well within the original estimate of £3 million, thanks to competitive tendering.
Baroness Sharples: My Lords, I thank my noble friend for that extremely comprehensive reply. Is my noble friend aware that I went up to the ceiling last week and that I also went to see where the work was being done in Regency Street? Will my noble friend please congratulate those who are working at the moment on the preliminary work, which is extremely sophisticated and interesting? Can my noble friend please confirm that the timber to be used for the joists—Scots pine—will be coming from the estate of the noble Earl, Lord Cawdor, and that the trees were actually planted in the reign of George III?
The Earl of Avon: My Lords, I am grateful to the noble Baroness for her congratulations, which I shall of course pass on. It is always a great feeling for me when sitting on the Front Bench to think that she might be crawling about the timbers above my head. I can confirm that timber similar to that used in the original ceiling will be employed and that Scots pine from the estate of the noble Earl, Lord Cawdor, will be used for the carpentry and yellow pine from Canada for the joinery. I am not quite sure of the antecedents of the pines otherwise.
Lord Elwyn-Jones: My Lords, did the timbers come from that source before or after we lost our American colonies?
The Earl of Avon: My Lords, if I am to be diplomatic, I should say that they were conceived before and grew up after.
Lord Underhill: My Lords, I seem to recall on a previous occasion when this matter came before the House that I asked a question about other ceilings within the House itself. I do not know whether the noble Earl can tell us whether a survey has been conducted and, if so, the results?
The Earl of Avon: Yes, my Lords, a survey of the ceiling in the Peers' Lobby has been completed and the report has been evaluated by the department. The condition of the ceiling is poor and, subject to the agreement of the Administrative Committee, a protective scaffold and platform will be erected during the Summer Recess. In view of this discovery it is also being considered prudent to survey the other decorative ceilings in the House of Lords during the Summer Recess.
Lord Margadale: My Lords, I should like to ask my noble friend whether thought has been given to the fact that some people think that, with the lower roof, the acoustics in this Chamber are better than with the higher roof heretofore?
The Earl of Avon: My Lords, I shall certainly bring that particular point to the attention of my right honourable friend. I am not quite sure whether it will be possible at this stage to make any lowering in order to help the acoustics.

The Telegraph Service: Substitute Arrangements
2.40 p.m.
Lord Moyne: 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 under the system of telephoned messages proposed to replace the telegraph service it will be possible to communicate in an emergency with people not on the telephone or whose telephone is out of order; whether travellers or press correspondents able to reach foreign post offices will be able to send written messages to addresses in Britain and whether it will be possible to transmit or receive money by telephone message.
Lord Glenarthur: My Lords, British Telecommunications are currently studying methods by which messages of an emergency nature can be communicated to addressees either without a telephone or whose telephone is out of order after the inland telegram service is withdrawn on 1st October 1982. No final decision has yet been reached.
After 1st October 1982, incoming international telegrams, however originated, will normally be delivered by telex, or first class post. The transmission of money by telephone message would be expensive and

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raises problems of security. But the Government are considering with the Post Office whether there is any acceptable way of meeting the limited continuing demand for this kind of service.
Lord Moyne: My Lords, while thanking my noble friend for his full and very helpful reply, which will facilitate public discussion of what is proposed, may I ask him to suggest to the postal authorities that they should look again at the possibility of incorporating post offices into the Telemessage system so that payment could be made over the counter instead of through call boxes, where often adequate change is not available? I should also like to ask them to re-examine the possibility of transmitting cash which he kindly says is already being looked at. Finally, will he stress the importance of accurate written confirmatory messages?
Lord Glenarthur: My Lords, to eliminate the drastic current losses on the telegram system, pruning of the use of post offices is essential. In the judgment of British Telecommunications, the service will not bear the payment of a handling charge to another organisation. At present, the payment made to the Post Office for telegram acceptance and delivery is running at about £25 million to £30 million a year.
On the second point that my noble friend raised, about the transmission of cash, the procedure at the moment is that cash can he transmitted by telegram but it needs to be picked up from the delivery post office by the person who needs it, on proof of identity. At the moment ways are being studied by British Telecom to achieve this form of transmission. But, as I say, no decision has been reached on it at the moment. So far as confirmation is concerned, the system of confirmatory copies will for the present continue.
Baroness Seear: My Lords, will the noble Lord not agree that it would have been rather a good idea to have done these studies before, and not after, the telegram service was removed?
Lord Glenarthur: My Lords, this is very much a matter for British Telecom and its commercial judgment.
Lord Davies of Leek: My Lords, is the noble Lord aware that some of us are becoming more and more worried? These days fundamental decisions are made without any opportunity of discussion by Parliament. This is a fact. As a student, I often sent an SOS home that I was stranded on station X and please would they send cash urgently. This is of paramount importance to students. Seriously, something should be done so that Parliament has the chance to discuss these fundamental changes.
Lord Glenarthur: My Lords, I am quite sure that both my right honourable friend the Secretary of State for Industry and British Telecom will take note of the noble Lord's views.
Baroness Burton of Coventry: My Lords, can the Minister say whether this change was discussed in
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advance with POUNC, because, as I understand it, POUNC is the one consumer council in which the industry concerned—in this case it is the Post Office and British Telecom—is compelled to give advance notice of a change which could fundamentally affect consumers? If the noble Lord does not know the answer to that, perhaps he could write and let me have the information.
Lord Glenarthur: My Lords, if the noble Baroness is referring to the transmission of money, the answer is that a proposal to end the money transmission service, if it is to be ended—and hopefully it will not be—has been put to the Post Office Users' National Council for comment.
Baroness Burton of Coventry: My Lords, I am sorry, but I was not referring to that. Is the noble Lord aware that I was referring to the change and I was not criticising that—in which telegrams are abolished arid the telephone service is to be used instead? I wondered whether this change had been communicated in advance to POUNC for its opinion.
Lord Glenarthur: My Lords, I am not sure about that, but I shall certainly find out and write to the noble Baroness.
Lady Saltoun: My Lords, will the noble Lord not agree that the proposed new system of telephone messages, which is to replace our present telegram system, will not really be very much more help than a first-class letter would be if a first-class letter arrived when a first-class letter should?
Lord Glenarthur: My Lords, it is perfectly true that in some cases the system will be more lengthy than has been the case with the traditional system. But, in exceptional cases of real emergency, for example, there is little doubt that some means will be achieved of actually getting the message through to the person for whom it is intended.
Lord Segal: My Lords, are we also to see the end of greetings telegrams?
Lord Glenarthur: No, my Lords, it will be possible to send a greetings tele-message.
Lord Glenamara: My Lords, will the noble Lord not agree that the £30 million handling charge being paid by British Telecom to the Post Office is a ridiculous state of affairs?—because only a very short time ago they were the same organisation and this charge did not arise. Is not it yet another example of the quite detrimental results flowing from the splitting up of the old Post Office?
Lord Glenarthur: My Lords, I agree that it is unfortunate that the system allows for those colossal costs, but at the same time it is important to bear in mind that there has been a decline in the use of the telegram system. In 1975–76 4·2 million telegrams were sent and in 1980–81 only 2·9 million, and about 30 per cent. of those were, in fact, greeting messages.

Gibraltar: Spanish Restrictions on Access
2.48 p.m.
Lord Boyd-Carpenter: 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 on how many occasions and on what dates the Spanish Government have undertaken to cease their land blockade of Gibraltar and their interference with access to Gibraltar airport; and whether Her Majesty's Government will now make it clear to the Spanish Government that the continuance of such unfriendly action against a British colony is unacceptable.
The Minister of State, Foreign and Commonwealth Office (Lord Belstead): My Lords, the Spanish Government agreed on 10th April 1980 in the context of the Lisbon Statement to re-establish direct communications and to lift their restrictions. Subsequently, during the visit of the Spanish Prime Minister to London on 8th January 1982 Her Majesty's Government received an assurance that early practical steps would be taken to adjust the application of the Spanish prohibited airspace in such a way as not to impede the safe and effective use of Gibraltar airport. The Spanish Government are in no doubt about Her Majesty's Government's wish that the restrictions on Gibraltar should be lifted: we have made this clear to them on many occasions, most recently during my right honourable friend's meeting with the Spanish Foreign Minister on 21st June.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that admirable reply. Are not Her Majesty's Government a little discouraged by the continual postponements and delays by the Spanish Government in carrying out their undertakings? May not Spain's inability to abide by her pledged word be beginning to raise in Her Majesty's Government's mind a doubt as to Spain's suitability for entry into the EEC?
Lord Belstead: My Lords, Her Majesty's Government were fully prepared to go ahead on 25th June with full implementation of the Lisbon agreement. The further postponement, at the request of the Spanish Government, is regrettable; but both sides are determined to keep alive the process envisaged by the Lisbon agreement. A new date for implementation is to be fixed in due course. On the matter of the European Community, the Government strongly favour Spain's entry to the Community, but the Spanish Government are aware of our view that it is inconceivable that the frontier should remain closed when Spain joins the Community.
Baroness Llewelyn-Davies of Hastoe: My Lords, although the whole House agrees with the view that the present restrictions are insupportable, particularly between a member and a potential member of the EEC, could the noble Lord clarify the position after the Prime Minister's broadcast on Norwegian television? Are the Government going to make preconditions about sovereignty, and so on, before then
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egotiations start? It is important that the country should know what the Government's position really is.
Lord Belstead: My Lords, the Lisbon agreement said that any subject could be raised, but it reaffirmed the British commitment contained in the preamble to the 1969 Gibraltar constitution, and that is the situation in which we would be negotiating.
The Earl of Kimberley: My Lords, would my noble friend not agree that the situation in Gibraltar has changed a lot in the last two years? If the inhabitants of Gibraltar had a ballot today as to whether they wanted the frontier opened, the answer is that they probably would not.
Lord Belstead: My Lords, if the Cintra meeting had taken place, the Prime Minister, Sir Joshua Hassan, and Mr. Isola, the Leader of the Opposition, had both made it clear that they would have welcomed the negotiations taking place. They would have been present at Cintra, and in particular they would have welcomed the opening of the frontier. That did not come to pass. We regret it.
Lord Molloy: My Lords, will the noble Lord be prepared, in view of Lord Boyd-Carpenter's Question—he never answered this point directly—to consider asking the Foreign Secretary to make further representations on the points that have been made in this Chamber this afternoon, and include in them the fact that there exist extraordinarily good relations between the Gibraltarians and the contiguous towns on the other side of the border, from both commercial and general good conditions? It is these things which are also at stake as well as thwarting the possibility of Spain joining the EEC. All these points ought to be made afresh in view of the debate in this House today.
Lord Belstead: My Lords, the noble Lord is quite right that the continued closure of the border has considerable economic and social results which are harmful to people on both sides of the border. On behalf of my right honourable friend the Foreign and Commonwealth Secretary I am to visit Gibraltar from 21st to 23rd July to discuss, on the spot, all the implications of the continued closure of the border.
Lord Saint Oswald: My Lords, is it not the case that Gibraltar airport referred to specifically in the Question lies across the isthmus and is built out from the isthmus known politically as the neutral zone, which has never historically belonged—and still does not—to Britain? Is there not some question as to our right to operate an airport with flights in and out of it?
Lord Belstead: My Lords, my noble friend kindly gave me notice of this question. The territory of Gibraltar consists of the whole area, I am advised, up to the British frontier fence. If I may add to that, our case was set out in some detail in various Command Papers, and I would draw the House's attention in particular to Document 9 of Cmnd. 3131 dated November 1966, which shows that the Government do not agree with my noble friend on this point.
Lord Beswick: My Lords, would the noble Lord agree that our admiration for Spain would be all the greater if their authorities had used their energies to open the gates on the La Linea frontier instead of their batons on the English football supporters in Madrid?
Lord Belstead: My Lords, the re-establishment of direct communications would mean that there would be better relations, which would be for the benefit of those who live on both sides of the border. That, I think, is what we ought to work towards.
Lord Thomas of Swynnerton: My Lords, would not my noble friend agree that, now that we have achieved the great prize of the entry of Spain into NATO, and that therefore Spain is as involved in our defence as we are in theirs, our tone towards this problem ought to be altered and we ought to resolve at all costs to settle it and stop it becoming a festering one?
Lord Belstead: My Lords, I agree with my noble friend. While the Government warmly welcome Spain's entry to NATO, which will be good for the western alliance, nonetheless the existence of restrictions on Gibraltar does not make the discussions within NATO about the details of Spain's membership of the alliance any easier, and of course we regret this.
Lord Hankey: My Lords, in view of the strategic importance of Gibraltar, and seeing what happened in the Falklands, would the Government make sure in any negotiations that happen that the Spaniards are not under any illusion about the importance we attach to Gibraltar? In order to avoid misunderstanding, would it not be cheaper if we at least put off the closure of the dockyard and kept it going for some time until this question is entirely settled?
Lord Belstead: My Lords, no one is under any illusion as to the importance which the Government attach to the status of Gibraltar. Indeed, that status is contained in the 1969 constitution. As my right honourable friend the Secretary of State for Defence said in another place on 1st July, Gibraltar dockyard might take some of the less complex work arising from the South Atlantic operation, but this does not alter the decision to close the Royal Dockyard next year.
Lord Morris: My Lords, despite the deep regret that Her Majesty's Government must feel at the apparently intransigent attitude of the Government of His Majesty the King of Spain with regard to the blockade of Gibraltar referred to in the Question, may I ask my noble friend whether he would consider carefully before tying the problem regarding Gibraltar to the Spanish entry into the European Economic Community?
Lord Belstead: My Lords, I think I have already responded to that point. Clearly, if there is a closed border there will be problems about the Community. Since the Government strongly favour Spain's entry into the European Community, we would therefore very much regret any impediment to that move.

Export Credits Guarantee Department
2.57 p.m.
Lord Hatch of Lusby: 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 will review the operations of the Export Credits Guarantee Department in view of the current world economic situation.
The Secretary of State for Trade (Lord Cockfield): No, my Lords. No such review is necessary.
Lord Hatch of Lusby: My Lords, would the noble Lord the Minister agree that the countries, particularly those of the third world, that have been accustomed to receiving the benefits of ECGD are now in a vicious circle '? Their increased oil bills, the low price of commodities, and the protectionism of the industrial world prevent them from earning foreign currency or the money for internal investment. They are then faced with the necessity to borrow money. Would the noble Lord agree that when such countries are having to borrow money for their own purposes they have to pay very high interest rates? They are therefore unable to repay their debts. At that point ECGD cuts off its support and so the vicious circle is completed. Would he agree with that analysis? Would he recognise that this is a new economic situation in the world in which a re-examination of the operations of ECGD would be very appropriate?
Lord Cockfield: My Lords, I am of course well aware of the arguments put forward by the noble Lord, Lord Hatch, but I do not agree with the conclusions he draws from them. The purpose of the export credit guarantee scheme is to give insurance to our own exporters. It is not a form of aid.
Lord Hatch of Lusby: But, my Lords, if that is the answer of the noble Lord the Minister, then he has totally misunderstood the case I have tried to put to him over the past three years. Is he not aware that I have been trying to impress on him that this is a mutual interest between the countries benefiting from ECGD and our own country? Would he agree that this is a global issue now in which the future of this country as well as that of the third world countries is very much bound up? Does he realise what actually happens when ECGD is removed? Those countries then have to buy, usually inferior goods, from other countries with less stringent rules, thereby losing Britain the trade that they want to engage in with us. Would he look again and consult with his right honourable friends in the Government to see whether, in this desperate situation—
The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers): My Lords, may I interrupt the noble Lord, Lord Hatch, who will be the first to know that the point of Question Time is to elicit information from the Government and not necessarily to put a case? If he could put his supple-

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mentary question as succinctly as possible, I think that would be appreciated.
Lord Hatch of Lusby: I am trying to probe the mind of the Minister, my Lords, as I have been trying to do for three years. I can briefly conclude by asking if he will reconsider his Answer and consult with his noble and right honourable friends as to whether ECGD could play a greater part in the mutual interest of this country and the countries which previously enjoyed the benefits of ECGD?
Lord Cockfield: My Lords, the extreme brevity of my reply did not perhaps do justice to the amount of consideration I had given to the noble Lord's Question before I answered it. The very brief answer to the point he raises is that it is not in this country's interest to supply goods for which it is not paid and for which it cannot be paid.

Business
3.2 p.m.
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon, my noble friend Lord Avon will, with the leave of the House, repeat a Statement which is to be made in another place on the water industry structure.
It may also 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 that adjournment the Third Reading of the Forfeiture Bill will be taken.
Lord Hatch of Lusby: My Lords, while the noble Lord is dealing with that, may I put my question of yesterday? Have the Government any intention now of putting down in this House the same kind of Motion as has been put down for debate tomorrow in another place, so that this House may also participate in the discussion on the Falklands Inquiry?
Lord Denham: My Lords, that is the sort of question which is more usefully pursued through the usual channels.

London Transport (General Powers) Bill
Read a second time, and committed to an Unopposed Bill Committee.

Firearms Bill
3.4 p.m.
Lord Renton: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Lord Renton.)
Lord Sandys: My Lords, I do not think I need take up more than a few moments of your Lordships' time at this stage of the Bill, which, as your Lordships know, has the support of the Government and was fully debated on Second Reading, when a number of noble Lords made helpful and informed contributions. I like to think that the assurances which my noble friends Lord Renton and Lord Elton were able to give during that debate answered all the points that were raised, and I am very pleased that it has not been necessary for any amendments to be tabled. Indeed, for the Bill to have reached this advanced stage in the same form as it began its passage in another place is no mean feat, and reflects the skill of the promoter, my honourable friend Mr. Eldon Griffiths, and my noble friend Lord Renton, the sponsor of the Bill in this House.
During the debate on Second Reading on 11th June, noble Lords expressed concern about the arrangements for bringing the Act into force, and I should like to repeat the undertaking which my noble friend Lord Elton gave then. We shall draw up the non-statutory guidelines comprising measures which can be taken to render an imitation firearm incapable of being readily converted. These will then be circulated within the trade for comment. Indeed, Home Office officials will shortly be meeting representatives of the Gun Trade Association to discuss various firearms matters, and this will provide an opportunity to have a provisional discussion about the guidelines. It is not possible to say how long this process will take, but the commencement order provision will be invoked as soon as the process is complete. I can assure the House that we shall press ahead as quickly as we can. It only remains for me to invite the House to agree to my noble friend's Motion that the Bill be read a third time.
Lord Renton: My Lords, I wish to apologise for my failure to reach the House yesterday in time to move the Third Reading of the Bill. I have only myself to blame. I am grateful to my noble friend Lord Sandys for his kind words and I am sure that my honourable friend Mr. Eldon Griffiths also will be grateful. I have only to add my thanks to my noble friend Lord Elton and the Home Office for the help they have given over the promotion and conduct of the Bill.
On Question, Bill read a third time, and passed.

Employment Bill
3.7 p.m.
Earl Ferrers: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 2 [Dismissal for non-membership of union]:
Lord Jacques Lord Jacques moved Amendment No. 18:
Page 3, line 5, at end insert ("or no such ballot has been requisitioned").
The noble Lord said: This amendment must be read in conjunction with Amendment No. 31 and therefore, in moving No. 18 I shall, with the leave of the Committee, speak also to No. 31. This series of amendments is concerned with existing closed shops. We are seeking to put to the Committee the point of view of some employers who have had closed shops for many years, some of them for more than 50 years, so that all their present staff knew of the position long before they came into the service of the organisations concerned.
In many cases, firms with a long-standing history of closed shops have had excellent industrial relations, and I give the example of the Co-operative Wholesale Society, which has 23,000 employees and has had closed shops since 1919. It has excellent labour relations; for example, it estimates that in the last 12 years its loss due to industrial action has been equal to less than one-hundredth of 1 per cent. of the days that could have been worked, and even that very small percentage was due largely to national disputes to which the CWS was only one of several parties. It has excellent industrial relations, largely because it has this understanding with the unions. It is also because the very organisation with the unions gives it a stability. It is a stablity which is to the benefit of both sides of industry; a stability which is of particular importance to the staff.
Since the union and the employees have a standing within the organisation, the employees have a greater say, a greater voice, in the decisions which are to affect their lives, especially their working lives. Our experience is that when there are such good relations, there is no difficulty in dealing with the occasional conscientious objector. We have found no difficulty in dealing with that problem. Because it happens so rarely and because there are such good relations with the unions we have had no difficulty in resolving the problem to the satisfaction of everybody.
We feel that the Bill will create problems where none exist at the moment, and this we think is absolutely wrong in the present circumstances. The purpose of our amendments is to minimise the damage that will be done by the Bill. The particular clause, or number of clauses with which we are concerned, require the employer, if he wishes to safeguard his position against excessive claims for compensation, to have every five years a ballot of the staff on the closed shop. We know that it is not an automatic ballot. We know that it has not got to take place every five years. But we also know that if the employer wants to protect himself against excessive claims for compensation, in his own interests he will have to have a ballot. So in effect it is a way of compelling five-yearly ballots of the staff.
In life generally those who wish to change the established rules and regulations have themselves to take the initiative, and they must be given the facilities to take the initiative. But it is not for somebody else to take the initiative. This principle is well enshrined
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in our company law. All the quotations that I am to give to the Committee are from the Companies Act 1948. In Schedule 1, Table A, paragraph 58 provides that a poll may be demanded by members representing 10 per cent. of the voting rights. In Section 137 of the Act the minority of 10 per cent. is protected. That section overrides any provision in the articles which would make the demand for a poll ineffective.
So there you have it. The dissatisfied shareholders have to take the initiative. They have to have the facility for doing so, but they must be protected. In this case they are protected by law. Section 132 of the same Act provides that members representing 10 per cent. of the voting rights can require the directors to convene an extraordinary general meeting. So time and time again the initiative has to be taken by the minority, but they have to have the facility to take it, and that facility must be protected by law.
What is good for the relationship between a company and its shareholders is good for the relationship between a company and its employees, particularly in a closed shop situation. Therefore, I suggest that we take a leaf out of the book of the Companies Act and put that kind of provision in this Bill, so that the obligation to take the initiative, and the protection which should be given to the minority, are included in the statute, in the way that they should be included. I beg to move.
Lord Oram: During the Second Reading debate I quoted from an article in the Guardian newspaper by Dennis Landau, who is the chief executive of the Co-operative Wholesale Society—the organisation which my noble friend Lord Jacques has been using as an example for your Lordships' Committee. In the article Mr. Landau rightly was concerned about the requirement in the Bill that all closed shop arrangements will in effect need to be reconfirmed every five years. He was writing as the chief executive of a very large and complex business. With a large business, such as the Co-operative Wholesale Society, with its great complexity of factories, warehouses, products, and services, inevitably there is also a great complexity of trade union organisations, and as Mr. Landau pointed out, he is responsible for no fewer than 44 closed shop arrangements, which, as my noble friend has said, have led to a perfectly harmonious relationship between the management and the employees.
When faced with the prospect of having to renew the 44 arrangements every five years, one can, I suggest, see what a burden of administration is being gratuitously placed upon the shoulders of the management of such an organisation. My noble friend and I are using the Co-operative Wholesale Society as an example because, as is well known, we are closely associated with the Co operative movement, but I suggest that what applies to that organisation applies equally to any large conglomerate business organisation, and that what is administratively burdensome for the CWS would also be administratively burdensome for other businesses.
In my view, instead of the five-year ballot, a closed shop arrangement should come to be reviewed under a balloting arrangement only if a reasonable number of employees want the review to take place because

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they are dissatisfied with the existing situation. In the amendment that we are putting before the Committee we are suggesting that the reasonable proportion be 10 per cent., this, as my noble friend has pointed out, being roughly analogous with the provisions in the Companies Act for the requisitioning of polls of shareholders. That seems to me to be a very reasonable parallel to the situation that we are now considering in relation to union membership agreements.
I notice that when the Bill was before Standing Committee G in another place, Mr. Tom Bradley, for the Social Democratic Party, moved an amendment very similar to that which my noble friend has just moved, except that Mr. Bradley proposed 20 per cent., rather than 10 per cent. as proposed in our amendment. Had Mr. Bradley's amendment been carried, it would thus have been more difficult to requisition a ballot on a closed shop situation. But the arguments that Mr. Bradley put forward were exactly in line with those which my noble friend has put forward.
I notice that my erstwhile noble friends in the Social Democratic Party have not put down an amendment on this question, now that the Bill is before your Lordships' Committee. That might be because, like all of us, members of the Social Democratic Party have many things to argue about and they were selective and decided not to put down an amendment on this particular point. However, in view of the efforts that Mr. Bradley made in Standing Committee G, I hope that when we divide the Committee—as we might have to do, if the Government do not see fit to accept the amendment—we shall receive the support of the members of the Social Democratic Party, and indeed that of noble Lords in other parts of the Chamber, who should, I think, be concerned with the situation of managements of large business concerns who over the years have found the closed shop arrangements which they have negotiated to be of benefit to their business concerns.
Lord Campbell of Alloway: May I inquire of the noble Lord, Lord Jacques, whether as a matter of broad principle there is any viable distinction between this Amendment, No. 18, and Amendment No. 31 and Amendment No. 17, which was discussed in your Lordships' Committee yesterday? If so, what is it? Furthermore, for information (because I am ignorant about this) is there some feature of the Co-operative Society that makes it different from the matters that we discussed yesterday?
Lord Jacques: I assume that the noble Lord is referring to the amendment which dealt with ships.
Lord Campbell of Alloway: No. It was, if I may explain, the one which was to delete lines 4 and 5, moved by the noble Lord, Lord Wedderburn of Charlton —Amendment No. 17.
Lord Jacques: As I understand it, the difference is this. Amendment No. 17 tried to knock out the five-yearly ballot and put nothing in its place. We are trying to knock out the five-yearly ballot but to put in its place that a minority of 10 per cent. can require a ballot.
Lord Jenkins of Putney: I should like to say a word, if I may, in support of my noble friend's amendment. One of the difficulties about this Bill, I think, and indeed about other legislation which noble Lords opposite have put forward from time to time, is the assumption which is implicit in the legislation that trade unions are more or less like one another and that one can legislate in a broad sense and cover all the possibilities in a single piece of legislation. The difficulty that arises from this from time to time is due to the fact that trade unions are very different organisations indeed, and a form of words which may reasonably apply to one organisation and its relationships does not apply to another.
My noble friend has put forward the difficulties which would arise from applying this particular legislation—and he has tried to improve it by this amendment —in so far as the Co-operative Society is concerned. I can see even more difficulties arising from the attempt to apply this legislation in the world of acting. Here, the contracts which are made from time to time are made on all kinds of different occasions and the closed shop (or the union shop, rather) is achieved contractually. At a later stage in the Bill we shall be dealing with that particular problem, but it arises in this case because of the fact that the contracts which are entered into from time to time are entered into individually, separately.
So how does one deal with a ballot arising? Although there is a generality of interest among all people working in the area that they should all work on the same kind of basic contract, all the details of the contract—the salary, and so forth—are of course filled in separately. But it is a general form of contract, known as an Esher standard contract. The name derives, noble Lords may be interested to recall, from Lord Esher, I think the father of the present noble Viscount, Lord Esher, who was instrumental in setting up the London and Provincial Theatre Councils. Lord Esher was a good deal wiser about trade union matters than some of his successors today. He really knew his way about this field, and he set up in this complex and difficult area a contractual relationship which provided a form of coherence which had not previously existed in the whole of the acting organisation.
My noble friend Lord Wedderburn is, I think, the successor of Lord Esher as chairman of the London and Provincial Theatre Councils, and therefore he knows a good deal more about this matter in its current manifestations than I do myself. But I think he will agree with me when I say that the implementation of this particular clause would present extraordinary difficulties in this area because of the fact that there is no factory engaging a large number of people, and contracts are sometimes made at different times with five or six different people in different areas. How, therefore, is one going to get that cohesion of attitude whereby people can decide, "Now is the time at which we want a ballot", or, "We do not want a ballot", and so on?
I do not think that my noble friend's amendment necessarily makes this whole thing workable in the field of acting, but I should like to assure noble Lords—in fact, some noble Lords who know the area will agree with me—that it is extremely desirable that the coherence which these contracts give shall be retained

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in this area; I will not place it any higher than that. Therefore, though I am not at all sure that this amendment will do the trick in making it workable, it would make the clause a good deal more workable than it is without the amendment and for this reason I hope the Government will feel able to say when they come to reply that they accept what my noble friend is trying to do here and will regard this as an improvement of the Bill.
3.27 p.m.
Lord Stewart of Fulham: I am moved to take part in this debate, although my own experience of industrial relations has been very brief, by the fact that, such as it is, I think it is here to the point. A good many years ago I held the office of Under-Secretary of State for War—under, I may say, the wise guidance of my noble friend Lord Shinwell, who was Secretary of State for War at the time. One of my duties every three months was to meet the trade union representatives of the civilian employees at the War Office—and they ranged over a fairly wide field. Of all the duties I ever had to perform, that was certainly the toughest. I remember always coming out at the end of the morning in a state of complete physical and almost mental exhaustion. The trade union representatives, although entirely friendly, were extremely hard-bitten; they knew their case, and they could invariably present it with great skill. Consequently, some of the episodes have stuck in my mind.
One was of a man who had conscientious objection, he said, to belonging to a trade union. That particular trade union did not seek to operate a closed shop; it did not mind his being there to work. But it was proposed to promote him. Once again, they did not object in principle to the promotion of a non-unionist, but what they said about this chap was, "He will go about talking in a loud voice about how much money he saves by not paying a trade union subscription". There is a limit to human endurance. You can talk until you are black in the face about people's consciences, and so on, but where a man proposes to do something that is exceptional he is under a duty to show some regard for the feelings of the people among whom he works.
Another incident was that one of the men had a little daughter who had been and a subscription was being raised to send her to a sanatorium in Switzerland. The subscription was raised in quite a usual way: on pay day, near the place where the men were paid, there was a cap, and as each man received his pay he threw some contribution out of it into the cap. One of the men, who had always been a non-unionist, not content not to contribute, had to inform everybody that he had a conscientious objection to organised subscriptions of any kind. At that stage his fellow workmen, who had put up with him for some time, again took the view that there is a limit to human endurance.
These, admittedly, are exceptional cases, but the whole thing we are dealing with in this amendment, and the whole question of the man who does not want to join a union, is by definition an exceptional case. The point I am arguing, as I tried to say earlier, is that, normally, if you work together with people on the shop floor, you are under some obligation to be a
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good workmate to them. We must remember that we are not legislating for work in the sense of the work that we do in your Lordships' House, or work done in offices in comfortable conditions. We are also legislating for work done sometimes in conditions of extreme exasperation—bad weather, dangerous machinery, the risk every day of anything from a broken finger to a broken back. In those circumstances, the obligation of any man is to show as much respect as he possibly can for the feelings of his workmates. If he has a conscience which obliges him to do something that he knows will make difficulties, then he ought to make every effort to minimise those difficulties; and I am afraid that sometimes he does not. Some of the stories that we read in newspapers that depict herioc people standing out for liberty arc, if you examine them, stories of the kind that I have related to your Lordships.
The trouble with the Government's whole attitude is that this is a matter which ought to be approached with understanding and patience. I would understand it perhaps if the Government had said, "We believe that the man who conscientiously objects to being a trade unionist has a right not to be one; but we realise that this can be a great provocation to his fellow workers and we are going to search for a tolerable way to deal with the problem". What the Government are doing is positively encouraging people not to work with their fellows; saying all the time to them, "Come on!You decide that you are not going to be trade unionists and the power of the law will be stretched out to help you". That is the wrong approach. It is because I think that this amendment tries to get the approach on a somewhat saner basis that I would be among those who support it.
Baroness Seear: I should like to follow up the point made by the noble Lord, Lord Jenkins, and to ask before dealing with the amendment whether some special provision is being made in the case of actors. There was a special case for seamen in the 1971 Act but I do not recall similar reservations made with regard to acting and to merchant seamen in this Bill. I should be interested to know what the noble Lord has to say about that.
I do not quite follow the arguments of the noble Lords, Lord Jacques and Lord Oram, in saying that the good relations in the Co-operative movement are due to their having a closed shop. There are closed shops in other industries, such as the mining industry, which are not outstanding for the absence of industrial disputes. The noble Lords, Lord Oram and Lord Jacques, I should have thought would have been the first to agree that it might be plausible that the good relations were due to their being co-operatives and not due to the fact that they were closed shops. The attitude on these Benches is to attempt to be as evenhanded as possible with regard to the continuation of the closed shop. We do not accept the idea of a closed shop as being an essential and highly desirable element in the development of good industrial relations. We believe with the noble Lord, Lord Houghton, yesterday that a high degree of trade unionism in an organisation is desirable and that there is lot to be said for the union which maintains a 90 per cent. membership without enforcing a closed shop: we think that in the long run

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this may be better for industrial relations and better for trade unionism than the enforced closed shop.
We do not accept the argument, although we do accept the viability of a very high level of trade unionism. On the one hand, we know that there are a number of concerns in which the employers and the trade unions, because, rightly or wrongly, the closed shop has been established over a long period of time, wish that arrangement to continue. We would not wish arbitrarily or ruthlessly to disturb that decision. On the other hand in many cases the nature of trade unionism has changed and we are not convinced that all is for the best in the best of all possible worlds where you have closed shops. We know of cases where individuals extremely reluctantly go along with union membership because it is a bread ticket for many and they would like to be able not to do so if it were not necessary for them to continue their union membership in order to get a weekly pay packet.
We want to make it easy for people to be able to have the question revised and we do not consider that for 10 per cent. of the people to be able to have to get together to say that they want a ballot to take place is a satisfactory way of dealing with this. We believe that modification of the proposals put forward elsewhere in this Bill is a better approach. In a closed shop, for 10 per cent. of the people to organise themselves against the closed shop to have to ask for a ballot could be a way of making themselves exceedingly unpopular and many people will find this difficult. For those reasons, we do not accept this amendment, but we will return to this question when we are looking at the numbers that are required, the percentages required in order that a ballot should take place.
Lord Oram: Before the noble Baroness sits down, in relation to what she said at the beginning of her speech about industrial relations in the Co-operative movement, would she take it from me that neither my noble friend Lord Jenkins nor I was saying that the closed shop was the reason for good industrial relations in the Co-operative movement? We would say that it was consistent with, and not harmful to, good industrial relations. That is different from the way in which the noble Baroness put it.
Lord Boyd-Carpenter: I have known for probably longer than almost any noble Lord here what a superb advocate is the noble Lord, Lord Stewart of Fulham, because I have had the experience of hearing him over a considerable number of years. Certainly, he showed this afternoon that he was on the top of his form as an advocate. His account of his dealings in the War Office with the civilian staffs rang true and, I think, had a considerable effect on your Lordships. But, on reflection, we realise that in a closed shop atmosphere the sort of person who will stand out and insist on his right not to join a union tends almost inevitably to be the awkward type of cuss. The ordinary man, given the general pressure in most organisations to join, however unenthusiastically, will shrug his shoulders and join. He will take the line of least resistance. Only the awkward type, the type (if you like) that the noble Lord described, the one who passed by the cap without putting in a
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subscription, and in an offensive way, will stand out. That does not prove anything except that for the great majority of people, there is sufficient pressure—and those of us with some experience of these matters know that there is pressure in a great many establishments—to join a union.
The purpose of a ballot is to find out whether, among those working in this particular establishment or establishments there is really an overwhelming desire to have a closed shop. As I understand the Government's policy on this, you can have a closed shop if you can establish that the overwhelming majority of people working in the establishment want it. The only way to find that out is to have a secret ballot. Therefore, with respect to the noble Lord, Lord Stewart of Fulham, it does not help us, in considering this question of the ballot, to be told that some of the people who even without a ballot stand out and are awkward about joining a union are the awkward tiresome types whom probably management are as annoyed with as the workers. If you get a ballot quietly, the quiet, considered feeling of the silent majority can exercise itself. Therefore to say that you do not have a ballot, as the Bill provides, automatically after a certain number of years but only if quite a number of people stick out their necks and ask for one, is really to defeat what I think a lot of noble Lords on both sides of the Committee regard as the sensible purpose of this Bill; to restrict the closed shop to where, honestly and expressing their views in private, the great majority of workers want it; and not in other cases.
Therefore, though this amendment has been put forward with great skill, tact and apparent reasonableness, I think the fact is that it does, if accepted, really make a considerable hole in the provision for a ballot. It means that in many cases there will not be a ballot and therefore the position will go on without anybody knowing what is the genuine wish of the workers concerned. I think we ought to know the genuine wish of the workers concerned, and therefore I find myself against the amendment.
Viscount Massereene and Ferrard: Regarding what has been said about the man who did not pay his union subscritpion on grounds of conscience, or whatever it may be, I have always understood that, if that was so, it was unanimously agreed that he would pay the same amount to some charity or some religious body; and in fact I have known an example of that. But I quite agree that it does seem rather unfair if a man pays neither a union subscription nor the equivalent amount to a charity. I agree that it does seem slightly annoying to his workmates.
Lord Kilmarnock: Since the noble Lord, Lord Oram, referred to us on this Bench, and said quite correctly that my honourable friend Mr. Bradley put down a 20 per cent. trigger amendment in another place, which of course was not called, I am afraid I have to tell him it does not mean we shall be able to support him on this 10 per cent. trigger. There is a very considerable difference. We consider this is too low. Also, I cannot find anywhere in the noble Lord's amendment any limitation on the frequency of triggering. Therefore, we might have a constant series of very disturbing

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ballots being requisitioned, particularly in the case of industries which have mobile workforces. Also, in another place we put down lower percentages for the ballots when they do take place, and I see that he and we have very similar amendments in that direction on which we might well come to very similar conclusions; but on the trigger mechanism I am afraid we cannot support him.
Lord Jacques: May I say to the noble Lord that if all that is stopping him from supporting this amendment is that the ballots could be too frequent, I am quite willing to discuss with him between now and Report stage how fequently a ballot should be allowed. Let us carry this amendment before we take the next step.
Lord Shinwell: This amendment may not be regarded as the most significant feature of this legislation, either one way or another, but it has an aspect which is closely related to the principle which I think is uppermost in the minds of Members on all sides of this Chamber. If I need any justification for my intervention, I can only claim—I think there is abundant evidence in support of my claim—that I am in fact the author of the closed shop. That means going fairly far hack into industrial history. I carry with me my union card. It differs to some extent from the union cards held by many of my colleagues on these Benches inasmuch as I am not called upon to pay any subscriptions. That was always regarded as an advantage among the workers before the First World War, who disliked the idea of paying 2d. a week to the union to which they were asked to belong.
I came into the business in this fashion—and this relates to my claim to being the author of the closed shop. I was associated with the seafaring unions before the First World War. It was purely accidental, and not deliberate on my part, but I was involved in a dispute at the time when I was president of the Glasgow Trades Council. That was almost on the eve of the outbreak of the First World War; and when the liners were sailing from the Clyde, from the Mersey, from Southampton and other liner ports, I had occasion to be associated with the departure of those vessels because we had to ascertain whether those who were sailing, whether on deck, in the stoke-hold or in the engine room, were members of the appropriate union. One of my tasks, as national organiser for some years, was to ensure that the men were members of the union; in other words, that the ship was a union ship. It was not called a closed shop, but it was closed in the sense that, although some of those who had signed on at the Board of Trade maritime office and engaged to sail for perhaps a short voyage across the Atlantic or for a matter of two or three years sailing throughout the world on a tramp vessel, nevertheless they understood that there must be complete unity aboard ship and if, as sometimes happened, a man who was signed on said, "I am not going to join the union", an approach was made either to the second officer on deck or to the second engineer below to give the man his cards. Actually I do not think there were cards in those days; they came later on about 1909. But they would say, "Tell him to go; we don't want him". Often the man would say, "I am not going to go",
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but it did not matter—he went. There were ways and means.
That is what started the closed shop, because a man discovered, whether he liked it or not and whether he regarded this oppression as too high, too low or inappropriate, he had to pay in some form or other or else he would disappear before the end of the voyage. There was no doubt about it. The union which had a death benefit used to pay compensation. It had to pay far more in abundance when thousands of men were torpedoed in the First World War. Some were members of my union and some were members of other unions. That is how it started and, having started among the seamen, it continued automatically. Nobody objected to it. It was a natural thing: "You join the union or else there will be trouble". So they joined. There was no question of principle or philosophy about it—not an element or iota of wisdom about it—but it was just the sort of thing you are expected to do.
Here I interpose with a philosophical suggestion—perhaps not so much a suggestion, but an item that might be regarded as associated with philosophy. People talk about their "rights". For example, in this controversy about the closed shop, I am very often approached by middle-class people who say: "You ought to get rid of this closed shop; it is unfair to dismiss a man because he will not join the union", and so on. I try to put some contrary evidence. They say, "But a man has got rights". I want to tell your Lordships that none of you have rights. You have responsibilities but no rights; you have privileges, and that is quite another matter. But rights—in what sense? What is the principle which would entitle a Member of this Chamber, whether he is engaged in activities in this assembly or outside in business, in some vocation or profession, to claim rights? Philosophically, there is no such thing. Long ago, when employers disliked the idea of the development of the trade union movement, the workers demanded rights. They said, "If the employer has the right to dismiss me, I have got the right to strike"; and that was accepted—even by the courts.
What is the position now? At a time of economic distress, at a time when the country is seeking to get back on to its feet, at a time when we are faced by innumerable economic and other problems, there is introduced and for what purpose at all?—an Employment Bill, in order to dismiss any idea of having a closed shop or a trade union movement without any possibility of interference.
Quite frankly—and I am now going to say something which may be disagreeable and which will surprise some people, but I shall say it nevertheless, because I believe in what I am saying—when attacks are made on the trade union movement, it is sometimes a good thing, because it shakes them up. Sometimes the trade union movement want a bit of shaking up. Sometimes the trade union movement are too sluggish, and sometimes inactive, instead of being overactive. If Mr. Tebbit—and Mrs. Thatcher supports him—and Members of your Lordships' House on the other side think it is right to curb the power of the trade union movement—go ahead!It is the very thing that the trade union movement want and need. But it will not improve industrial relations—nothing of the sort.

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What are we asking? I can understand—it is acceptable and, in fact, is embedded in our legislation, so I understand it—that on conscientious grounds a man can say, "I refuse to join the union". He can demand compensation for what is regarded as unfair dismissal and all the rest of it. That is acceptable on conscientious grounds, on religious grounds, on philosophical grounds and on grounds of principle, whatever it may be. But why a man should object to being a member of a trade union, perhaps in a body of 1,000 workpeople, and should want to be the odd man out and claim rights because of that, I cannot pretend to understand. Nor do I think that it is an acceptable principle, either philosophically, industrially, in the sphere of economics or in the hope of improving industrial relations.
I say this to Members of your Lordships' House who are opposed to those of us on this side, who want to help the trade union movement. Of course, I recognise that there are defects; I have referred to them myself, I have written about them and have complained about them. But setting those aside, I can understand noble Lords complaining about the power of the trade unions. But I suggest to them that the trade unions are there only because of the unexampled power of the employing persons in this country over the years. That is the only reason. The raison d'être of the trade union movement is the fact that they have been exploited and dealt with in a fashion which the employers thought was the right thing for them to do. They claimed almost divinity, which was not the possession of the working classes.
Therefore, I suggest this. The Government must make up their minds, sooner or later. Are they going ahead with propositions which will not improve industrial relations, although they may satisfy some elements among the employers?—and there are many employers who do not object to the trade union movement or to its activities. But the Government intend to do this. Is there nothing else for us to do in the promotion of trade, in better relations with other countries, in international trade and in the development of other countries who need our aid and our trade? These are things which we must deal with, if we are to recover. But this is not the way out.
I say this to those on the other side who will reply to this debate. It is almost a Second Reading debate and for that I ask to be forgiven; I am coming to my conclusion and I shall not worry the Committee much more. But I say: be very careful what you are doing. Do not bite too hard. Do not attack, apparently, with malice—although I do not believe that there is malice. It is simply the idea that you must deal with the trade union movement that is becoming too powerful. But the financial employers are becoming too powerful and the middle classes are beginning to realise that. Do not forget that. You have to look over the whole field in order to understand what is going on.
All I am asking is that we deal with this question in a rational fashion. If there is a way out, if there is a possibility of compromise, if we can do something to cement good relations as between the employers and the working class of this country, let us make the effort.
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It is far better to do that than to fight this out and make it into a quarrel, which will take years and years, and from which it will be difficult to recover.
The Minister of State for Defence Procurement (Viscount Trenchard): I believe that it may be the will of the Committee if I move that the House be resumed in order that the Statement can be made. If that is the view, may I move that the House do now resume?
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Water Industry Structure
3.56 p.m.
The Earl of Avon: My Lords, with the leave of the House, I shall now repeat a Statement being made by my right honourable friend the Minister for Local Government in the other place. The Statement reads as follows:
" With permission, Mr. Speaker, I would like to make a statement on the future organisation for water in England and Wales.
" The regional water authorities were set up in 1974 with large memberships, the majority of such members being appointed by local authorities in their areas. The original intention was that these members should represent the interests of consumers. There has for some time been concern that this system is not working as intended. Consumers have not felt that they were really represented and few people knew who their representatives were on the water authority. At the same time, large memberships have led to a proliferation of committees and bureaucracy and inhibited efficient decision-taking. The Monopolies and Mergers Commission, in its report on the Severn-Trent Water Authority, recommended that the present membership should be substantially reduced and not based predominantly on local government representation. The Welsh Water Authority has already been reconstituted on these lines. Earlier this year we issued a consultation paper for England on this question.
" The regional water authorities are substantial undertakings requiring a high level of management ability. Having considered the responses to the consultation paper, the Government have decided to create smaller boards of between nine and 15 members, appointed by Ministers and including executive members on every board. We propose that county and district councils should have the opportunity to nominate people for some appointments to these boards. In addition, land drainage and fishery interests will continue to be represented. Chairmen and members of the new boards will be paid, and will serve for fixed terms.
" Together with these new boards, improved arrangements can then be made for consultation with consumers, local authorities, and other interested parties. Water authorities have already established various kinds of liaison arrangements at divisional level, and we intend to build on these.

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" Our proposal is that water authorities should appoint an advisory committee for each division, which would include representatives of local authorities, but also representatives of industrial, commercial and domestic consumers, and agricultural and amenity interests.
" We shall issue guidelines for the establishment of these committees, and will require the water authorities to satisfy us that proper arrangements have been made.
" In considering the structure of the water authorities we have also examined their relationship with the National Water Council. The National Water Council played a valuable role following re-organisation in assisting the new authorities and helping represent them to Government. They are now fully established and the Government have developed a more direct relationship with the individual authorities. The Government therefore believe that they are able to carry out their responsibilities without an additional central statutory body. We have therefore decided to dissolve the National Water Council. We shall be consulting those affected by this decision, including the trade unions. The Water Space Amenity Commission will also be dissolved.
" The legislation which will be required for these changes which cover both England and Wales will be introduced at the earliest opportunity.
" Mr. Speaker, we believe these proposals represent an improvement in the arrangements for the organisation of the water industry, and that they will command wide support both among consumers and in the water industry itself. I commend them to the House".
That concludes the Statement.
Baroness Birk: My Lords, I thank the Minister for repeating the Statement which has been made in another place. May I ask him why there was no parliamentary consultation before these, as we see it, reactionary proposals were put forward? Under the previous Conservative Government, when the new Water Act was passed which set up the National Water Council and many of the bodies which the Government are now undoing, there was the fullest consultation. When the last Labour Government discovered that the Act was not working adequately a consultation document was circulated, replies came in and a White Paper announcing proposals was published. But then came the general election. These proposals seem to have been shrouded in an amazing amount of secrecy.
What emerges from the Statement is that once again we are seeing the elimination of local democracy and its replacement by a watery corporate centralism which is answerable only to the Secretary of State. Will the Minister confirm that the local authorities which were consulted—although their response to the Government's proposals have not been published—were very much against the proposals? Is it not also a fact that they follow on the anger which was expressed at the last Conservative conference about the rising charges for water which made many of the delegates extremely annoyed? Will the Minister also confirm that nothing in the Statement will bring about a reduction in water
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charges? This is a very important question and I should like an answer to it. Although I readily agree that the make-up of the old water authorities was too many in number, may I ask the Minister why there is no place for local authorities on the new ones? Although we read in the Statement:
" We propose that county and district councils should have the opportunity to nominate people".
there is no assurance there that they will be made members of the new boards. Why is there no place for them? And why, since a great deal is said about the interests of the consumer, is there no place for consumers on the water board? What we shall have will be advisory committees, which in the past have proved to be unsatisfactory. It is on the advisory committees that the consumers will be represented. Industrial and commercial users and other people who are very important to the water industry will also be represented on those committees.
With the dissolution of the National Water Council—" dissolution "is a rather curious word; I should have thought it would be better to use the word "abolition"—could the Minister tell me who will be dealing with the level of investment, who will be dealing with wage negotiations and who will be dealing with the quality of water, sewage treatment and pollution, all of which must be dealt with nationally? Who will deal, for example, with the problem of lead in water? I am sure that the Minister must be aware that the water quality survey which was published this year by the National Water Council and which covers pollution and all the other factors relating to the quality of water is unique. There is nothing like it anywhere else in the world. To whom can we now turn for national water control, pollution and all the other problems which were dealt with by the National Water Council? Finally, is this not, I repeat, a further erosion of local democracy which will not have the effect that the Minister stated he thought it would?
Baroness Seear: My Lords, while we wish to thank the Minister for repeating the Statement, we should like to say that we find very little in it to welcome, beyond the fact that the local boards will be smaller than the previous ones. That at least is a step in the right direction. The idea that these local boards should all be appointed by the Secretary of State, with no democratic control at all over them, seems to us a most retrograde step. Now that the water rate has been separated out from other rates and has grown enormously in the process, surely it would be possible to have a degree of direct election by the people who have to pay for the water to the bodies which control it. Following what was said by the noble Baroness, Lady Birk, I deeply regret that the Government have seen fit to set up yet more of these ineffective advisory committees and, in so doing, to keep the interests which are concerned with the operation of the water bodies off the decision-making bodies. Surely the consumers and the major industrial and union interests should be directly represented on the bodies which make the important decisions.
The Earl of Avon: My Lords, I appreciate the comments of both noble Baronesses. Where we slightly differ from them is that we feel that this is

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not working at the moment and that the elected representatives on the boards are not producing the results for the consumers that we should like. It is for that reason that we are making the change to the divisional level, the difficulty being, as the House is well aware, that the water authorities cover a different area from the local authorities. There is, therefore, disparity between the representatives, with the result that the representatives are not known.
The noble Baroness, Lady Birk, asked in particular whether there would be a reduction in the water charges. That is not a specific aim of these proposals but we hope that we are moving towards increased efficiency by having these smaller boards which will, we hope, improve the water charge position. So far as liaison at divisional level is concerned, we believe that this is the right place for it to be because that is where the consumer can go straight away and talk to people at his own level about water quality. We believe that is better.
The noble Baroness, Lady Birk, mentioned consultation. As I have already said, earlier this year we issued a consultation paper on this question for England, and as a result of the response this is what the Government have decided to do. As the noble Baroness rightly pointed out, the local authorities were not, on the whole, in agreement with this policy. In fact, I think the decision is not one which they like. However, there will continue to be some members with a local authority background on the boards. It is also intended that there shall be local authority members on the consultative committees which will be set up specifically to represent the interests of consumers, local authorities and others directly affected by water authority activities.
In the Government's view, there is no longer any need for a central statutory body and the council's functions of providing advice to Ministers and of providing a forum for the discussion of matters of common interest we believe can be best left to the water authorities themselves. We shall be consulting with the authorities about the other questions which the noble Baroness raised towards the end of her remarks.
Lord Taylor of Gryfe: My Lords we join with the spokesman from the Labour Party and also the spokesman from the Liberal Party who expressed their concern about this move and the fact that local democracy appears to be diminished by the development, in the interests of an anticipated but not proven efficiency. The abolition of the National Water Advisory Council is a matter which gives us some concern, because that was a clearing house for interests in this country which use water in the amenity and recreation field. There are conflicting interests in this field in the use of water by speedboats, anglers, or whatever. There is also a growing utilisation of water facilities for recreation, sailing, fishing, and so on. I would welcome some advice. While I support the idea that consumers are, perhaps, underrepresented in the new provisions, I would welcome some assurance from the Minister that the recreation and amenity interests, which are involved in the water business, are duly protected.
Baroness Seear: My Lords, may I ask the noble Earl, if he does not like the appointment—
Several noble Lords: Order!
The Earl of Avon: My Lords, perhaps the noble Baroness will just allow me to reply to the noble Lord. We are not hostile to local authorities in this. What we are trying to do is to ensure that local authorities carry out their duties effectively. However, we do not believe that water authorities, which are major industrial undertakings, are part of the local authorities' job. It is a closer relationship with the Government to the regional water authorities that enables us to take this step.
I may have misled the House when I replied to the noble Baroness, Lady Birk. I cannot quite remember what I said about the consultation paper. I should have said that having considered the responses, the Government decided to create a smaller board. I may have said something else in my earlier remarks.
Lord Nugent of Guildford: My Lords, is my noble friend Lord Avon aware that this is the first national utility which has been taken into Government control directly? Has he any basis for thinking that from a Government department it will be possible to direct the policies and management of this major national utility of water supply and water treatment better than under the independent constitution it has had for the past nine years? Can he give us any justification for that? Does he really think that he is going to make a better service by running it through civil servants and Ministers who have many other things to look after? This is the first question which the abolition of this national body poses.
Is my noble friend aware that in international circles, the structure of the water industry in this country and of water supply, and the management of rivers and water treatment, is regarded as the best in the world technologically? Does he really believe that he is going to improve on that? What justification does he have for making this major change? There is absolutely no precedent for it. Is he aware that the major criticism of the water industry is inevitably that water supply and water services cost more, but that is because, nowadays, consumers have to pay for what it does cost, whereas before part of it was wrapped up in the rate charges, which no longer carry it, with there being a large amount of Government subsidy being involved? Is he aware also of the general standard which has been achieved over the past nine years in bringing up the standard of water supply in this country and the security of it, and in improving the environmental standards, which has made outstanding progress, as the noble Baroness, Lady Birk, indicated? Is there really any justification for abolishing machinery which has brought all that about?
Does my noble friend really think that civil servants in his department are going to do all this better than the people who have been doing it for the past nine years? Has he any justification for this whatsoever?
Turning to the second barrel of the howitzer he has discharged at the House this afternoon, that he is abolishing local government representation on regional

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water authorities, does he really believe that local people are going to be happier because they have an advisory committee set up by him? Does he really believe that these will give more satisfaction than having local government representatives from all the local government bodies in the region? Does he really think so? Does he believe that this arrangement will better represent the interests of consumers? Is he not aware that consumer councils have never been satisfactory?
Lord Denham: My Lords—
Lord Nugent of Guildford: I can see my noble friend the Chief Whip getting restless, but he can sit down in comfort because I am going to continue asking my questions until I have finished.
Lord Denham: My Lords, if my noble friend will give way for just a minute, nobody respects his knowledge of this issue more than Members of your Lordships' House, but I think he is trespassing slightly on the rules which provide for brief comments and brief questions for elucidation.
Lord Nugent of Guildford: My Lords, if my noble friend Lord Denham will forgive me, I have not trespassed in any way on the matter of comment because I have not made any; I have asked nothing but questions. I agree that my noble friend Lord Avon has a formidable task to answer them all satisfactorily but these are questions which should be asked and should be answered. The first question I asked was: does my noble friend really think that putting the control of a major national utility in the hands of a Government department is going to give greater satisfaction? This is a major question to which my noble friend simply has not addressed himself. Will he please answer some of my questions now?
The Earl of Avon: My Lords, I am grateful to my noble friend for the kind way in which he put his questions. First I should like to say that the Government are well aware of the work which my noble friend has done in this field, particularly as chairman of the NWC. I would like to say that we look forward to absolutely no lowering of standards and shall try to maintain the same standards which he maintained. My noble friend asked several questions and most of them are paraphrased by the words, do we really think it is better? I must answer all his questions by saying, yes, the Government do think it is better, otherwise they would not be doing it.
Lord Peart: How do you know, really?
The Earl of Avon: My Lords, there are several reasons why we have decided to restructure the water authorities. I mentioned a number of them in the Statement. Perhaps I may return to the basic ones, which are the inappropriateness of having these huge boards which was drawn out by the Monopolies and Mergers Commission. There is also a need for tighter links between the Ministers and the water authorities themselves, which we believe can be good. There is a need to have executive members up front on the boards.
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They are responsible for key decision and will produce more efficiency. We want to get rid of some of the bureaucracy of the present arrangement, which is again exemplified in this report. Local authority members were intended to represent consumers, which we consider at the moment does not work. We wish to try to do it in the way we have put forward. I will indeed study the more specific questions asked by my noble friends, but I have tried to answer some of them.
Lord Davies of Leek: My Lords, were the Welsh Authority in discussion with the Government before this action, too, took place? Also, may I assume that democratically this House and another place will have an opportunity of debating this to the full and that agreement will come through the usual channels before this is implemented? Lastly, does the noble Earl the Minister really believe that the more we have smaller areas, the greater improvement there will be in what I concur is one of the finest water systems in the world? Is the noble Earl aware that there will be trouble in Wales unless there is proper discussion about their water supplies, because over the years no proper attention has been given to this problem?
The Earl of Avon: My Lords, I am always very nervous of any questions coming from Wales because I know they look after these matters very carefully. I said in my original Statement, and it is all I have on this at the moment, that the Welsh Water Authority has already been reconstituted along these lines. So far as further debate on this subject is concerned, that is a matter for the usual channels.
Lord Renton: My Lords will my noble friend answer two brief questions? First, can he give us a broad idea of the financial implication of this? Will public money be saved and will it be possible to produce water more cheaply? My other question is, is my noble friend aware that water does not always conveniently fall into administrative boundaries? With his smaller authorities, will it not be necessary to have some way of enabling adjoining authorities at any rate to "borrow" each others' water if necessary? Will there be any kind of liaison written into the statute?
The Earl of Avon: My Lords, with regard to the first question, we are not doing this exercise in any way to save money by cutting staff or anything like that, although there will probably be one or two savings in this field. We are really doing it in the name of efficiency. So far as the boundaries are concerned, the boundaries of water authorities will stay the same. There is no change in the actual boundaries at the moment. But I take the point my noble friend made.
Baroness Seear: My Lords, we on these Benches would like very much to support the noble Lord, Lord Davies of Leek, in his suggestion that this matter should be debated in your Lordships' House. It has been brought about with the minimum of consultation. There was a consultative document, but there has been no general discussion. It is a matter of very considerable importance for a large number of people, and the questions raised in your Lordships' House this afternoon have not, with all respect, been answered.
The Earl of Avon: My Lords, obviously again, I must say to the noble Baroness that that should be discussed through the usual channels, and with her extra influence it is more likely to come about.
Baroness Birk: My Lords, the noble Earl the Minister talked about savings and efficiency. Can he tell us how many jobs are going to be lost by the dissolution of the National Water Council? There is an ominous reference to discussions with the trade unions, but nothing about jobs lost. If there are going to be savings and greater efficiency. I think that this must mean that there are going to be jobs lost. I should also like to know what is happening to the something like £200 million investment in the Water Space Amenity Commission which is also going to go by the board at the same time. I must support what the noble Baroness, Lady Seear, said: while obviously we do not blame the Minister personally, the answers have been extraordinarily unsatisfactory. If this is to be left in this way, there will obviously be very great disquiet from all sides of the House. I think the noble Earl should be aware that we cannot leave it like this and that it has certainly not been received very happily.
The Earl of Avon: My Lords, I take note of what the noble Baroness has said. With regard to the question about staff, there are various parts and functions of the central council, and some of those will be taken on by the regional water authorities. Until discussion with the regional water authorities has taken place, it is impossible to answer her question in depth.
Lord Gibson-Watt: My Lords, is my noble friend aware that the Statement that he has made today will be received very well in many quarters? The question of the Welsh problem was touched upon. I once for my sins had responsibility for reorganising Welsh water and it was then described as an explosive subject. The fact remains that the boards were too big when we created them, and may I say to the Government that I think they are quite right to make them smaller? With regard to the question of the council, is it not a fact, as the Minister himself said earlier, that the great work done by the council was largely used to set the system up, and as to whether it is necessary to carry that system further, may I be allowed to disagree with my noble friend Lord Nugent?
The Earl of Avon: My Lords, I am grateful to my noble friend for coming to my assistance at the end.
Lord Sandford: My Lords, is my noble friend aware that I do think it is, to say the least of it, discourteous to make a Statement like this in the House without giving local authority associations any notice that it was being made, still less what was going to be in it. He is aware, of course, that all the local authority associations would very much deplore this development. My own disposition is to despair at the inability of my noble friends in Government to see the danger of putting local services of this kind directly in the hands of major central Government departments.
The Earl of Avon: My Lords, as far as my noble friend's earlier comments are concerned, of course we equally have to be careful that we do not announce things
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outside Parliament before Parliament itself hears them. I do understand that this morning very considerable telephoning went on in order to inform people as much as possible.
Lord Mancroft: My Lords, would the noble Earl agree that, in view of the number and complexity of the questions put to him on this very important matter, there is possibly a job of public relations to be done to explain to the many consumers of water throughout the country exactly what he has explained so lucidly and so carefully to the House this afternoon. I ask him that question as a consumer of water in the borough of Avon.
The Earl of Avon: My Lords, with that added sting in the tail, of course, I will take my noble friend's point to my right honourable friend.
Baroness Phillips: My Lords, are the Government in possession of evidence which shows that consumers consider the water authorities inefficient? The only complaints that I have ever had have been on the charges for water. I cannot recall anyone ever complaining about inefficiency.
The Earl of Avon: My Lords, I bow to the noble Baroness' knowledge, but of course we have got the Monopolies and Mergers Commission's report on which we are basing this particular action.

Employment Bill
House again in Committee on Amendment No. 18.
4.26 p.m.
Lord McCarthy: When we adjourned the Committee stage, we are discussing an amendment moved by the noble Lord, Lord Jacques, and we have had a very interesting debate so far. I felt that the points made by the noble Lord, Lord Oram, and the noble Lord, Lord Jacques, about the extent to which a closed shop was compatible with good industrial relations—and that was the answer to the noble Baroness, Lady Seear—were well expressed. But it seemed to me that the most unusual contribution we had and the one I enjoyed the most was the short but pointed contribution by the noble Lord, Lord Stewart, because of course he was making the correct distinction between the different kinds of objection to joining trade unions. I am sorry to say that the noble Lord, Lord Boyd-Carpenter, did not appear to understand that distinction, although, as he said, it was clear and lucid enough. The distinction, as I understand the noble Lord, Lord Stewart, was between what one might call the active objector and the passive objector, the man who, if he does have a conscientious objection—and it need not be a conscientious objection—has his conscientious objection as a still small voice, in the words of the late Lord Attlee, who said:
" the still small voice of conscience rather than a blooded trumpet".
It is the still small voice of conscience which is usually the way in which conscience is expressed and it is usually quite able to be made compatible with a

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closed shop or union membership agreement. The man who creates the problem—he is in a very small minority, but he does exist—is the man who not merely says, "I do not want to join the union", but goes actively campaigning, seeking to persuade everybody else to drop out of the union and to do various things which are thought to be incompatible with union membership. In the real world, the distinction between the active conscience and the passive conscience is a very real and valid one and it is a very good thing that we should have it introduced into this debate.
However, I also think that not only the noble Lord, Lord Boyd-Carpenter, but on my reading, the movers of this amendment are wrong—no doubt I shall be corrected if I am wrong—if they think that by passing this amendment we shall stop ballots. As I see it, reading this amendment, it leaves in place, in the body of the Bill, lines 4 and 5—that is to say subsection (3)(c). So one would still have the possibility of a ballot after five years, if the trip, which is the essential element in this mechanism, were not activated in the way in which my noble friend suggests it should be. But this only makes this amendment more acceptable, I would have thought, to those who are bothered about provisions in a closed shop.
One should note that the Government have had a considerable lack of support where they would have expected to get support for introducing this ballot test in the way it is introduced in the Bill. The majority of the Lower House Select Committee on Employment were against this provision. The Engineering Employers' Federation and their regional organisations were against this provision. The IPM warned against the consequences of introducing this kind of change in existing union membership agreements at this moment in time.
Therefore, a trip of this kind which makes it a little easier for groups such as those in the merchant service, which we were discussing yesterday, or other groups which have been discussed in the Committee this afternoon—for example, in the entertainment industry—where the card check is the normal way in which union membership is imposed (in fact, anything which makes it marginally easier for those people to continue with the essential, for them, operation of union membership agreements) should be supported, and we commend the amendment to the Committee.
Viscount Trenchard: The possibility of trigger mechanisms has, of course, been well discussed both this afternoon and in the other place. I am aware of the technical point to which the noble Lord, Lord McCarthy, has drawn our attention; namely, the lack of compatibility with the two lines which have been left in the Bill as a result of the failure of the amendment last night.
I turn to the substance and the intention, as I have understood it, of the movers of this amendment. The Government do not in any way wish to contradict the fact that there have been closed shops working very well for up to 50 years and that there have been excellent relations in quite a large number of those. The CWS and its managing director are both well
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known to me from my past industrial experience. This is, indeed, an example of an extremely well run and enlightened firm as far as industrial relations are concerned. It is not the Government's intention to try to alter the good for the reasons to which I shall return.
The Government's intention is to deal with the exceptions, and some may believe the growing number of exceptions. In this respect I think that I made a pact with the noble Lord, Lord Wedderburn of Charlton, yesterday that we would not again quote well known examples where the views of many employees have been ignored—at times even the majority of employees have been ignored. However, I will say that I do not believe that across the wide specturm of industry today, one would be contradicted in saying, as some noble Lords have said, that there is a very considerable pressure on individuals; and that where a particular union executive in office at a particular time may take a particular view, there is massive power in union rule-hooks as they exist in this country, which can have a major effect on the free expression of not only the odd-man-out, but of genuinely held views, sometimes held by quite large numbers.
I do not want to quote from all of them, but I have in front of me a quotation from the rule hook of a big union which says that:
" The NEC shall have the power to fine and/or suspend from all benefits and/or remove from office in the association and/or exclude from the association, any member who in the opinion of the NEC, (a) by his conduct … acts against the interests of the association".
That is an enormous power to be held by the NEC. It is the Government's view, and we believe that it has been fully substantiated by instances in recent years, that this power of rule books and the exceptions that have taken place mean that an automatic check of the wishes of the overwhelming majority of employees in a closed shop situation should be made.
It has been suggested that the trigger mechanism which this amendment seeks to put forward would not cause disturbance and that an automatic check of whether existing closed shops are wanted to continue, would do so. I think that that is a one-sided argument. If, indeed, the pressures for a trigger ballot are not severe, then trying to get a sufficient number of people in order to trigger a ballot may lead to the kind of instability that the noble Lord, Lord Oram, I think was right in saying many of us in industry knew before closed shops were achieved in some instances. It is the Government's view that once achieved in an orderly fashion and with the full support of the vast majority of employees, there will be much less disturbance and risk of disturbance with an automatic check every five years than depending on a trigger mechanism. I think that that is quite close to the opinion of the noble Baroness, Lady Seear, in this respect.
The point was made that people who want changes should have to initiate them. I think that it was the noble Lord, Lord Jacques, who made that point and who suggested that it was a rule of our society. We do, of course, have automatic elections in many areas and in an area where conditions can arise where a man's ability to earn his livelihood can be put at risk, there is a good case for saying that regular checks should be held in that area. But the noble Lord, Lord

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Jacques, mentioned the position of shareholders. There is an annual general meeting, and a requirement for it, every year. Company rules vary, but in the majority of cases a certain percentage of the directors are re-elected every year. But the company has to expose itself in considerable detail to all its shareholders, and shareholders have individual rights to cause actions to be taken which are enshrined in statute. Therefore, I believe that in fact we should be moving a little more towards the control that exists on directors.
I mentioned a phrase which I did not properly explain in the first instance and explained in a hurry in the second instance yesterday—namely, that what the Government were seeking, in a phrase, was an automatic low-key check with the minimum of disturbance—that is, in so far as balloting every five years, closed shops that are established, is concerned. That is why—and we shall come to it later—we have the proposition that 85 per cent. of those voting shall be an adequate indication that the vast majority of employees want the closed shop to continue. We have not put on that alternative, which is applicable to the periodic ballot, a requirement of a minimum number voting. Indeed, I suspect that, in a later amendment, a noble Lord may be suggesting that for that reason it is not enough of a check. But in the Government's view, if there are no worries, no trouble and good industrial relations as with the CWS, then the probability is that the automatic check will go through without any requirement to get the vast majority to vote again, but with a significant number probably all voting for the continuation of the closed shop.
The noble Lord, Lord Stewart, raised the question of the free-rider, if I may so call him—the man who boasted that he was saving money by not being a member of the union and not paying his dues. I want to make it clear to the noble Lord that further on in this Bill, in subsection (3) of this clause, we reach the position of properly established closed shops which are established and maintained in accordance with this Bill; in those situations, where the overwhelming majority—in the first instance, 80 per cent. of those entitled to vote—have voted for a new closed shop and where the closed shop has been established, a boaster who said that he had left the union simply in order to save money would, I think, fare poorly before an industrial tribunal if he was dismissed and tried to get compensation—that is, in a properly balloted closed shop situation.
The Government's Bill is not one which precludes the closed shop; nor does it allow in all circumstances the free-rider or, as I think the noble Lord, Lord Shinwell, mentioned, the odd man out. There are provisos for the odd-man-out which we shall debate in amendments which have been tabled on subsequent clauses. But it is not true that we are trying to abolish the closed shop. We intend to allow a far bigger measure of regulated closed shops than exist in many —and we never said "all"—other countries.
The point has been made that these arrangements are very burdensome. This is not now the view of industry overall; nor is it its view that these arrangements are, on balance, wrong. Indeed, the Director-General of the CBI has used the phrase that he believes the Government:
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" have got it just about right".
As I said yesterday, my right honourable friend the Secretary of State for Employment has not yet decided whether there will be a one or a two-year transition period. The problems that these particular arrangements, as originally drafted, would raise in some industries have already been taken on board to a considerable extent, and they are reflected by some Government amendments which I shall move later.
So far as the actors are concerned, we believe that we have taken their position on board. We shall of course always consider any representations that are made in the intervening period. But the Government do not consider at the moment that special provisions are necessary in the Bill. It is important to remember that, unlike the 1971 Act, the Bill does not make the closed shop unlawful and there is, thus, no reason in principle why closed shop arrangements in existence should not continue.
Finally, as a result of our experience of recent years and of the generality of industrial relations controls and laws in this country and abroad, the Government—and I believe the public—are in favour of a periodic check of this nature to make sure that the vast majority —not all, but the vast majority—are still in favour of the closed shop; and that this check should be automatic and, after discussion following the Green Paper, should be every five years. We believe that the least disturbance to good arrangements will result from this provision and that it will go a long way to deal with the exceptions, which I believe are all too evident to many of us in this House and to the public.
Lord Beswick: Before the noble Viscount sits down, perhaps he can help me a little. In answering a question which was put by my noble friend Lord Stewart of Fulham, he made it quite clear that a free-rider, as he called him, would not be entitled, and would be told that he would not be entitled, to go around boasting that he was not a member of a union and was not paying contributions, but would not be entitled to claim compensation. Would the noble Viscount be good enough to tell me what his idea of industrial relations is if the man does not claim compensation but expects to receive any salary increase that results from probably quite lengthy and costly negotiations by the union, of which he is not a member?
Viscount Trenchard: Perhaps I should start by mentioning the part that I did not make clear. In a non-closed shop situation, where membership may be at any level, any dismissal by an employer because an employee is not a member of a trade union will be unfair. This is what we are dealing with—unfair dismissals before tribunals.
However, in an approved closed shop situation, which has been through the various provisions—some of which we have discussed and some of which we have not discussed—if an employee makes a great nuisance of himself and if the union were to bring pressure on the employer, a dismissal would be upheld. In the noble Lord's question. he is not a member of the union so expulsion does not come into it. But a dismissal would be upheld.
There are other reasons why tribunals can uphold a dismissal: if a man is causing the firm to find it almost

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impossible to run the show properly, calmly and sensibly. But, in this Bill, we are dealing with the power of a union to remove membership—but that does not arise in what the noble Lord has postulated—and the right of an employer to dismiss fairly, and the right of an employee to claim compensation. When we get to that last stage, if an employee was dismissed by his employer because, in a closed shop situation which has been properly authorised, he boasted that he wanted to save the money, I speculated—and I believe correctly—that an industrial tribunal would not uphold an appeal and would not pay the special compensation. So he would have lost his job and the firm would have gone on in orderly fashion with all its employees in an approved closed shop position.
Lord Beswick: The noble Viscount has not answered my question. I am not talking about dismissals. With respect, this Bill, or this part of the Bill in particular, is not about dismissals. The amendment that we are discussing here is about good industrial relations, which we thought would be maintained if we ha d this trigger mechanism. But the question I posed to the noble Viscount was, quite simply: If we have a situation where 15 per cent. are not members of a union and the 85 per cent., through their trade union representatives, negotiate a new wage scale, what is the noble Viscount's views, as a person whose experience I greatly recognise and admire, of the 15 per cent. who would claim the benefit of those wage negotiations?
Viscount Trenchard: In a situation such as the noble Lord postulates, before this Bill becomes law at all the noble Lord either has to assume that because there is a closed shop now—forget this Bill—people who are not members of unions and do not pay dues will have been fired; or he has to assume that they have not, subject to the flexibility, for example, on the odd conscience case and sometimes at the present moment a payment to charity. I have to say to the noble Lord that he may have his view about what this amendment is about, but the amendment is within subsection (3) of the new Section 58(1) and that subsection deals with conditions. I will read the introduction.
"Subject to the following provisions of this section, the dis missal of an employee"—
so it does deal with dismissals, and that is what we are talking about—
" by an employer shall be regarded for the purposes of this Part as having been fair if"—
we then get the conditions of it having been fair. Then paragraph (c), where this amendment is tabled, in fact spells out the condition that a periodic ballot has been taken. The amendment seeks to alter that to say that a ballot would have to be triggered by the words in this amendment.
I am delighted to debate the kind of industrial relations point that the noble Lord raises which exists now and which will exist in the future, but this amendment concerns what I have been talking about, and my answer to it is as I have given.
4.52 p.m.
Lord Wedderburn of Charlton: Can the noble Viscount help your Lordships on two points which are
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factual and relate to the rather uncertain agreement which he suggested existed between himself and myself? Apart from one certain young lady who shall not be named, three railway workers who are anonymous, and four ladies up in the North whose town must not be mentioned, would he tell your Lordships where are the pieces of evidence about the large oppressed minorities—indeed, at one stage I noted that he spoke even of majorities being oppressed—within union membership arrangements? That is the first point.
Secondly, the noble Viscount quoted a standard rule in a trade union rule book—it is probably in every trade union rule book in the country; it is also in the rule book of large numbers of other associations—about those members who should be called to account for certain actions. Would he like to tell your Lordships about the evidence of the abuse of such rules, which he suggested was also an evil to which these clauses are directed, in the face of the check which is there in normal democratic procedures within trade unions of the High Court procedure to enforce natural justice, and of other bodies, including the independent review committee of the TUC?
On both points I fear I have to go, in putting these to him, to the edge of our agreement because on the first point the evidence is to the contrary of what he alleged and is to be found in the report of the nameless one who sits concealed in the cellars of his department. On the second we are more fortunate because the same survey has already published three major articles in the Department of Employment Gazette—I think I am right in saying—in 1980 and 1977, one of which, the first author being a Mr. Dunn, was called "Throwing the Book". It was all about trade union rules and it showed that any suggestion that rules of that kind were abused in this way is just wrong. Can the noble Viscount tell us the other bits of evidence he has apart from that?
Viscount Trenchard: I believe it to be true—and I do not want to weary the Committee with detail—but a majority of employees as a result of one of these cases affecting minorities had in fact voted that the closed shop should cease. That was my single reference to majority. In general, I say to the noble Lord, the Government's provisions are designed to protect individual liberty and the minorities. The ballots, when they get going, will tend to show how many of these minorities there are.
Responses to the Goverment's Green Paper and the opinion poll that I mentioned last night show clearly the continuing and mounting concern about the closed shop, including that among trade union members. The noble Lord is no doubt a master and has read all the rule books. Up until the time I left industry I always found them extremely hard to get hold of, but we have now, I gather, got hold of rather more of them. I wish they were all published. Our view is that there should be—the noble Lord used the word democratic—a democratic check periodically to make sure that in each case it is still the view of the overwhelming majority that closed shops in this country should continue.
Lord Hatch of Lusby: Before the mover of this amendment winds up, may I say a few words which I

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would hope would have some little effect on the Division, assuming it takes place. I am a little puzzled. I did not expect to have to address the Members of Her Majesty's Government. I assumed that they would be in favour of this amendment. After all, they have argued for years in favour of the principle of contracting in rather than contracting out.
The trigger mechanism proposed in this amendment is a form of contracting in; of holding a ballot only if, as the noble Minister pointed out, those who objected to the closed shop took the initiative. If the opponents of the closed shop are one-tenth as many and as passionate as he made out, surely he is not concerned about getting 10 per cent. to ask for a ballot concerning the closed shop. Therefore, I assumed that I would not have to address Her Majesty's Government.
There is one other point the noble Viscount mentioned in his speech which I can assure him he is most unlikely to see fulfilled. He talked last night and this afternoon about low-key ballots. He is not going to get them. If he is insisting that a ballot is held virtually every five years he will find that for at least 12 months before the ballot is due there will be tremendous uproar in that union which is due to hold the ballot, or in the industry which is due to hold the ballot. There will be lobbying, and there will be what he will call intimidation, and there will be pamphlets and leaflets, meetings will be held and all hell will be let loose in the industry.
What this amendment proposes is that while we do not discard the use of ballots entirely, the ballot within the trade union movement should be used as a part, but only as a part, of the democratic process of trade unionism. It can only be effective if it is integrated into the democratic elements which go to make up that particular trade union. Of course, there are occasions on which a trade union wants to hold a ballot and will hold a ballot, and we have seen them recently. But if the noble Viscount thinks that the members of the union are going to be told by the Government, "You are going to hold a ballot in 1987, but it has to be a low-key ballot", then I can assure him that he is under a great delusion.
I said I was a little puzzled, and I am, but not so much because of the Government's attitude. Whatever the Government's philosophy on other similar issues—whether they believe in contracting in or contracting out, as it suits their purpose—they will follow the path I described on Clause 1 yesterday. What puzzles me is the position of what is called the Alliance. We have heard from the Liberal Front Bench and the SDP Back Bench this afternoon different arguments, both coming to the same conclusion. Those of us who have read the deliberations in Standing Committee G will recall the peculiarity that one part of the Alliance moved an amendment similar to that which we are discussing now while another part of the Alliance was opposing it—and this is the Alliance, we hear, which claims it wants to form the next Government.
Lord Kilmarnock: The clause which was tabled by Mr. Bradley in another place, which I have with me, was entirely different in every respect, or at any rate in many respects, from the amendmen tabled in this
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Committee by the noble Lords, Lord Jacques and Lord Oram. It specified 20 per cent., not 10 per cent., and, as I pointed out in my last intervention, this amendment has absolutely no limit on the frequency of triggering, so that one could have a chaotic situation in unions in which there was high mobility of labour. On those grounds I explained why we felt unable to support the amendment on this occasion.
5.2 p.m.
Lord Hatch of Lusby: I am glad the noble Lord intervened, because it shows that the Alliance so-called is getting even more confused. If it is reduced to the pathetic argument that two amendments are totally different because one says 20 per cent. while the other says 10 per cent., that hardly suggests they are taking the work of this Committee very seriously. I too have the record of Standing Committee G and I have read the speeches of Mr. Bradley and Mr. Cyril Smith, but who do we believe? We had an instance of this yesterday in the first vote. After all the talk we heard from the SDP about the necessity for open government and publicity about what Ministers were doing, in the very first vote yesterday the Liberal Party voted for the amendment, part of the SDP voted for it, part of it abstained, but at least 50 per cent. of it voted with the Government. That will be noted in trade union circles, and we must remember that a considerable number of the SDP members owe a great deal of their public life to the trade union and Labour movements, and on this issue the position has been made clear by the publications of the TUC on the whole principle of the Bill.
As for the triggering mechanism, where does the so-called Alliance stand? We heard from the noble Baroness, Lady Seear, that the Liberals would be voting against it. I am not sure whether the noble Lord, Lord Kilmarnock, was satisfied with the assurance he got from my noble friend Lord Jacques. If his only objection was to 20 per cent. rather than 10 per cent.—and I have some sympathy with him on that—having been told that talks would take place between now and Report, perhaps he will come into the Lobby with us. I assure him that he will not be held to what has been announced this afternoon on the tapes; namely, that the SDP will abolish the right of Life Peers to vote. We shall be glad to get his vote in before the policy of the SDP is put into operation.
To summarise the argument, if we are concerned not so much with the ideology that runs right through the Bill, which I described yesterday, but with good industrial relations, then we shall not command trade unions to hold ballots every five years. We shall put the onus for the holding of ballots on those who object to existing closed shop agreements and say to them, "If you feel strongly about it, you have the right to demand a ballot, and a ballot will be held. But it is up to you to show to what extent the Minister is correct in saying that there is great disturbance of mind within the trade union movement about the closed shop. You must show that is so by gathering together just 10 per cent., one in ten, of your members, and once you have got 10 per cent. a ballot will be held, and then it will not be held according to the Bill as at present drafted."
Lord Rochester: I shall resist the temptation to dwell on what the noble Lord, Lord Hatch, said, except to say that what was said by my noble friend Lady Seear was entirely consistent with the remarks made by my honourable friend Mr. Cyril Smith in another place. The noble Lord, Lord Kilmarnock, sought to justify the attitude taken in your Lordships' House on this point in relation to what was said in another place. I suggest that the easiest way of finding out quickly how the Alliance will vote is to enable the vote now to take place, and I sense that that is what the Committee wish to do. I hope that red herrings—because I do not think they are much more than that, such as that introduced by Lord Hatch—will not be proceeded with further, either now or later, or we shall find ourselves here until three o'clock tomorrow morning.
Viscount Trenchard: I entirely agree with the noble Lord, Lord Rochester, and I want to correct only one point made by the noble Lord, Lord Hatch. There is no question in the Bill of the Government telling anybody to hold a ballot. The proposal is that if a company, probably in agreement with one or more trade unions, wants the protection of the Bill to be able to deal in a closed shop position with a quite unnecessary rocking of that boat, then it must have a check every five years by secret ballot to see whether the majority of those voting still want the closed shop to continue. I believe that to be democratic, and I resist the amendment.
Lord Jacques: I think everybody will agree that it is time we wound up the debate. The issue before the Committee is a very narrow one. It is simply whether there should be a ballot every five years, or only when it is requested by 10 per cent. of the employees concerned, and the latter course would embody in the Bill the principle which is enshrined in the Companies Act. That is the issue. I think that there have been only three points raised against it. First, the noble Baroness, Lady Seear, said that it would be difficult to get 10 per cent. I think that the answer to that is that it would certainly not be any more difficult than it is for shareholders, and if it is good enough to put the provision in the Companies Act, it is good enough to put it in this Bill.
Secondly, the noble Viscount the Minister said that the ballots would give rise to disturbance. I think that he received his answer to that from my noble friend Lord Hatch of Lusby, who pointed out that we were likely to have far greater disturbance with five-yearly ballots—
Viscount Trenchard: I should like to correct one detail. What I hoped I said, and what I certainly intended to mean, was that the activating of the trigger mechanism which the amendment seeks to introduce would cause disturbance. Working up 10 per cent., 20 per cent., or whatever proportion is decided in order to trigger a ballot would in itself cause more disturbance than would what I have termed a low-key, automatic check.
Lord Jacques: I should imagine that having to get 85 per cent. when the ballot comes will cause more disturbance—
Viscount Trenchard: Eighty-five per cent. of those voting—
Lord Jacques: Or 80 per cent. of those who may vote.
Viscount Trenchard: No, not—I repeat—for the automatic ballot; it is 85 pet cent. of those voting.
Lord Jacques: We still think that there would be greater disturbance and more extensive periods of preparation if there were ballots every five years. There would be six months during which there was no work done at all, other than preparing for the ballot, whereas with the trigger mechanism that we have suggested there would be less frequent ballots, and in our opinion there would he less disturbance of output.
With regard to the third issue that was raised, the noble Viscount the Minister pointed out that, in the case of companies, the shareholders had annual meetings. The trade unions in their local branches have weeklyand monthly meetings, not annual meetings. There is plenty of opportunity for discussion.
This part of the Bill is the most unpopular with employers—with employers! I ask the Committee to note what was said by the Engineering Employers' Federation. It said that it entirely disliked the provisions of the Bill relating to existing closed shops and ballots. At a later stage, after it had been "got at", it said, "We welcome the Bill, but we also welcome the Minister's decision to postpone those provisions relating to ballots and existing closed shops". If that does not indicate that the federation had been "got at", I do not know what does.
I believe that this is an important principle on which we should divide the Committee, and in conclusion I would say to my noble friends in the Social Democratic Party, if we have your support and if after the Committee stage you want provisions of the Bill further amended, personally I should be quite happy to talk to you and agree the amendments. In the meantime, I ask for your support.
5.15 p.m.
On Question, Whether the said amendment (No. 18) shall be agreed to?
Their Lordships divided: Contents, 49; Not-Contents, 141.

DIVISION NO. 2

CONTENTS

Alexander of Tunis, E.

Ellenborough, L.

Auckland, L.

Elliot of Harwood, B.

Avon, E.

Elton, L.

Beloff, L.

Faithfull, B.

Belstead, L.

Ferrers, E.

Boyd-Carpenter, L.

Fortescue, E.

Campbell of Alloway, L.

Gibson-Watt, L.

Campbell of Croy, L.

Glanusk, L.

Cathcart, E.

Glenarthur, L.

Cork and Orrery, E.

Gowrie, E.

Crathorne, L.

Grimston of Westbury, L.

Cullen of Ashbourne, L.

Hankey, L.

Davidson, V.

Harvington, L.

De La Warr, E.

Henley, L.

De L'Isle, V.

Hornsby-Smith, B.

Denham, L.—[Teller.]

Kilmany, L.

Digby, L.

Kinnaird, L.

Dilhorne, V.

Kinross, L.

Drumalbyn, L.

Lindsey and Abingdon, E

855

Long, V.

Sandys, L.—[Teller.]

Lyell, L.

Shannon, E.

Mackay of Clashfern, L.

Sharpies, B.

Mansfield, E.

Skelmersdale, L.

Margadale, L.

Spens, L.

Marley, L.

Stodart of Leaston, L.

Marshall of Leeds, L.

Sudeley, L.

Mersey, V.

Swinton, E.

Mottistone, L.

Teynham, L.

Mountevans, L.

Trenchard, V.

Murton of Lindisfarne, L.

Trumpington, B.

Newall, L.

Vaux of Harrowden, L.

Norfolk, D.

Windlesham, L.

St. Davids, V.

Young, B.

Saltoun, Ly.

NOT-CONTENTS

Ardwick, L.

Jenkins of Putney, L.

Beswick, L.

John-Mackie, L.

Bishopston, L.

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

Blease, L.

Brooks of Tremorfa, L.

McCarthy, L.

Cledwyn of Penrhos, L.

Oram, L.

Collison, L.

Peart, L.

David, B.—[Teller.]

Pitt of Hampstead, L.

Davies of Leek, L.

Stewart of Alvechurch, B.

Elwyn-Jones, L.

Stewart of Fulham, L.

Glenamara, L.

Stone, L.

Gosford, E.

Underhill, L.

Houghton of Sowerby, L.

Wedderburn of Charlton, L.

Jacques, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.23 p.m.
The Earl of Halsbury The Earl of Halsbury moved amendment No. 19:
Page 3, line 7, after ("grounds") insert ("(a)").
The noble Earl said: In moving Amendment No. 19, with the leave of the Committee, I should like to take also Amendment No. 21. Amendment No. 19 is a paving amendment, and Amendment No. 21 is the substantive one. I also understand that the noble Lord, Lord Howie of Troon, may wish to seek leave to speak to his Amendment, No. 47A, and, if it is your Lordships' pleasure that he should do so, I have no objection.
In the course of all the employment Bills which have occupied your Lordships off and on for the last 11 years, I have sought to emancipate professional men from being swept into closed shop agreements, involving them in forms of activity to which they are by and large strangers and in which they have very little direct interest because the mattess involved are rather foreign to their outlook. The tensions which arise across the floor of the Chamber in these contexts are largely concerned with the relationship of master and servant. Professional men do not think of themselves in quite those terms. They think of themselves more as consultants to clients, and it is in a client-consultant or a client-adviser or (in the case of barristers, for instance) a client-representative relationship that professional men see themselves.
I have not secured any wickets in my attempts to do this over this lengthy period, because I have been faced with certain criticisms as to the breadth of the emancipation that I sought to introduce into the Bills. I have, however, on this occasion very considerably narrowed my requirements, and I hope the noble Viscount, who comes fresh to the arguments that I am going to adduce in this field, will listen to them sympathetically and perhaps help me along with negotiating a final form of amendment on these lines.
The criticisms that have been made of my previous efforts have been under two headings. The first was that I was demanding too much in the sense of an elitist attitude to the existence of professional men, with its divisive consequences. I have therefore drafted this amendment so as to ask your Lordships to agree to no more than accords with natural justice. The second criticism that I attracted on earlier occasions was that I should be opening the floodgates to anyone who chose to invent a profession of which he then claimed membership and as a result of which he received certain immunities which it was never really originally intended he should. I have tried to disarm this criticism by confining the scope of the amendment to those cases where Parliament and the Crown have pre-empted the definition of what a profession is by assigning statutory responsibilities to its members.
A legislature ought not to violate natural justice by framing laws which, taken together, place the subject between contradictory and incompatible requirements. In the course of life we often run into situations represented by conflicts of interests, and sometimes we are required, as it appears to us, to run with the hare and hunt with the hounds, but for the most part we manage

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to steer our way through these difficulties. My amendment is concerned with those particular situations where evading prospects do not arise, and I should like to illustrate the points I am making from three bodies with which I am concerned; the Royal Society of Chemistry, whose house colours I am wearing this afternoon, so as to be flying under the right professional flag; the Pharmaceutical Society of Great Britain, which is close kin to the Royal Society of Chemistry; and the Institution of Civil Engineers, of which I am an honorary fellow. These are all typical of the professional bodies that I am trying to emancipate.
One enters them by passing their examinations or possessing university degrees which they regard as the exempting equivalent. The Royal Society of Chemistry is incorporated by Royal Charter. By-law 16 under that charter provides for the regulation of the behaviour and the disciplining of members, and the enforcement of proper standards of professional behaviour on them. You cannot just think this charter and by-law out of existence because it would be convenient if it went away. Under the Food and Drugs Act 1955, you cannot obtain a post as a public analyst without the appropriate qualification from the Royal Society of Chemistry, which issues diplomas to its fellows in such special subjects.
If, as a result of being forced into taking industrial action through involuntary membership of a trade union, one was neglectful of one's duties as a public analyst, one would find oneself on the horns of a very genuine dilemma. One would either be disciplinable by the Royal Society of Chemistry for breach of duty under By-law 16, with the threat of expulsion and consequential loss of employment (because a person who was not a fellow of the Royal Society of Chemistry could not be a public analyst) on that score; or else one would be disciplinable by a trade union, with the threat of expulsion for not being in breach of one's duty and a cognate forfeiture of employment for that reason.
I have dealt with public analysts, and, if anybody wants to know what they do, I will reply to that in winding-up, but for the moment I pass on to another creature, the agricultural analyst, who would find himself in much the same position under the Agriculture Act 1970. Again, a civil engineer, a member of another body incorporated by Royal Charter, can also have statutory duties under the Reservoirs (Safety Provisions) Act 1930 and the Reservoirs Act 1975; and breach of that duty could be by neglect of duty due to absence from work.
Your Lordships may be tempted to think that the provisions of Royal Charters are prerogatived matters which are not at issue before us this afternoon. But you cannot escape responsibility by that route because the regulations, disciplinary procedures and powers of the Pharmaceutical Society of Great Britain do not derive from a Royal Charter of Incorporation but are provided under Section 6 and what follows of the Pharmacy and Poisons Act 1933 and Section 7 and what follows of the Pharmacy Act 1954 which between them set up a statutory committee for the purpose of regulating the membership and behaviour of the members with nominees from the Privy Council. It is part of the statutory framework of the country.
As an example of what can happen, a pharmacist
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who, I understand, absented himself irregularly from hours when his pharmacy was advertised as open was struck off the register. There is your precedent. You cannot talk it away. It has happened before through absence from work and could happen again. I want to assure your Lordships that I am not dealing in contingencies and hypothetical cases. The matter has already been before the courts in Scotland in the case of Partington v. NALGO, with Partington as pursuer and NALGO as defendant, where Mr. Parting-ton, an engineer employed by Scottish Gas on the safety aspects of the gas supply network, was called out on strike by NALGO and told to stay at his work for safety reasons by his employers. His sense of public duty and the safety of the public and of the network for which he was responsible was such that he defied NALGO and obeyed his employers.
He was therefore expelled by NALGO who then invoked the closed shop agreement with his employers to have him dismissed from his employment. At this point, Mr. Partington struck back—in, for him, a very lucky hour, for he won his case for one reason and one reason only. The small print in his contract of employment enabled him to win his case. That small print was not designed for that end in view. I have a photocopy of the Law Report on this subject and if any noble Lords who are lawyers would like to look at the judgment in that case to verify what I say I should be happy to lend my copy or to supply an additional photocopy. My view is that the state of the law should be such that the case could never have been brought—not "should" but "could never have been brought"—irrespective of the precise wording of the small print in his contract.
What it is that I hope from the noble Viscount in reply to my proposals? I hope he will face them with an open mind. I hope he will not say as noble Lords have been told many times before, "We cannot agree to what he is proposing"—because the amendment that I am proposing is something much narrower than on the earlier occasions. I am not invoking the Brahminical status of the professional man, but the principles of natural justice and that every man should have the right not to be placed between two fires where he must lose whatever action he takes. In that spirit I beg to move.
Lord Howie of Troon: I hope I can have the leave of the Committee to speak to my Amendment No. 47A which I think appears on page 7 of the Marshalled List. In order to isolate this particular question, I put my proposal in the form of a new clause rather than an amendment to Clause 2 as the noble Earl, Lord Halsbury, has done. My proposals differ from his—although I support in general terms the proposition he made—in that I do not limit the qualification that I require to people obliged by statute. I see the problem wider than that if only because one of the examples which the noble Earl mentioned was the number of civil engineers under statutory duties in relation to reservoirs under the 1930 and 1975 Acts. It is true that they come under the proposition which he outlined; but that is a very small number of civil engineers. The Act applies only to those on reservoir panels and, at a guess, I would say that the number would not be

811
many more than 100 to 200 engineers (I may be open to correction) out of a profession of 50 thousand or more. I want to see this protection go beyond that very small number to cover the whole of the profession.
Let me say first in opening—and I think that this is quite an important point—that I am not concerned here with finding a way in which professional men can escape union membership, if "escape" is the right word to be used. When we debated this in the course of the 1980 Act, it was frequently said by Government speakers that professional people could invoke the conscience clause and keep out of trade unions thereby. That is not what I am looking for. I approve of professional men joining trade unions wherever that is appropriate for them. I approve of them accepting the obligations of trade union membership as far as they can. The problem is that a conflict arises (as the noble Earl has outlined) between their obligations to their union and their obligations to their professional institution, especially in matters of health and safety—and the example the noble Earl cited of the gas board employee is a good example.
I have drawn my amendment deliberately narrow in order to highlight the essence of the problem. It is so narrow that it excludes a number of professions who might face the same problem. I have not included the pharmacists and the people that the noble Earl referred to and I have not included architects, quantity surveyors, solicitors or anybody else, but I do not wish to make my amendment to be turned down on that ground.
I regard my amendment as exploratory so that the Government and your Lordships can examine the problem and decide whether it can be dealt with through this Bill and how best to deal with it. If we decide that the amendment, as drafted, is inappropriate, we can re-draft something at report stage which would cover a wider range of professional men than I have allowed in my amendment. What I have done is to confine the exclusion which I seek to professional engineers. Because, in our debates in 1980, there was some question raised in the House of who exactly they were, I was accused of a lack of definition—rightly. I merely said, "professional engineers".
I have tried on this occasion to tighten up the drafting in the second subsection of my amendment where I have defined the engineers to whom I wish this to apply as those who are members of engineering institutions which are corporate or associate members of the Council of Engineering Institutions or who might be so recognised by the Engineering Council when it later gets into operation. I am quite well aware there are many other people to whom the same difficulty might apply. Some unions already recognise this problem and recognise this as the problem of the conflict between differing obligations to differing groups.
I think it is always easiest to resolve the problem through the rule book. Where unions have done that they are to be applauded, but most of them do not. STAMP, for instance, which is the white collar section of UCAT, has a rule which is very similar to the first part of the amendment which I have put down. It is very similar because my first draft was copied from their rule book. The Council of Managerial and
812
Professional Staffs, which consists of a number of the white collar sections of the electricians' union, has a rule which says:
"The Council agrees that its members should uphold the dignity and reputation of the profession and must always safeguard the public interest."
So far, so good: where unions have adopted rules of that nature, my problem is solved. But the great majority of unions do not do it, and since we last debated this subject there have been a few occasions in the civil engineering profession where leading members of the profession have come into conflict with their union and have been threatened with expulsion. In all the cases which have come to my notice, expulsion from the union has been averted, but only through the efforts of the institution to try to rescue their members. Left to themselves, these men would have been excluded from the union and, as in the case which was cited by the noble Earl, Lord Halsbury, would have been in danger of losing their jobs.
There are one or two other matters which I should like to refer to, since they have been raised in the debates we have had on this matter in previous years. We have been told before that any Bill of this nature should not be cluttered up by a number of special cases. I think that is quite a good principle, but there is a difficulty, and I can see from the look on the Minister's face that he has that argument ready and doubtless will produce it; so I give it to him now and he can produce it later on. I would remind him of one thing. The whole of Clause 1 and Schedule 1 to this Bill are intended to deal with special cases. We have had one or two comments across the Floor about the extent to which we can refer to these cases, and I am anxious to act in line with the two Front Benches. But Clause 1 and Schedule 1 refer to a very small number of people. The highest number which has been suggested is taken from a nameless report, which nobody has seen and which suggested that there might be 400 people involved.
If the Government are willing to undergo the problems of drafting and passing through both Houses Clause 1 and Schedule 1 in order to remedy an injustice suffered by 400 people—and I do not dispute their right to do that—I do not think it is asking too much for them to face a small amendment or a small new clause on behalf of a vastly greater number of people. We could solve the problem within the Bill by means of a clause such as mine, with a schedule defining the people who are involved.
I should like to refer also to another matter, which has come up in debates earlier. The noble and learned Lord the Lord Chancellor reminded us that, if you put in special cases by including one group, you exclude others. That seemed, to the lawyers among us at any rate, to be a strong legal point, especially as the noble and learned Lord brought a number of Latin tags to bear on his argument. In the course of a recent experience of mine on a Private Bill Committee, my attention was drawn to a phrase used in legislation exactly to deal with matters of this kind—that is, in order to avoid including one and excluding another. There is a phrase—"without prejudice to the generality"—which might somewhere be included. Those words are not in my amendment as it stands, but there would be room for those few extra words.

813
The one last thing I want to say applies more to Members on my side of the Committee than to your Lordships as a whole, although I daresay that Members everywhere will be polite enough to listen to it. This is a matter of concern to professional workers, among whom very considerable efforts are being made by a number of trade unions to recruit members—efforts which I applaud and support. It is perfectly proper that these people should be recruited; but I should like to hear the views of my noble friend on the Front Bench on the proposition which is before us today. I say that really because when we discussed this matter in 1980 the Front Bench did not pass any opinion at all, and what opinions were passed from my own party came from a most respected and much loved senior Back-Bencher, who I see sitting in exactly the same place at this very moment. After the debate I was asked why it was that the Labour Party, which has an interest in trade union matters and an interest in recruiting white collar and managerial workers, had expressed no opinion on a problem which, although a marginal problem, is one which exercises the mind of a quite important section of our society.
Lord Mottistone: Very briefly, I should like very strongly to support the amendment of the noble Earl, Lord Halsbury, and indeed the amendment, in principle, of the noble Lord, Lord Howie of Troon. The basic principle is all I should like to endorse. I speak as a Fellow of the Institution of Electronic and Radio Engineers, and many of my friends in past times, particularly when trade union power was riding high in the last Parliament, when they had tremendous difficulties of conscience as to knowing what best to do, steered clear of trade unions, perhaps in many cases when they might have wanted to join them, for fear of the shackling disciplines that we are arguing about at the moment. I do hope that my noble friend will have something positive to say to the noble Earl, Lord Halsbury, and that, if he cannot accept something like these amendments going in now, the Government will think very seriously about this and perhaps bring something forward on Report. I hope that will be the result we shall get.
Lord Underhill: I shall look forward to hearing what my Front Bench have to say on this and I also look forward to hearing the comments of the noble Viscount the Minister. I have considerable sympathy with the points raised by the noble Earl, Lord Halsbury, and by the noble Lord, Lord Howie. However, there are one or two problems involved. First, I take the point of the noble Lord, Lord Howie, that the last thing I want to do, as a person with no professional qualifications at all, is to draw any distinction between people in professional organisations and those whom we term outside the professions as "the ordinary working-class". I think that would be a fatal thing to do.
One can also think of situations where people are members of professional organisations in order to carry out their particular job and are also employees in concerns. I would not wish to see any differentiation between those persons and the rest of the employees in that particular organisation. I think that would be wrong and anti-social. On the other hand, referrng
814
to points which have been made by the previous speakers, I think it would be intolerable that because of membership of a professional organisation and the conditions laid down, they were expected to breach the undertakings they have given to take up that profession on grounds of safety or similar measures. Therefore, I am in a predicament of seeing the point raised by two noble Lords, but of also seeing other important questions upon which I hope that the two Front Benches can help me.
Perhaps I may ask one other question. Is there any instance of a case of this kind being reported to an industrial tribunal, where the tribunal has not taken into consideration the obligation to a person who has joined a professional organisation in order to take up the profession?
Viscount Trenchard: I wonder, even if others may wish to speak to this amendment, whether I could cut in at this stage, because it may be possible that I can give at least some comfort to the noble Earl who raised this question and the noble Lord, Lord Howie. Their sentiments are very much understood and accepted, and I shall certainly not hide behind the problems of putting special cases in Bills. There, obviously, is such a problem and one does not want to do it if it is not necessary.
What I want to say to the noble Earl and to the noble Lord is that, I shall attempt to convince them in a detailed letter that the amendment is not necessary in the Bill as it is written, and in the situation that bears on industrial tribunals. I should like to do that much more fully and in detail and after having taken further detailed advice than I could do this afternoon. But the main areas why we believe that the amendment may be unnecessary are these.
Section 4 of the 1980 Act has the general provision that people should not be unreasonably expelled from a union. That is one provision. The second provision is the one in this subsection on non-membership for a reason of conscience or a deeply-held personal conviction. I believe that, if there were a complete conflict of the man's professional interest with the requirements, at any time, of his union, a tribunal would uphold his case and that it would be perfectly obvious to his employer in advance that that would happen. So I believe that the provision which allows people to leave a union for reasons of conscience, or other deeply-held personal conviction, will to a high degree cover this case.
This is further reinforced by a code of practice, which the Government issued with the authority of Parliament in December 1980, and which makes clear in paragraph 55 that a union should not discipline a member who refuses to take part in industrial action on the ground that to do so
"would involve a breach of a statutory duty or the criminal law, would contravene the member's professional or other code of ethics or would constitute a serious risk to public safety, health or property".
I suppose it could be said that industrial tribunals do not have to take account of that code of practice, but it had general support, and I believe that my advisers will assure me that it is almost impossible for an industrial tribunal not to take note of that code.

815
I am advised on the question of individual cases—and I myself am not familiar with the case—that the case of Partington v. NALGO, which the noble Earl raised, was, in our view, of more importance than the noble Earl seemed to believe. While the principles behind the judgment are complex, the judgment is, in our view, a clear sign that the courts are very ready to protect the position of professional employees who face a conflict of loyalties.
With that general set-out of what I am advised, of what will exist in this Bill and of what already exists in the 1980 Act, or is pursuant from it, perhaps I could rest on the promise of a fuller letter which the noble Earl and the noble Lord could consider. I believe we can convince them that the amendment is unnecessary and that professional men are properly covered.
Lord Mottistone: Would my noble friend care to put a copy of the letter that he will be writing to the noble Earl, Lord Halsbury, and the noble Lord, Lord Howie, in the Official Report, so that we can all see it?
Baroness Seear: In order to get it on the record, may I ask the Minister whether the protection which he thinks is already available for these persons is protection of their jobs, or only protection that they will get compensation? What matters is to be certain that they will not lose their jobs.
Viscount Trenchard: So far as placing a copy of the letter is the Official Report is concerned, I believe that to be possible and provided that I can do it, I certainly will do so. As regards the protection of jobs —and, of course, there are provisions for reinstatement —what I have to say to the noble Baroness, which I think she knows, having studied the Act and these situations, is that there is no absolute protection against an employer, for whatever reason, unfairly dismissing anyone. Therefore, the provisions of the Bill that we are talking about, and the amendments which have been suggested, bear on our ability to cause, to help and to make sure that an industrial tribunal, in carrying out the law in this respect, would react in a way which Parliament regards as desirable, if someone were dismissed. That is the best form of prevention, the only form of prevention, that we know against dismissal for unfair reasons.
Lord George-Brown: With great respect, the Minister is really offering nothing. The amendments proposed clearly ask that where professional men—I agree with the noble Lord, Lord Underhill; I would not myself restrict this to professional men, but we happen to be talking about them at the moment—have a conflict between what they are required to do by their professional qualifications, their professional requirements, and what a trade union insists, or attempts to insist, that they should do, their status, their behaviour, as professional men should take precedence. They should not thereby be disciplined—meaning lose their jobs—because the union expels them for making that choice and the employer then dismisses them, because he has a closed shop arrangement with the union. That is what the amendment is about. What the
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Minister was about was something quite different. He was saying, in such a circumstance, "Yes, but under Section 4 of the Act, this, that and the other"—
Viscount Trenchard: I am sorry, but I wonder whether it would save time if I intervened. The noble Earl's amendment—both the first part and the second part—refers to the circumstances in which a dismissal is considered fair, and not to the interesting questions which the noble Lord is raising, as to whether there are any means of preventing an employer from sacking someone unfairly for this or any other reason. So that in this Bill, and in this amendment—or lack of it—what we are discussing is whether the clear indication that this would be unfair dismissal, with what follows from it, would be adequate to prevent it. But I know of no other way, and certainly this amendment will not achieve an edict over an employer which guarantees that he will not dismiss a man.
Lord George-Brown: I heard that the first time. I do not think the Minister has gained anything by repeating it in virtually the same words. The amendment is seeking to ensure that the professional man cannot be dismissed as a—
Lord McCarthy: Would the noble Lord—
Lord George-Brown: The noble Lord, Lord McCarthy, and the noble Lord, Lord Wedderburn, are such experts. If either of them had ever been a trade union official they would know a little bit more about the subject. This amendment is seeking to ensure that in given circumstances a professional man's professional obligation takes precedence over any obligation which a trade union seeks to lay upon him. I beg your pardon.
Viscount Trenchard: May I—
Lord George-Brown: May I just stay with my argument? I have heard yours twice; just hear mine once, will you? I will read it:
"No employee of a recognised professional engineering institution which requires a code of professional conduct as a condition of membership for professional standing shall be required by any trade union of which he or she is a member to take action in the course of an industrial dispute which is in conflict with the requirements of such professional conduct."
That means, if language means anything, that he cannot be required by the Transport and General Workers' Union, by the National Union of General and Municipal Workers, by COHSE, by NUPE or by anybody else to do something which transgresses his code of—The noble Lord, Lord McCarthy, is a great head shaker. I see that he is now a head nodder. If he just kept his head still he might actually be able to think. It means that no trade union can be able to cause a man to transgress. With great respect to the Minister, it has to follow from that that if the union cannot require him to do it he is free to ignore the union, in which case the employer cannot be required by the union to dismiss him. It has to follow from that, otherwise no language means anything. And with very great respect, that is what this is all about.
I hope the Minister will not be misled by silly talk about letters, and fuller letters, and "things I cannot

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tell you now" and "things my advisers will allow me to put in a letter". Any of us who has ever held office knows all about that silly stuff. The Minister does not need to ask whether he can put it in the official record. He knows he can. Yes, it can always be put in the official record if you want to. The issue here is simply this: if we establish that a union which has a closed shop agreement may not, because legislatively we have provided that it may not, override a man's other obligations, then it follows that the closed shop provisions do not apply. And it follows from that that the man cannot be dismissed.
This is the whole point of the amendment. I am quite sure that the Minister had offered to him, as I had offered to me, that that is the whole point of it. It is establshed by law that if a union's closed shop agreement does not apply, then a man cannot be dismissed because he did not obey it. In my view, the Minister is obfuscating. His advisers may have obfuscated him but they have not obfuscated me. It has nothing to do with whether he gets fairly treated by an industrial tribunal. It has nothing to do with whether he is properly compensated. The only purpose of this amendment and of Lord Howie's amendment is to ensure that if this conflict arises in the case of a closed shop agreement, which is the only instrument under which an employer can sack a man or a woman in this country—it cannot happen in any other country in Western Europe—then the other takes precedence.
Lord Houghton has a devil of a lot more experience of this in the public service and in the trade union movement than the noble Lord, Lord McCarthy, the noble Lord, Lord Wedderburn, the noble Viscount or anybody else who has yet spoken or who is likely to speak. He knows as well as I do that this is what the argument is about. Please do not let us kid ourselves. So long as you override the closed shop provision you have solved the problem. If you do not override the closed shop provision, you have not solved it. A man may be very well treated by an industrial tribunal. He may get thousands of pounds. But you have not solved the problem.
Viscount De L'Isle: In rising to support what the noble Lord, Lord George-Brown, has said, may I take up some words which I think were used by the noble Viscount on the Front Bench: that you cannot prevent an employer from sacking a man. It is perfectly true that you cannot stop paying his wages, but before the 1971 Act it became a matter of common law. The man who was dismissed because he insisted on sticking to his professional standards against trade union pressure had the right to sue his employer for improper dismissal and all the consequences which flowed from it. The concept of fair and unfair dismissal arose out of the Donaldson Report.
This is a new concept and it introduces many new considerations. The point is that it is considered that compensation makes up for dismissal. The noble Lords are shaking their heads, but let me finish. Under the system, dismissal is fair or unfair. Let me read what the Court of Human Rights said:
"A threat of dismissal involving loss of livelihood is a most serious form of compulsion".
It does not say fair dismissal or unfair dismissal. We
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must know from the noble Viscount whether or not, if a professional man's standards are subject to trade union pressure and he is dismissed, he contemplates that that should count as fair dismissal, or unfair dismissal, or dismissal allowing the person affected to sue his employer under the common law.
Lord Wedderburn of Charlton: May I ask the noble Viscount a question for clarification? In referring to the period before 1971, he said—and I agree—that there was the right to sue for dismissal in breach of the contract of employment. Would he also agree with me that it is not a question of getting a job back, because the remedy for breach of contract of employment was and is damages and not an injunction?
Viscount De L'Isle: My Lords, my answer to that is that the damages are not settled under the compensation clause. They are settled by judges and they may be very heavy indeed.
Viscount Trenchard: My Lords, I have obviously encouraged the noble Lord, Lord George-Brown, for whom I have great respect, to say to me rather more times his side of the argument than I have yet said to him. I shall not repeat it. I have made clear that I believe we can set out the full reasons why these amendments are unnecessary. What I do have to say as a point of fact is that the noble Earl's amendments are in relation to the subsection which deals with the situation of the conditions in which a dismissal is fair. They are in subsection (3)(c), concerning the conditions in which, for the purposes of this part of the Bill, a dismissal is considered to be fair; and (c) covers the situation where a ballot is held properly, et cetera. It goes on to subsection (4) where it says that subsection (3) will not apply, and this is where the noble Earl seeks to put his amendment. I do not wish to be technical but those are the facts of the amendment.
The amendment of the noble Lord, Lord Howie of Troon, is different, I agree. He is saying that no closed shop agreement, which would also have to come in this general provision of what the Government are capable of enacting, would not be legal unless it recognised this right. I understand that and I have undertaken to write to both noble Lords. I will put a letter in the Library because apparently I am not allowed to put it in the record at the same time. I understand very well the purpose of the amendment of the noble Lord, Lord Howie of Troon, and I will study it before writing to try to convince him and the noble Earl that there is already as much protection as we can possibly get.
Although this requires an agreement, which would need a certain phrase about professional people, yes that would still further strengthen it—but it does not answer the question of whether the three areas which I did quote are not already quite adequate. In order to try to speed up the procedure, I will undertake to look at this again before Report stage, but I will proceed by the method I have suggested, including placing a copy of the letter in the Library. I hope very much that I shall be able to convince all those noble Lords—and the substance of what they have in mind is very much accepted —that this is in fact taken care of in the 1980 and the 1982 Act.
Lord George-Brown: My Lords, it has not been unusual in past cases for a copy of such a letter to be not only placed in the Library (I was wrong when I said that it should be put in the Record) but also as a matter of courtesy be sent to those other Members of the House who took part in the debate on this particular point. Will the noble Viscount the Minister please do that?
6.14 p.m.
Lord Houghton of Sowerby: My Lords, since my name has been mentioned by my noble friend Lord George-Brown, it is probably not known to your Lordships that it was my nodding and low profile grunts of approval that caused his reference to the value of my opinion. I do not want to leave your Lordships in any doubt about that. I fully agree with my noble friend Lord George-Brown. I think it can be put in very simple terms; that this amendment proposes to put statutory membership of a professional body pad passu as conscientious objection, because it adds that to the section dealing with conscientious objection. Therefore, it would be excluded from the provisions of subsection (3). It is as plain as a pike staff and I do not know why we are going all round the houses about this. What the Minister has to do is to satisfy the movers and the rest of us who are interested in this that there is no need for this special exemption in these circumstances because it will be covered by other means, in which case he has to show that it is not necessary to make it a pari passu exemption from subsection (3), along with conscientious objection. I hope that is a little clearer than it was before.
Lord McCarthy: My Lords, I did not want to speak to this debate and indeed I had agreed not to speak but the noble Lord, Lord Howie of Troon, has asked for the views of this side of the House on this amendment. He stated that we did not give our views last time and since he has put down a similar amendment, I must spend just a few moments saying what our views are. They are unusual, but they are nevertheless welcome, because we agree with the Government. We agree with the Government because we agree with the noble Viscount that we are talking here about the conditions of fair and unfair dismissal. What the amendment wants to do is specify, in effect, an additional eround for fair dismissal. The noble Viscount says that it was already covered in the 1980 Bill. We think that it is covered, and we thought so at the time when the 1980 Bill was before the House. In the lieht of the 1980 Bill, we do not consider that this amendment is required.
Lord Boyd-Carpenter: My Lords, my noble friend indicated that the qualification to receive a copy of the letter providing the argument—which, if he will allow me to say so, he has not yet adduced against the noble Earl's proposition—is participation in the debate. May I suggest to him that that is not the way to expedite proceedings. As I have now participated, I would be grateful to be included in the distribution. Also, I would be grateful if my noble friend will indicate that other noble Lords who take a serious interest in this point can obtain a copy of the letter from him without
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the necessary formality of intervening in the debate. I have to say to my noble friend that although as ever he has gallantly argued, he has left me wholly unconvinced that the noble Earl is wrong. The fact that my noble friend is on this occasion supported by the noble Lord, Lord McCarthy, strengthens my suspicion.
Viscount Trenchard: My Lords, if I may just answer that question, any noble Lord who requires a copy of the letter should kindly let me know and I will give them one.
Lord George-Brown: My Lords, at the risk, I realise, of being a dreadful bore, may I just ask the Minister actually to go through with me where the amendment would go and what the words of the Bill say. The Bill as at present drafted states on page 3, in subsection (4)—is the Minister with me?—that:
"Subsection (3) shall not apply—".
and the Minister relied heavily on subsection (3),
"if the employee genuinely objects on grounds…".
Now, then, after "grounds", says the noble Earl, Lord Halsbury, we should insert "(a)", so that it reads,
"of (a) conscience, or (b) that he is required by statutory provisions…"
and I do not need to read out the rest.
If the law provides that subsection (3) does not apply on grounds of (a) conscience and (b) the overriding nature of the person's professional association requirements, there is no point in us having a letter about what happens under subsection (3) because we will have statutorily provided that it does not apply. May I point that out to the Minister. What the noble Earl is trying to insert, which I hope we will encourage him to insert either tonight or at Report stage, is that there will now be not just one ground on which the employee escapes subsection (3) but that there will now be two; (a) the one in the Bill, which is conscience and (b) the one we are seeking to put in, which is the overriding nature of his professional obligations.
Viscount Trenchard: May I very quickly point out that the words of subsection (3), to which this subsection where the amendment applies is an exception, reads:
" Subject to the following provisions of this section, the dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been fair".
All I would point out is the words, "the dismissal of an employee". What I failed to get him to comprehend is that the amendment bears on the condition of a dismissal.
Lord Hankey: My noble friend Lord George-Brown, I think, slightly misled himself, in that the words after "conscience", "or other deeply held personal conviction", are intended by the noble Earl, Lord Halsbury to stand in the text that he proposes. This does not invalidate the argument; I point it out only to put the record straight.
Lord George-Brown: We used to do that in the Foreign Office but we got to the same result in the end.
Lord Hankey: I think the noble Viscount has made a very strong case for saying that this business is adequately covered by the text of the Bill. I would like to say that you have to think what a lot of trade unionists and employers and other people without much legal experience are going to read this and are going to have to decide what they should do about it. I think it is good to have it laid on the line that this point made by Lord Halsbury is really in the Bill. I believe it makes the position clearer. It protects the position of professional people, which is very desirable in the world we live in. As regards the excellent amendment of the noble Lord, Lord Howie, I would be happy with it if it did not say "engineering"; I think it should apply to everybody.
Lord Wilson of Langside: May I make one short point before the noble Earl and the noble Lord, Lord Howie of Troon, express a view. To some extent this may conflict with what the noble Lord, Lord Hankey, said. Of course, this is an area of the law in which the hallmark since about 1825 has been uncertainty. It is from the uncertainties that most of the difficulties and problems and occasional tragedies have arisen. If anyone had asked before the Taff Vale case whether the Industrial Disputes Act 1906 was necessary, from my reading of the history of the matter, which is not as profound as that of the noble Lords on the Front Bench, all the lawyers, all the Ministers, all the Ministers' advisers would have said that an Act in the terms of the 1906 Trades Disputes Act was quite unnecessary, that it was all provided for, that the law was as those who sought the 1906 Act said, and there was no need for it. The same applies to the Act of 1913 If anyone had asked before the Osborne judgment if the 1913 Trades Disputes Act was necessary, all the lawyers and all the Ministers and their advisers, I imagine, would have said it was not necessary and they would all have been wrong. I maks the point simply because what is being suggested is a letter, in which the advisers will no doubt assist, setting out that these amendments are unnecessary, and that should be looked at with great caution and care. It was, of course, in the Taff Vale railway judgment case of this House and the Osborne judgment of this House that everyone was surprised to find that the law was quite different from what all the lawyers had said.
6.25 p.m.
Lord Wynne-Jones: Like the noble Earl, Lord Halsbury, I have been a member of the Royal Society of Chemistry for many years. I have received in the last few days a mass of information from them about this particular matter which we are discussing. I have been through this with care, and clearly there is a strong case. Before I heard what the noble Viscount had to say, which I found very convincing, looking through the material from the Royal Society of Chemistry some doubts came into my mind about this amendment. Indeed, the doubts arose because of certain legal advice that was given to the Royal Society of Chemistry by their solicitors.
Copies were sent—I have one here—to Fellows of the Royal Society of Chemistry who are Members of your Lordships' House. Reading this, I find that the solicitors' advice was broadly similar to what has been
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said by the noble Viscount. For example, at one point it says:
" In the circumstances envisaged by this letter it is difficult to imagine any tribunal holding that such an expulsion was reasonable, particularly when it is remembered that there is an appeal on any question of law or fact to the employment appeal tribunal, and from there to the Court of Appeal, and ultimately to the House of Lords".
They go on to say:
" If an employee obtains a declaration that he has been unreasonably expelled from his union he can claim compensation under Section 5 of the Employment Act 1980".
The whole tenor of this legal advice is that really the amendment is not necessary, but that if it were to be pressed then certain other things ought to be done. I feel, after listening to this debate—and I think the noble Earl made a very excellent speech in defence of the amendment—I was completely convinced by what the noble Viscount had to say. It seems to me that it would not make sense for us to introduce into a Bill of this sort something which separated the professional people inside a trade union from the others.
My own personal opinion, as a Fellow of the Royal Society of Chemistry and one who has been interested in problems of this sort, is that it is undesirable to make this type of separation specifically inside legislation. I think there is little doubt that, inside any organisation, if a group of professional people go along and say, "We have certain points that we wish to make to the trade union", the trade union would normally listen to them. If a trade union does not listen to them and there is a strike called and they are expelled, then they have a remedy in law. I would have thought it was highly desirable not to go beyond that.
Lord Howie of Troon: I look forward to the letter with eager anticipation. It will be some letter. I have had letters like this before and they have been very convincing. This one will need to be even more convincing than the others. We were talking earlier about how best to disseminate the matter in the famous letter. Perhaps we could get round it by the Minister answering a Written Question, in which case it will go into Hansard and all our problems will be solved and everyone will be able to see how unconvincing it is.
Let me thank noble Lords who have spoken in favour of my amendment, which is not quite the same as that of the noble Earl because it goes a bit further. In response to one comment which was made, I point out that I did say that I had narrowed it to deal with engineers only specifically to highlight the problem. I have no wish that the final shape of the law, when we have all agreed it eventually, should be limited to engineers only. I am perfectly sure that other professional people should be protected in exactly the same way.
I should like to comment on the remark made by my old and valued noble friend Lord Wynne-Jones when he talked about not separating professional people from others. He will recall that in the course of my speech I remarked that some unions have rules which already do this and I cited two of them. If it is possible for them to do it without coming to any harm at all, then it is possible for the rest of them to do it. I am grateful to my noble friend Lord McCarthy for telling me my party's view on this matter.

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It did not surprise me one bit. I expected that he would say exactly what he said, but I really did want him to say it rather than leave me to guess it.
I conclude with the following remark. In my amendment, I am not really interested in whether dismissal is fair or unfair or in whether a person dismissed can be compensated. I wish to set up a situation in which he will not be dismissed at all. I sincerely hope that the letter deals with that matter.
The Earl of Halsbury: The very lively debate that we have had on my amendment justifies the time and trouble that I took in preparing it and putting it before your Lordships' Committee. I think that I ought also to congratulate the Committee on having had a genuine Committee stage debate for the first time in 20 amendments. Possibly the abstention of the Opposition Front Bench contributed notably to this happy state of affairs as we have had no Second Reading speeches during the course of this debate. Of course Second Reading speeches in Committee are part of our procedural hocus-pocus—everybody indulges them when it suits their book and rebukes and criticises everybody else when it does not do so. However, it does contribute notably to the Committee coming alive if we can have Committee stage debates, which I always think are the most interesting parts of your Lordships' procedure.
It has been said that all design is a compromise and that whatever we gain in one dimension we pay for in another. Let me analyse the difference between the approach of the noble Lord, Lord Howie of Troon, and my own approach. The noble Lord has drawn his amendment broader in some respects and narrower in another. In so far as he includes all professional men, he sacrifices my argument based on natural justice about being placed between two stalls, and he runs into the criticism of the noble Lord, Lord Underhill, that we are creating a Brahminical class of professional men. In fact, it is only professional men who get statutory obligations imposed upon them because they are identifiable and recognisable as a class.
Having drawn the amendment more broadly in one respect, the noble Lord, Lord Howie of Troon, has drawn it more narrowly in another by going for the engineers and forgetting all about the others. I have simply gone for those with statutory obligations and I base myself upon the principles of natural justice in appealing to your Lordships' Committee in this amendment.
I am very glad to have had all the support that I have received from such distinguished noble friends on the Cross-Benches as my noble friend Lord Hankey and my noble friend Lord George-Brown, and support from the noble Viscount and the noble Lord, Lord Boyd-Carpenter, on my left. In fact, I do not think that I have had any opposition at all, except from the noble Lord, Lord Wynne-Jones, who has drawn attention to the legal advice given to the Royal Society of Chemistry. Of course, lawyers can give you any advice they please, but the responsibility for taking it is one's own, otherwise there would be endless buck-passing. I just do not accept there would be endless buck-passing. I just do not accept from one point of view that that advice
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goes quite as far as I want it to go.
The conflict between what is in the Bill and what is in the code of practice is an age-old matter of dispute. It is a tactical matter, it is a technical matter and we have all fought this battle at one time or another. We would sooner have in the Bill what a Government draftsman would sooner put in a code of practice because of the technical difficulties involved, and in a Government Bill obviously the Government draftsman gets the last word.
I asked the noble Viscount for a sympathetic approach to what I was trying to do. I consider that I have had that sympathetic approach. He has promised to write to me and to the noble Lord, Lord Howie of Troon, and to publish the answers and to do it in time for the Report stage of the Bill. Therefore, I can now ask your Lordships' leave to withdraw my amendment reserving my position until the Report stage when I shall have had an opportunity to study the noble Lord's letter and very closely study the Hansard report of this debate this afternoon because some very valuable and highly relevant points have been made which I would like to study and get under my belt. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.37 p.m.
Lord McCarthy Lord McCarthy moved Amendment No. 20:
Page 3, line 7, leave out from ("conscience") to ("to") in line 8.
The noble Lord said: I beg to move Amendment No. 20. I cannot promise that this will be a Second Reading speech.
The Earl of Halsbury: Will the noble Lord promise that it will not be a Second Reading speech?
Lord McCarthy: No, I am not making any promises either way because I am never quite certain what they are. It always seems to me that Second Reading speeches are speeches delivered in Committee that you do not like. This speech at least is designed to change the Bill. I should have thought that that is what speeches are designed to do in Committee; they are designed to support amendments designed to change the Bill. This amendment is designed to change the Bill.
We are trying to suggest that the clause should be changed so that at page 3, line 7, we leave out from "conscience" to "to" and in effect we leave out "deeply held personal conviction". What we are trying to do here is what we were trying to do earlier yesterday when we were talking about Clause 1 of the Bill. We are trying to limit the consequences on union membership agreements. We are saying that, under this Bill and under the 1980 Acts, we have a series of qualifications in respect of unfair dismissal legislation so that we would argue it is now almost impossible to enforce union membership agreements. You have to have ballots; you have to have existing members exonerated from this provision; and you have to have a conscience or deeply held personal conviction escape hatch. We are suggesting that the deeply held personal conviction escape hatch is there, in a way, by almost an accident.
In the 1980 debates when we sought to get from the

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Government at that time the reason why they wanted to add to the conscience clause, which I can readily understand, this rather unusual phrase "deeply held person conviction" the reason we were given was, "Of course, that is in the constitution of the Parliamentary Labour Party". With very great respect that strikes me like a schoolboy answer. I repeat, "It is in the constitution of the Parliamentary Labour Party". That does not make it right and it does not make it appropriate. The matter has to be defended on its own grounds. Our submission is that it has not been defended on its own grounds and that on all reasonable grounds," conscience "is what those who wish to qualify union membership agreements wish to protect, and "deeply held personal conviction" is an extraneous and extremely, in practice, bothersome clause.
If one goes to the Oxford English Dictionary—and there is no reason why one should not—and looks up to see what could be the difference between "conscience" and "conviction", the OED tells us that conscience is a moral sense of right or wrong. We accept that it is possible that people could have a moral feeling that they did not want to join a particular trade union, and that is provided in the present Bill. Indeed, it was provided in the 1980 Act and this Bill simply repeats it.
But the Oxford English Dictionary says that a conviction is merely a settled belief, and I think that that is a reasonable distinction—something which one simply has and says one has and can say that one has had for some time. It says nothing about whether it is a moral issue or an issue of right or wrong. An issue of right or wrong, an issue of morals, is conventionally thought of as art issue of conscience. We would ask how the tribunals could apply such a test to deeply-held personal convictions.
During the Committee stage of the 1980 Act, we tried to elicit some information about this. We had a long and interesting discussion at that time about whether a belief that a trade union was supporting the Labour Party could be said to be a settled belief or a deeply-held personal conviction, so that, if for no other reason, one could therefore say that one came within the clause.
I am bound to say that, although we tried to get answers to this, we got no settled answers. We got no settled answers because, indeed, it is a very difficult thing to answer and it is a very awkward clause. Anybody could have a settled belief about anything. Very few cases have been brought under the 1980 Act. I believe,—I may be wrong—that it was said yesterday that no cases have been brought under the 1980 Act, but I may have misremembered that. However, I believe that it was said in another place that one case had been brought under the 1980 Act. We still do not know whether that was brought under the existing employee clause or whether it was brought under the conscience clause, or whether, in fact, what was relied upon was a deeply-held personal conviction.
I do not want to mention them by name, because we have agreed not to mention them, but if we take the three cases, they could all have been covered by being existing employees. As I said to the Committee yesterday, in my experience, an existing employee clause in the form of a registration shop agreement
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would, in fact, cover virtually all the individuals who would need to be covered in a practice of this kind. But the Government have added conscientious reasons. I am saying that they have also added deeply-held personal convictions. I do not understand the reason for it and I did not understand the reason for it then. I should like them to explain it. In the meantime, I beg to move this amendment.
Lord Houghton of Sowerby: I feel very cross indeed at the speech that my noble friend has just made. I strongly oppose this amendment. His supercilious reference to the constitution of the Parliamentary Labour Party makes me more vexed still. Little does he know what we went through in the Parliamentary Labour Party in order to get the conscience clause right. He probably does not recall that the root of the difficulty in the Parliamentary Labour Party were those who claimed exemption from the disciplines of the party on a three-line Whip on conscientious grounds. This arose to a very large extent as regards those who held strong views about defence and also strong views about temperance. There were various causes of conscientious grounds at that time, and I need not remind noble Lords who understand parliamentary procedures of the problem which arises when members of a party decline to support the party, notwithstanding the majority view, because they say that they have a conscientious objection to doing so.
For my noble friend to bring this amendment before the Committee at the present time—on what authority I do not know—is only prolonging a debate on a matter which I thought had been settled, certainly to general satisfaction, in the Employment Act 1980. If my noble friend wants to go back on this, he would have to go back to the discussions in 1974 and 1976, before he arrived here, on the Labour Government's proposals for the conscience clause. I objected then and I object now to relating conscience to religious beliefs.
There are secular consciences as well as religious consciences. Unfortunately, conscience is usually associated with religious belief or religious convictions, because most people get their consciences from religious teaching or from religious guidance. But some people try to rationalise morality and their attitude to life, and think out for themselves and reach a secular conviction about the matter.
We know that conscience is generally related to the moral issues, but what are the moral issues? They are handed down in convention and in religious teaching, and we try to sort them out for guidance through life. Very often we are very perplexed about them when we are young. But my noble friend referred to a deeply-held personal conviction being a settled opinion, as though it had some different and smaller value than a conviction based on conscience. They are both convictions after all. They represent a mind firmly made up on certain issues of principle or morals. That is what we are talking about. It can either be conscience, largely attributable to religious or Christian teaching, or it can be a deeply-held personal conviction based on secular education or a secular upbringing. My upbringing was a mixture of rationalism and Methodism, and perplexing it all was. But out of it I have got, and still retain, some deeply-held personal

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convictions. I shall put them against any conscience that my noble friend possesses, no matter where he got it. At least I thought mine out, I do not know whether he thought his out or, for that matter, whether he has any at all.
But I feel angry about this, because to have it lightly presented to the Committee in the sort of spirit of my noble friend is something for which I cannot really stand. So I have made my position absolutely clear. I sincerely hope that the Committee will not be asked to divide on this amendment, for the sake of the Labour Party, if nothing else.
If the Labour Party is to continue to represent itself as intolerant, as narrow-minded, as a party which is willing to see coercion where liberty and freedom should be exercised, then it stands no chance in the Britain of tomorrow. It really must sort that out because people are going for more democracy, for more freedom, and for more right to make up their minds. In these circumstances, I think that this amendment is a disservice to the Labour Party.
I know that one can talk in scornful tones about the odd man out but Charles Bradlaugh was the odd man out; he refused to take a religious oath as a condition of taking his seat in the House of Commons. He fought it through and killed himself in doing so. That enabled those of us who came after to make an affirmation instead of a religious oath. Mr. Plimsoll was an odd man out. He tortured himself as a Member of Parliament, trying to secure the safeguards for the seamen who went to sea in leaking hulks and lost their lives. He was the only non-unionist ever to have a statue erected by a trade union, and the National Union of Seaman put him up to be honoured for ever. Even Tony Benn was an odd man out; he refused to accept an unwanted and undeserved fate of a peerage by accession and he resisted coming here, much to the poverty of this House and the enrichment of another place. I could go on. Sydney Silverman was another odd man out on the question of capital punishment. Odd men out make history, and sometimes they are honoured only after they are in their graves.
Do not let us be scornful about people who take a stand on principle. It is not always the odd man out. It is very often the conpliant people who can be regarded with scorn and derision because they have not got the guts to stand out and make a bid for something that they regard properly as sacred, or certainly as part of the whole feelings of personal conviction and fulfilment in life. Throw this amendment out. Have nothing to do with it at all.
Viscount St. Davids: May I be heard in support of the noble Lord, Lord Houghton, possibly as an odd man out, also as a former member of the Labour Party? I well remember the debates which he is quoting. I must say I took part in them myself, mischievously perhaps, by saying that the text for the day was, "if thy Nye offend thee, pluck it out".
Viscount De Lisle: I do not want in any way to diminish the effect of what the noble Lord, Lord Houghton, has said. I hope he will not take my support from another point of view. Articles 9 and 10 of the European Convention of Human Rights bear on this. Article 9 says:
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" Everyone has the right to freedom of thought, conscience and religion".
Article 10 says:
" Everyone has the right to freedom of expression. This right should include freedom to hold opinions and to receive and impart information and ideas without interference by public authorities".
I think that that validates what the noble Lord, Lord Houghton, intends the Committee to believe.
6.52 p.m.
Lord Wedderburn of Charlton: My noble friend will reply naturally to this debate. I intervene for only one minute to make two points. The first is to the noble Lord who has just sat down. Articles 9 and 10 as interpreted in the Strasbourg judgment last year do not add to Article 11. We come to that in a later amendment.
I would ask for your Lordships' indulgence to say a few words in respect of my noble friend Lord Houghton. As far as the position of the Labour Party is concerned, one might be concerned about this amendment, deviating from it in precisely the opposite way from that which he understood. It is not to be in any way scornful or discourteous—and I hope he will listen—to suggest that the position of the Labour Party in another place on this Bill was based to a great extent upon reviving the position as it was in 1979.
That is to say, the majority view still thought that the religious objector on conscientious grounds of religious belief was the person who should be exempted for a simple reason. This is the point. No doubt it will be looked at in Hansard. How do you define the conscientious objector in the sense that he obtains compensation when others will not? So far as religious objection is concerned, everybody agrees that it is possible to deal with that in a sensible way in a tribunal. This disagreement in 1976 was to a great extent whether reasonable grounds—which was what the party opposite invented in 1974 and then dropped because it did not work—should be reintroduced, or whether there should be grounds of conscience in a broad sense, or whether it should be restricted to religious belief.
What we say in this amendment is that without accepting it 100 per cent. because there are problems about it, we share, and certainly I for one personally share, Lord Houghton's objection to conscience being identified with religion. I happened to share the noble Lord's position in affirming in your Lordships' House. I accept many of the points he made. It is rather odd that my noble friend and I should be attacked in the speech he gave, because I suspect we have more than usually found ourselves as odd men out in all sorts of places.
The problem is not with conscience quite so much in that respect, although there are difficulties in knowing where it stops. For instance, the noble Lord, Lord Houghton, said that a man with his mind firmly made up based on firm principles or morals. That is what I managed to get down. That to us sounds like conscience. If deeply-held conviction goes further, then it is so open ended that it means that anyone's conviction about anything becomes a right to compensation in a closed shop situation, which is to make closed shops by dismissal inoperable.

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If you want to make closed shops by dismissal inoperable, and I know some noble Lords do, then be courageous, take the nettle in your hand, and pass a law and say that there shall not be dismissal of non-unionists in closed shops, and then invent the remedies you want to have. Do not go about it by putting in phrases about deeply-held personal conviction which are difficult to interpret in court. Convictions about what? How deep, other than conscience? Every time I hear one, I recognise it. I say, vicariously at least, to the noble Lord, Lord Houghton, that I shared many of his sentiments, but they sounded to me like a deeply held conscience. It is not surprising that this House holds a large number of deeply held convictions against being members of trade unions. That is what being in the House of Lords is normally about. Where are the deeply held convictions that go beyond which conscience lawyers can understand? I am glad that the noble and learned Lord the Lord Advocate is with us. Perhaps he can help us on it at a later stage.
If the noble Lord, Lord Houghton, is asking whether this is Labour Party policy, the only argument he might deploy against the amendment is perhaps that it does not go far enough in terms of party policy at the moment, although of course the matter is still under discussion. Even if it be a sin and disadvantage to move a little in the course of discussion, to say perhaps conscience could be understood in court when we thought it could not, we nevertheless still think, reasonable grounds could not, and I think the party opposite has changed its mind on that too because it does not give reasonable grounds a run any more; but deeply held conviction, we say, if it means what it says, allows anybody through the net, through the door. If you really mean that, then say it in the proper way and not in this backhanded way. There is nothing scornful or discourteous about that.
There is the problem of unfair dismissal and the closed shop. Since 1971 when the party opposite introduced unfair dismissal they created a problem. A most important and admirable invention in our law, which we thought of in 1969, and they introduced in 1971, was kept by us in 1974; that is, the law of unfair dismissal. As soon as you have a law of unfair dismissal you have to have either a compromise on the closed shop, draw a line between who is or who is not to be preferred to the majority, or you must say that there shall be no closed shop. If you want to go to British industry and say that deeply held conviction can include anything—and then nothing will be a closed shop—then do it. But the Government are not doing that.
What we say to the Government is do not pretend to your supporters that deeply held conviction is something which will be easy to understand; it is something which lawyers will find impossible to interpret. It would give rise to enormous litigation when the circircumstances are ripe for litigation, and in the recession they are not. If it is ever litigated, it will be difficult. Therefore, we were moving to take out something that we think is unhelpful, goes too far, and we left in conscience without the tag of religion upon it on this occasion. Yes, we did, because when we discussed it, and we discussed it for a long time with our honourable and right honourable friends in another
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place, it seemed that it was worth putting to your Lordships whether the line should be drawn at conscience and not deeply held conviction. That is all there is to it, and I hope that the noble Lord, Lord Houghton, will understand it.
Viscount Trenchard: We have only done I think two amendments this afternoon. There are another 130. I have no right in any way to ask Members not to speak, but I wanted to say quickly at this stage—which will mean that I need not say anything at the end—that it might help your Lordships to know the Government view on this amendment. This was all argued on the 1980 Act, as the noble Lord, Lord Houghton, said so clearly. We attach vital importance to the words which the amendment seeks to delete.
While we are delighted to see the belated support of the party opposite for "conscience", we believe that we must stretch them further than that. Looking up words in dictionaries really does not do you much good. If you look up in the Oxford dictionary the word "pragmatic", once used by a Prime Minister to describe how he would behave, you would find that it says that it means "dogmatic". The interpretation of conscience came up in judgments like the one under the 1974 Act where Arnold J said:
" In very many cases there will not in fact be any distinction between conscience as a factor forbidding, or grounding an objection to, belonging to a trade union, or indeed doing anything else, and religious belief providing that ground. We can conceive, rare though they may be, that there may well be cases in which conscience directs or forbids a certain course of action, be it joining a trade union or anything else, having been brought to that point of conviction by moral or ethical considerations which do not possess a religious content".
There is therfore a belief in some quarters that the word, "conscience", is tied to religion. So we are absolutely determined that these words should be in the Bill and, given what has already been said, I wonder whether, with the amount of work in front of us, the noble Lord wants to press the amendment.
Lord McCarthy: In view of all that has been said and the time of night, I am pleased not to press it.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): Amendment No. 21 has fallen.
Lord Denham: I wonder if I might take the feeling of the Committee? Obviously we must have an adjournment for dinner soon and I am not sure how long the next amendment will take.
Lord McCarthy: The next amendment will not be moved, but I suspect that the one after that will take a very long time, so I think we should adjourn.
Lord Denham: If the amendment after next will be a relatively long time compared with the last two, I should be rather unhappy about that. Perhaps we could take the formal not moving of the amendment first.
[Amendment No. 22 not moved.]
Lord Denham: If I may give an indication to the Committee, I suggest that we return to the Bill at 7.40.

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Accordingly, I beg to move that the House do now resume.
Moved accordingly and, on Question, Motion agreed to.
House resumed.

Forfeiture Bill (formerly Relief from Forfeiture Bill)
7.2 p.m.
Read a third time with the amendments.
Lord Mishcon Lord Mishcon moved the amendment:
In the Title, line 4, leave out ("and") and insert ("; to provide").
The noble Lord said: My Lords, this deals with a very small verbal point in the Long Title. At present, the Long Title reads rather peculiarly, because the part relating to pension and social security benefits appears to be governed by the words "to enable" at the beginning of the third line, whereas it should be governed by another phrase," to provide for as in the first line. As I say, it is a purely verbal point and the amendment does not in any way alter the sense.
On Question, amendment agreed to.
Lord Mishcon: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass—(Lord Mishcon.)
On Question, Bill passed, and returned to the Commons.
Lord Glenarthur: My Lords, I beg to move that the House be now adjourned during pleasure until 7.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.3 until 7.40 p.m.]

Employment Bill
House again in Committee on Clause 2.
The Earl of Halsbury The Earl of Halsbury had given notice of his intention to move Amendment No. 23:
Page 3, line 44, leave out ("were pending before an industrial tribunal") and insert ("had not been finally determined").
Viscount Trenchard: I know that the noble Earl, who is not in the Chamber at the moment, does indeed wish to move the amendment, and is in fact trying to get one piece of information which is of value to him. While we are awaiting his arrival, I can tell the Committee that, as I understand it, his point is whether the words in line 44 on page 3 of the Bill which read,
" were pending before an industrial tribunal",
in fact cover the full course of the proceedings before a tribunal. I see that the noble Earl has now arrived, and so I shall cease attempting to move his amendment for him.
The Earl of Halsbury: I must apologise to your Lordships' Committee for not being in my place at the right time. I miscalculated the length of the dinner break. This is intended to be a fairly simple probing amendment to find out exactly what falls under the scope of the words
" were pending before an industrial tribunal".
Supposing the matter had ceased to pend and had been decided by the industrial tribunal, and supposing an appeal is then launched, is it still pending? Obviously, it cannot be pending before the industrial tribunal because procedures have ceased at that point. So, by way of probing for the meaning of the Bill as drafted, I propose an amendment, which of course I shall not press, to leave out the words:
" were pending before an industrial tribunal",
and insert the words "had not been finally determined", which include the possibility of an appeal. I think that that is all I need say in moving the amendment. I beg to move.
Viscount Trenchard: I have spoken with the noble Earl on this matter and I have told him that at the moment I have still not got 100 per cent. clear the position on the question of an appeal. If it makes him feel any easier—and I apologise for causing him to sprint—I would say that my officials who were due to give me the answer have not returned either—
Lord Boyd-Carpenter: They are not as good sprinters.
Viscount Trenchard: The noble Earl is concerned that the use of the word "pending" gives an impression of something in the future and that therefore the cut-off date for the provision might be early in the tribunal's hearings, or even before them. I can tell him that that is not correct. I can assure the noble Earl quite clearly that a complaint is in fact regarded as pending before an industrial tribunal from the moment that it is lodged until the time when it is finally determined by a tribunal, or withdrawn.
I am informed that there is some doubt as to whether the words "finally determined" cover an appeal and what is the position in relation to compensation and pay. I have asked that we look further into this question, and I shall have to promise the noble Earl yet another letter. In it I shall cover very clearly the position of the appeal and in particular, if the appeal is not covered by the word "finally", what is the retrospective position in relation to compensation and pay if at a later stage an employee wins a case on appeal. I shall write to the noble Earl before the Report stage, so that, should he wish to press the Government on the point, he will be in a position to do so.
The Earl of Halsbury: I think that this shows the value of the Committee stage and of probing amendments to discover the truth about a proposed form of words which is not in fact as precise as one could have wished. Naturally I accept the assurance of the noble Viscount that he will write to me about it in time for me to reserve my position at the Report stage, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.48 p.m.
Viscount Trenchard Viscount Trenchard moved Amendment No. 24:
Page 4, line 6, at end insert—
("(7A) For the purposes of subsections (3)(c) and (6)(c), where votes in a ballot may be cast on more than one day, the ballot shall be treated as held on the last of those days.").
The noble Viscount said: I beg to move Amendment No. 24 and to speak also to Amendments Nos. 38, 39, and 40, which are all part of the same package. Amendment No. 24 is intended to cover the situation, which I mentioned on earlier amendments, where it might not be possible to hold a ballot on only one day for all the employees. The shipping industry raised this point in particular, and we have referred to that industry in previous amendments. Therefore, the first thing that Amendment No. 24 does is to make sure that the ballot can be held on more than one day.
This series of amendments then performs two purposes. The first is, if the ballot is to be held on more than one day, to define which day is the day from which one calculates the five-year period before another ballot would be required if protection is to be maintained. The second purpose is to determine which day shall be the day on which people eligible to vote in the ballot shall be regarded as having been in the service of the employer.
So at this stage, if I may say this, I believe that this relatively non-controversial package could perhaps be accepted by the Committee. The decision on the first purpose is that the last day on which ballots are held shall be the day for calculating the interval for the five-year period, and in the second case of deciding who is entitled to vote, the day shall be decided—and it is called "the qualifying day"—by the person conducting the poll. The day cannot be after the last of the days on which votes are cast and it cannot be so long before that date as to be unreasonable, but it must be decided by the person conducting the ballot. I hope this proves to be a non-controversial amendment in furtherance of the need to have practical arrangements for the periodic ballot. I beg to move.
Lord McCarthy: I think we find this amendment non-controversial. Of course, it recognises the fact that there was not anything very much, either in the 1980 Act or, until this moment, in this Bill—and I take it these provisions will also cover ballots in future UMAs—as to how these ballots are in fact going to be conducted. The Government have at last begun to realise some of the problems in running ballots of this sort. But we still see that there is nothing in either of these pieces of legislation affecting ballots about the joint regulation of ballots or about any examples of independent assessments of results; and, of course, there is still nothing in the clause about what would happen on any appeal or dispute about the results of these ballots. Nevertheless, it is something to see that the Government have begun to realise that you could not have ballots extending over only one day.
The only problem I have about that, and the only question I should like to ask the noble Viscount—and I hope he can assure me—is this. I hope that this is not dealing with the question that we dealt with yesterday about the peculiar problems of the shipping industry, because he said that this would help the shipping industry. Yes, in some ways it would, but
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what was required to help the shipping industry in UMAs, and what I suggest was promised to us last night, would of course go much further than this; and I rather took the impression that the noble Viscount was going to give us a new clause in this Bill to cover that.
Viscount Trenchard: I am sorry if the noble Lord, Lord McCarthy, was expecting more than I have given him, but I believe that this degree of flexibility and the way of determining the ballot day in order to achieve this flexibility will be of value to more than just the shipping industry. There are clearly problems in other areas.
In so far as his general point about the definition of how the ballot will be held is concerned, he is right, of course, that we have put in a short statement in Section 58A(4) which says:
" A ballot under this section shall be so conducted as to secure that, so far as reasonably practicable, all those entitled to vote have an opportunity of voting, and of doing so in secret".
My right honourable friend the Secretary of State hopes that that will indeed prove adequate, bearing in mind that aggrieved employees can appeal to the High Court on ballots being unfairly conducted in any event, so I understand; and, if there is proved to be a need over a period of time to be more specific about ballots, then we shall see. But in terms of this amendment the object is simply to make clear how the ballot days shall be calculated and fixed now that we have decided that the ballot may be held on more than one day.
Lord Boyd-Carpenter: May I ask my noble friend what will be the maximum number of days, under these amendments, over which the ballot could be spread? Have the Government any views on that, or, indeed, do the terms of the amendments limit that? Secondly, would he bear in mind that although the shipping industry is making, in the view of some of us, perhaps rather appropriately, very heavy weather of this, it is probably a more real problem in the airline industry, where members of the staff are dispersed throughout the world, and moving very rapidly, so that indeed on some days, during different hours on those days, they are both sides of the international date line.
Viscount Trenchard: I believe that the number of days would have to be reasonable and that they would have to be reasonably close together; but we have not defined a maximum number of days at this stage. Sometimes, in Committee work of this kind, Members of the Committee use their minds to conjecture all sorts of possibilities, but I cannot think of a good reason as to why the days should go on for more than a reasonable period, and I feel my noble friend and I would probably agree on that.
Lord McCarthy: I am sorry to keep on about this point, and I do not suggest that the Government have indulged in any sharp practice, because, fortunately, I have available last night's Hansard and it is perfectly true that the noble Earl, Lord Gowrie, said at column 747 of yesterday's Hansard:

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" My noble friend Lord Fencers 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".
So the noble Viscount is absolutely within his rights; that is what the noble Earl said and that is what this amendment does. But it was late at night, and I rather gained the impression that, when the Committee agreed, and when the noble Lord, Lord Mottistone, agreed to withdraw his amendment, which of course went far wider, I think the noble Viscount would admit, than anything in this clause, he had the view, and I think many of us had the view, that the Government were indeed going to go much further than this amendment in fact goes to meet their point.
Therefore, I should like to be reassured once again, quite specifically. It is the case, is it, that this amendment, which indeed allows us to have ballots held over more than one day, is the sole amendment which the Government intend to introduce to meet the points made by the noble Lord, Lord Mottistone, yesterday?
Viscount Trenchard: Though Lord Mottistone's amendment did not specifically refer to it, the discussion touched on the question of the number of days on which a ballot could be taken, and we have had the discussion on that amendment. I know that my noble friend Lord Gowrie has in fact followed up, since that discussion, to check, and, if he finds there is anything that he wishes to alter in what he said, I am sure he will do so now or find an opportunity to do o at a later date.
But the Government do not regard this amendment as the answer to Lord Mottistone's point. It was a point that bore upon the answer to Lord Mottistone's point; and I can assure the noble Lord that, in so far as flexibility for holding ballots on different days is concerned, the intentions of the Government are laid out in the Bill before the Committee now, and there are no other intentions of which I am aware. I myself have certainly said that the transition period, not yet announced, of either one or two years of course provides for time to discuss further with industries of every kind the practical operation of the periodic ballot, and in that sense there could be further discussions with the shipping industry, which I think was a point which we both made on that matter last time.
On Question, amendment agreed to.
8 p.m.
Viscount De L'Isle Viscount De L'Isle moved Amendment No. 25:
Page 4, line 6, at end insert—
("() Subsection (3) shall not apply if an industrial tribunal, on the application of an employee to whom subsection (I) applies, decides that the relevant union management agreement has not, or does not allow that employee the right to choose to form or join a union which that employee considers will protect his interests.").
The noble Viscount said: Members of the Committee will agree that we have had some very substantial debates affecting questions of principle. That, I think, is a very good thing. It clarifies many matters which might otherwise have been obscure. The question of the independence of conscience and decision of individuals has become very much a matter subject to debate and discussion. In the debate before the
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adjournment for dinner, the noble Lord, Lord Wedderburn, said, fairly, when talking about the question of conscience, that it was really the outcome of the new concept of fair and unfair dismissal introduced in 1971 by the then Conservative Government.
I accept no responsibility for that measure, and the more I think about it, the more I think its concept mistaken. Not that I do not believe that a man who is dismissed by his employer for reasons which cannot be justified should not have compensation beyond possibly what he might get under ordinary common law. I think we proceeded on the wrong lines because we have introduced between the employer and the worker a third party, the trade union. Also, we have introduced the question of compensation and valuation of conscience. I say this because my amendment accepts the concept of fair and unfair dismissal but I do not accept that I have to bow down in reference to that for the purpose of this debate.
In the decision of the European Court in Webster and Ors, the majority emphasised that the threat of dismissal involving loss of livelihood is a most serious form of compulsion. It is this serious form of compulsion which we are dealing with in this clause. It says in the same judgment that an individual does not enjoy the right to freedom of association if, in reality, the freedom of action or choice which remains available to him is either non-existent or so reduced as to be given no practical value. May I remind the Committee that, in deciding the rights of the three railwaymen under Article 11(1) had been infringed, it is necessary to remember the words of that article. Everyone has the right to freedom of peaceful assembly and to freedom of association with others including the right to form and join unions for the protection of his interests.
I am putting before the Committee that the Government, now they have gone so far as to adopt the judgment of the court, will join with us; because it says that subsection (3) shall not apply if an industrial tribunal decides that the relevant union-management agreement does not allow that employee the right to join or form a union which that employee considers will protect his interests. That is the criterion on which Article 11 is drawn. I submit that the court having declared its opinion on Article 11. it is the duty of this House (and, of course, of the Government) to give effect to that part of Article 11 which offers a choice to the worker to choose to form or join a union which protects his interest. And it is not a third party who should decide that, but the individual; because the convention expresses in terms that everyone has the right. I do not think I need to elaborate. It seems to me to be necessary that this part of the convention, which is perfectly explicit, should be incorporated in this Bill. I beg to move.
Lord Spens: May I add a word to what the noble Viscount has said? I think we are now moving into a situation where deeply held personal convictions may not have been held for very long. We are certainly moving into a situation where unions are becoming much more political and it can be easily—in my mind—apparent to a member of a union subject to a closed shop that that union has started to indulge in activities that that member no longer agrees with. This amend-

837
ment is aimed at trying to protect that member if he decides now that he no longer can support the union in the closed shop because of the new activities which the union is now indulging in.
The Earl of Gowrie: This amendment—my noble friend will correct me if I am misinterpreting him at all or in any way—seems to derive from the conviction that employees in a closed shop should have the right to form or join a union of their choice—
Viscount De L'Isle: It is not my view. It is the view of the convention.
The Earl of Gowrie: I stand corrected. My noble friend was making the point that it was the view of the convention and therefore it should be enshrined in the Bill. The Government, as signatories to the convention, have sympathy with the principles being raised but I think it would be difficult to enshrine them in legislation and I am also not altogether convinced that that would meet some of the points in the convention in a practical way, as I shall argue in a few moments. The effect in our legislation would be that no closed shop agreement could continue to have legal force at all unless the employees covered by it had a right to join any union whatsoever. Again, the realities on the shop floor or in industry would be that all closed-shop agreements would be driven underground—there is no question that they would cease to exist—and the Government do not believe that that would be desirable; indeed, we should be back in some of the difficulties of the 1971 Act which my noble friend very fairly pointed out at the beginning of his speech.
I think it important to note that any employee in a closed shop can join any independent trade union which is prepared to accept him into membership in addition to the union that he is required to join under the closed shop agreement. He cannot, under new Section 58(1) and (2) which merely re-enacts long-standing existing legislation be fairly dismissed for being a member of that union or taking part in its activities at an appropriate time. Dual membership of unions in a closed shop is quite permissible and sometimes occurs. There is also an important difference between an employee in a closed shop being protected if he joins a union other than the closed shop union and his having a right, which my noble friend's amendment implies, to join any trade union. That would oblige trade unions to accept into membership any individual who applied to join. This would be a very radical and a not very practical departure from past practice.
While the law rightly has been invoked in the 1980 Act to prevent unreasonable exclusion from a union of someone who needs to be a member of that union to get a particular job, it has been thought undesirable always in other circumstances for the law to force a member upon an unwilling trade union, given that the unions are voluntary bodies. There is another difficulty which, as an economist of a kind, would worry me very much. It is common ground, I think, that there are at present, compared to our competitor nations, far too many unions in Britain. That is why mergers and union amalgamations have, generally speaking, been welcomed. We have a specific instance in the industrial landscape at the moment of the problems created by two unions in a single industry.
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To encourage employees, as my noble friend's amendment would surely do, to set up new unions or join ones which are not involved in the industry concerned would surely add to that difficulty and also to the complexities of industrial ife. It would present employers with the distraction of more recognition claims, the exhausting job of bargaining with many small unions and the prospect of dealing with increased inter-union rivalry—and I would remind your Lordships that the great majority of strikes in the industrial scene in Britain are often the product of inter-union disputes rather than disputes directly between unions and employers. I think there would also be disruption of agreements between unions as to which union generally recruits in what sector of an industry. These kinds of agreements may not always be universally welcomed, but their usefulness to employers cannot be in doubt and I think that my noble friend's amendment, if adopted, would not be helpful in aiding Britain's economic recovery, or getting us on side with our competitors, which is of course the lodestone of the Government's economic policy. For that reason, if for no other, I would ask your Lordships to reject the amendment.
8.12 p.m.
Lord Wedderburn of Charlton: I think my noble friends and I feel like saying to the noble Earl, "Welcome back, all is forgiven", because at last the Government have acknowledged that there is a problem of multi-unionism and they do not want to enact anything which would increase the problem. We have been trying to impress that on the Government during the last few hours of the debate. Whatever else divides us, we share the conviction of the Government that this amendment certainly would increase the problems of multi-unionism. I cannot quote the noble Earl fully but I am roughly right when I say that we share the view with him that this would mean anyone could join whatever union he wished and it would fragment bargaining arrangements in practice a great deal more. There is also the right of any person not only to join an independent union, which the noble Earl mentioned, but also the right to resign from any union in relation to Section 7 of the 1974 Act, as amended in 1976.
What is particularly important about the debate on this amendment is the position of the developing law in general, which is most germane to the noble Viscount's amendment and also to the Strasbourg judgment. In saying that, I will repeat nothing of the noble Earl's sentiments with which I agree except to say that we agree with him very much that the practical consequences of the amendment would be undesirable. But we were encouraged that noble Lords—most of whom are no longer with us—were before dinner saying that this really must be a Committee stage and not a Second Reading. We agree very much. We want to go through the Bill. Therefore, I shall look forward to reading the speech of the noble Lord, Lord George-Brown, when I can look at it tomorrow dispassionately, as I am sure he would wish.
As to developing law, there is an irony at this time because the Court of Appeal divided in the recent judgement of Cheall v. APEX, the Master of the Rolls, the noble and learned Lord, Lord Denning, declaring

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in effect that the Bridlington arrangements, to prevent multi-unionism escaping too far into British industrial life with dangerous consequences, was contrary to current policy and void; because of exactly the argument the noble Viscount has put forward, Lord Justice Slade rendering a judgment rather difficult to assess, and Lord Justice Donaldson disagreeing and not wishing to venture into what he regarded as political waters. I have a feeling that this matter may come before the Judical Committee of your Lordships' House in their judicial capacity. What a pity it is that the judiciary cannot refer to speeches in your Lordships' Legislative Chamber when they come to see the matter, because I feel that the speech made by the noble Earl just now would be most valuable to them.
The Earl of Gowrie: I am amazed to hear this rather Denning-like sentence.
Lord Wedderburn of Charlton: It was, of course, the noble and learned Lord, Lord Denning, who had his knuckles rapped for referring to a speech of mine in this Chamber in a recent judgment. Noble and learned Lords will not do that. So there is the point about the common law developing. Therefore, what the legislature does at this point is extremely and doubly important; and it is necessary to say the extent to which we feel—and my noble friend Lord McCarthy has told me he joins me in saying this—that the position put from this Front Bench has not been fully understood, and so it must be clearly re-stated in reply to the noble Viscount's amendment.
We say that the case of the three railwaymen in which the United Kingdom was responsible for acts done by British Rail which are in breach of Article 11(l) does not go anything like as far as is proposed by this amendment, or by the Government—and that we repeat. The noble Viscount has read Article 11(1) that everyone has the right to peaceful assembly and association with others, including the right to form and join trade unions for the protection of interest. He did not read subparagraph (2) where it is stated—these are the relevant words to this case—
" No restriction shall be placed on the exercise of these rights other than such as are prescribed by law necessary in a democratic society for the protection of the rights and freedoms of others".
In the railwaymen's case, the matter was naturally discussed by the judges in their judgment in terms that most Continental lawyers understand and indeed British lawyers have come to use these terms—namely, the positive right to associate and the negative right to dissociate. The central issue argued in the railwaymen's case was the extent to which Article 11(1) by providing a positive right also provided what many Continental and some British lawyers know now as the negative right or the right to be a non-unionist.
One thing is absolutely clear in the judgment, which is that it did not come out for the negative right on which such a freedom of choice must be based. I should like to read from page 52 of the 1981 European Human Rights Report. On page 52 the court said:
" A substantial part of the pleadings before the Court was devoted to the question whether Article 11 guarantees not only freedom of association, including the right to form and to join trade unions, in the positive sense, but also, by implication, a
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negative right 'not to be compelled to join an association or a union".
Later they say:
" The Court does not consider it necessary to answer this question on this occasion".
A little later on page 54 they said:
" The Court emphasises once again that, in proceedings originating in an individual application, it has, without losing sight of the general context, to confine its attention as far as possible to the issues raised by the concrete case before it. Accordingly, in the present case it is not called upon to review the closed shop system as such in relation to the Convention or to express an opinion on every consequence or form of compulsion which it may engender; it will limit its examination to the effects of that system on the applicants".
Then the court goes on to recall that some notion of freedom of choice must obviously inhere in the right to associate. Some clear area of choice there must be. On page 54 they also say:
" The situation facing the applicants clearly runs counter to the concept of freedom of association in its negative sense.
" Assuming that Article 11 does not guarantee the negative aspect of that freedom on the same footing as the positive aspect, compulsion to join a particular trade union may not always be contrary to the Convention".
This is a key passage, as I think everyone now agrees, of the judgment:
" However, a threat of dismissal involving loss of livelihood is a most serious form of compulsion and, in the present instance, it was directed against persons engaged by British Rail before the introduction of any obligation to join a particular trade union.
" In the Court's opinion, such a form of compulsion, in the circumstances of the case, strikes at the very substance of the freedom guaranteed by Article 11".
My noble friend Lord McCarthy has advanced to the Committee the view that this judgment is based on existing employees and the right of existing employees not to be imposed upon. The court then goes on, on page 54, to say this—and I do not wish to be unfair to the judgment in any way; I know that noble Lords are following it and I am happy to be asked to read more:
" Another facet of this case concerns the restriction of the applicants' choice as regards the trade unions which they could join of their own volition. An individual does not enjoy the right to freedom of association if in reality the freedom of action or choice which remains available to him is either non-existent or so reduced as to be of no practical value".
Then they say:
" Moreover, notwithstanding its autonomous role…Article 11 must, in the present case, also be considered in the light of Articles 9 and 10".
Then, in a rather longer passage in paragraph 57, they refer to Articles 9 and 10, which are concerned with the protection of freedom of thought, freedom of conscience, freedom of religion and freedom of expression, and they say that are also the purposes of the freedom of association guaranteed by Article 11. Then they say:
" Accordingly it strikes at the very substance of this Article to exert pressure, of the kind applied to the applicants, in order to compel someone to join an association contrary to his convictions".
In this further respect, therefore, the treatment complained of as regards Mr. Young and Mr. Webster constituted an interference with their Article 11 rights. Of course, they there touch on the problem of Mr. James, whose quarrel with the union was wholly industrial, and which the court, I suspect, saw at a very late point. But it really did not fall within this at all.
The Earl of Gowrie: I am grateful to the noble Lord. I followed him most carefully and he has led us through the judgment of the court, in order to show his reasons for rejecting the amendment in the name of my noble friend. But the ringing way in which he reads out this judgment of the court suggests to me that he must implicitly accept it, and he must therefore, by inference, accept that the legislation with which he was very closely associated in 1974 and 1976 was a monstrous violation of the kind of freedoms which my noble friend has spent such a time trying to uphold.
Lord Wedderburn of Charlton: Of course, I do not accept it in those terms. What I say is this, as a matter of history and not just as part of a party battle this late at night. The noble Earl will know that this judgment is not technically binding on the United Kingdom Government. If you regard it as morally binding, you have to search for what the lawyers call ratio decidendi. I join with him and entirely agree that the ratio decidendi is that existing employees should be offered the choice and not made to join the union on pain of dismissal.
That is what I am saying and that was not enacted in 1974, because the noble Earl's party did not put it in, although they had a majority of two to one. They put in what they wanted and they put in objections on reasonable grounds. They did not put in existing employees. So if neither of us foresaw this judgment, we are both to blame. But we can discuss that on another occasion. That would be a nice conversation elsewhere.
The noble Earl has led me to the point which is most important, because, first, I object to the Government's handling of the case in the court. I should say immediately that I should have declared an interest—I apologise to your Lordships—because I was asked to go and present evidence for the Trades Union Congress. I repeat that I went and gave evidence. The court did not allow us to plead and did not allow us to argue principles of law or interpretations. Hard though I tried to make my evidence into pleadings and interpretation, the learned judge was quick enough to stop me before I got into my second sentence. However, I saw the case and, although before dinner it was being suggested in some quarters that to know something about things was to be at a disadvantage, and even to be an expert was positively to expel one from the Chamber, I can only offer my impressions.
One of the things that are important in this case is that the Government did not present the case as one based on conscientious grounds; they did not refer at all to that in their memorial. The Government presented it as unfair under the 1980 Act provisions, and I quite see that they relied very much on existing employees. But then they had the European Commission's report before that, and they thought that that was the way the wind was blowing. But they did not distinguish, either, between the three different types of complaints and did not do what the noble Earl did tonight.
With no disrespect to the Solicitor-General, how I wish that the noble Earl had been in Strasbourg. I quote from a note which I wrote two days after I came back from Strasbourg and recovered. I wrote:
" Neither the Government nor the court seems to be interested in the possibility of dual membership. I wish we could have put it in".
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I wish that the noble Earl had been there. He would have put it in. The court had never heard of dual membership. It was only on the last day that the President understood the fact that members of British unions could contract out of the political levy. So the case was not very satisfactory.
This goes to the noble Viscount's amendment, because he may be saying, and I suspect that he is, "That is all very well, but what about those words' choice 'and' conviction', because the words appear?" My first reply to that is that they are linked to existing employees. He and his advisers may disagree with that. But there is a second point. The court at Strasbourg went hunting after choice on the basis of the natural affinities of lawyers from regions where trade unions are divided ideologically between political colours. It is very hard for me, for the noble Earl or for the noble Viscount to understand the position of the Italian trade unions, because they are divided between communist, Catholic, socialist, social democrat, neo-facist and so on. It is very different and if you have that sort of unionism ideologically, you must allow for choice. Whereas our sort of multi-unions, with the problems which the noble Earl has so well outlined tonight, demands a rather different appreciation and discussion. That was never put to the court.
Here I criticise the Government and this is my first major point against them—I have to have one. The Labour Government put to the Commission and wished to put to the court the argument that, if we had violated paragraph 1 by mistake—and this goes back to the noble Earl's point about our legislation and it is relevant to that as well; I accepted it at the time, but what I am saying is also as relevant—then paragraph 2 was important and must be properly argued. Paragraph 2 states that you must not have restrictions on the right to join trade unions and associations, unless they are proscribed by law, which is necessary in a democratic society for the protection of the rights and freedoms of other people.
I know, almost instinctively, where each of your Lordships will stand on that sentence. All I am saying is that it was to be argued, and the Government's first act in the Strasbourg court case was to withdraw the paragraph 2 defence from the court. Indeed, the court itself and the Commission said that the new Government was not willing to have paragraph 2 argued and, that they withdrew the memorial of the previous administration on the point. The court said that although it would look at the matter independently —and it made a few remarks about paragraph 2—it was not able to comment upon it. It said—and this is later on in the majority major judgment—that it could not deal with the matter properly, because it had not been argued by the Government concerned. Indeed, the Greek judge, who delivered a small addendum on this, very tellingly said:
" The court cannot declare legitimate for the purposes of Article 11(2) a domestic measure which the State itself has no wish to regard as such".
and of course that was the position by the time the Government withdrew the defence.
So we have existing employees as the basis of the Strasbourg judgment, and remarks about choice in the context of existing employees—because it is there

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and you cannot get rid of it from the judgment, in so far as it goes anywhere beyond that at all—a defence which the Government withdrew. I am not a betting man and I do not know what are the odds, but I should like to have a go at the other area beyond existing employees, which are very difficult to define. In a multi-union situation mean something like Bridlington, something like the trade union principles which, after all, the Government have in their closed shop code of practice said that trade unions must have regard to, and which must be the basis of organisations affiliated to the TUC to operate.
When you try to get the courts to understand that as well as the Government understand it, there must be some area of inter-union practice where the choice of the individual has to be put aside. I put it no higher than that for the purposes of the argument. It certainly clearly shows that the Strasbourg judgment does not provide the ammunition which has been used quite wrongly—wrongly in law, wrongly in industrial relations practice and wrongly even in morality in terms of what the trade union movement actually does. The Strasbourg judgment is authority for the points I have suggested and it will be the duty of another administration, if a similar case ever arises, which I hope it will not, to argue paragraph 2 properly and to see what the full judgment of the court at Strasbourg would bring.
Lord Campbell of Alloway: I hope your Lordships will forgive me if I do not follow the noble Lord, Lord Wedderburn, along the lines of the detailed analysis of the Strasbourg judgment. I have read with great care the majority judgment and the minority judgment at least half a dozen times and with the utmost respect I do not accept his analysis. May I leave it at that. It is for noble Lords to form their view about it. But coming to grips with the amendment, the situation surely is that this amendment carries with it the concept that we should outlaw the closed shop as such, without qualification. If that is the case, I wish to say to your Lordships that that is, and must be, a wholly unacceptable suggestion, a wholly unacceptable concept. Although in countries such as Germany I understand that the closed shop is outlawed, it is a totally different regime. In our regime, with our history, with the way that the trade unions have grown and developed, it would be an unwarranted outrage to introduce a provision of this nature. That is why I would reject the amendment and would support the views which have been expressed by my noble friend the Minister on the Front Bench.
Viscount De L'Isle: I do not want to get into a detailed argument about the judgment of the court. I do not accept Lord Wedderburn's remarks about it. I rest upon the fact that we acceded to the European Convention of Human Rights. Under the Labour Government. individual applications were allowed. I argued in the 1980 debates that under the convention the closed shop was not permitted. I still argue that. If we are going to say that we accept the convention but not the judgments, that is one argument. Perhaps the noble Lord would tell us whether he does. If he does not submit to the jurisdiction of the European Court and of the Commission, then we should know. The judgment of the European Court in this matter was
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deliberately narrow. The noble Lord, Lord Wedderburn, said that they narrowed it by saying "assuming". They did not say "We assume". Assuming that the article does not guarantee the negative aspect of that freedom, compulsion to join a particular trade union may not always be necessary to the convention. They narrowed it on the particular point of law which was pleaded before your Lordships.
As to the attitude of the noble Earl, Lord Gowrie, both the Labour Government and their Conservative predecessor argued continuously and strenuously over a very long period that Article II was not violated. They did it on some of the arguments. I am not going to delay your Lordships; I have not brought the Solicitor-General's argument before the court, but some of it was very like that of Lord McCarthy and Lord Wedderburn who were present. The fact is that we have entered into a commitment, like it or not. The noble Lord, Lord Wedderburn, read an extract from a minority judgment or comment by the Greek judge. May I read from the concurring minority judgment of four or five judges, including the French and the German:
" We voted in favour of the operative provisions of the judgment, but the reasons which it contains do not appear to us to reflect properly the scope of freedom of association as guaranteed by Article 11 of the convention".
Later it says:
" In our view, the mere fact of being obliged to give the reasons for one's refusal constitutes a violation of freedom of association…The giving of notice or dismissal—which was a consequence of the system instituted by the law, did not give rise to but simply aggravated the violation. The violation, already constituted by compulsion…is irreconcilable with the freedom of choice that is inherent in freedom of association".
In my opinion, in due course that will become the law when other cases come before it. At least the judges have the same authority, if not superior authority to the noble Lords, to make their own decisions plain. They are judges and we are politicians. I beg the noble Lord to put himself in the position of a member of the Government who has accepted the convention, like it or not. In my view, the convention does not permit the closed shop, as exercised in this country. The convention states the right to join and change trade unions. If that is incompatible with the system as it is now, that system is incompatible with the convention. I shall withdraw my amendment and return to it at Report. The noble Lord cannot have it both ways. He was extremely derisory about the case when we debated it previously. He says he now adopts it. In fact, he has not adopted it; he has adopted those parts of it which suit him and left the others on the dustheap.
Lord Wedderburn of Charlton: Before the noble Viscount resumes his seat, may I say that I am sure we are in accord. The minority judgment which he cited was the judgment of six judges agreeing with the majority but going much further in one direction. The Greek judge made a few remarks which agreed with the majority. So that we remember it, and I hope that the Government pay due attention to it, there was also the dissent of three of the Scandinavian judges, if we include Iceland in that description, which I regard as being brilliant. I hope that the Government will read it carefully. They dissented and thought we

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were not in breach of the convention on any point whatsoever. I am sure that the noble Viscount will want the Government to look at all aspects of the judgment—the mainstream one, the six hard core, and the three dissenting, brilliant minority.
Amendment, by leave, withdrawn.
8.38 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 26:
Page 4, line 18, at end insert ("or to his failure to pay a subscription due to the trade union").
The noble Lord said: This is a very small point and can be moved very quickly. It relates to the question in the context of the Bill which all noble Lords will have seen, and therefore I shall not try to describe it: the question of when a member of a union is at fault. It is true that to some extent what is related in the Bill is being at fault in not being admitted, but many trade union situations involve readmission. Therefore the question of whether he is at fault in any way in not being readmitted may raise the point on the Marshalled List. We took issue with the Government over Section 4(9)(b) of the 1980 Act. They allowed for any event which caused membership to cease as an expulsion. We pointed out to them that in almost every major trade union rule book there is a rule that after so many weeks of non-payment of arrears of subscription the membership lapses, sometimes in two stages: going out of compliance for benefit and then lapsing completely. There are figures about exactly how many weeks this is. One finds that 13 to 26 weeks is the usual kind of period, though I dare not mention the source of that research, since I see that the noble Viscount is going to reply.
We felt that the Government was rather insensitive regarding this issue in the 1908 Act. We do not see why they should be insensitive here. They left the clause in the 1980 Act. They said they thought that tribunals will be sensible about it. This is not a matter which the tribunals can be wholly sensible about without a lead from the legislature. In this very limited situation where the member has the disadvantage of being at fault in not being readmitted, if I may take that as the main case to which the amendment is directed, surely one of the situations in which he should be regarded as being at fault is non-payment of money to the extent of arrears which caused his membership to lapse. In most rule books—and I think in every one I have ever seen—there is a rule saying that it is the responsibility of the member to keep up his subscription. One does not rest entirely on that, but it is there. If it is not a mistake on somebody's part, which can nearly always then be put right, it is perhaps a matter of the individual in a mobile workforce moving from site to site.
It is not just a matter of interest to trade unions. It is also a matter of interest to employers, because the only way in which a mobile workforce can be rescued from trade union chaos in some areas—on construction sites, for example, in some types of work—is where the worker goes from site A to site B. Site A is the Transport and General Workers' Union, and so he joins that. Then he moves to site B. He may take a holiday in between and has perhaps lapsed by
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the time he signs up for another union, which will make the necessary inquiries under the Bridlington arrangements. Many such arrangements would not work unless when the inquiry came through they said, "Yes, he has lapsed," and that is the end of that. If that is the case, and not wishing in any way to disadvantage that sort of arrangement, we hope that the Government would feel able, for the sake of the few workers to whom it would apply, to show willing and to show that social realities of that kind are recognised, in that someone who fails to pay a subscription should be regarded as being at fault rather more than the union.
Lord Kilmarnock: Before the noble Viscount replies, I wonder whether I may seek the advice of the noble Lord, Lord Wedderburn of Charlton. This amendment seems to me to introduce an element of policing the union rule book by statute. I am not going to argue against the amendment on those grounds. Later in the Committee stage I believe there will be areas where public policies should influence the union rule books.
It occurs to me that there is the possibility here of uncertainty, because surely it depends on the rule book whether someone in arrears is or is not a member of the union and continues or does not continue to be a member of the union. I understand that, in some cases, if a person is in arrears, then he loses his benefits but not his membership of the union. In that case, obviously, he could not be fairly dismissed for non-membership. In other cases, in other unions and according to other rule books, it seems to me that he might qualify for fair dismissal. Is there not a danger that this amendment would introduce confusion and bring the law into disrepute?
Lord Wedderburn of Charlton: I do not think there is any risk in this amendment of controlling the union rule book. On the contrary, what I am saying is that, if a trade unionist was reading as carefully as your Lordships do—heaven help him !—a Bill of this kind and came to the point where he said, "I am going to be at fault", he would ask, "Who is going to be at fault if I am not readmitted? Obviously, they will include lapsing I have just been discussing with my noble friend Lord McCarthy the words used in case I get them wrong, because in practice he is much closer to the ground than I am. The words used are "lapping" automatic ceasor",and" automatic termination". These are the phrases which are used. I would chance my arm and say that in every major trade union rule book one will find a period beyond which there is loss of all or some benefits and beyond that a period after which one's membership runs out. That is the structural arrangement.
Those periods differ, and indeed it is the very point of this amendment that failure to pay a subscription leads to a cessation or termination of membership only according to the democratically-decided period of the particular union. It is not to control the rule book; it says that you can have such a rule or you need not have such a rule. It is not even like Section 9(b) of the Government's 1980 Bill, which says that that provision counts as an expulsion, which most trade unionists would resist vigorously. It does not

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control at all. This controls nothing. It only says that, in looking at the matter of fault, the one thing that trade unionists will expect to find is that someone who had run out for arrears, as it is sometimes put, is at fault. All I am asking the Committee to do is to recognise that as a fact of life.
8.45 p.m.
Viscount Trenchard: I am still a fraction puzzled by the case which the noble Lord, Lord Wedderburn of Charlton, sees. I believe that this amendment is unnecessary and, in order to give the reasons for thinking that, I must just go over again with the Committee the situation with which we are dealing under subsection (9), at the end of which the noble Lord wishes to add the sentence in his amendment. Subsection (9) comes into being, and its purpose is to ensure that, in a case where there has been a wrongful expulsion from a union—an unfair expulsion from a union—which under Section 7 has been sub judice (and if I am shortening too much, I know that the noble Lord will correct me, but I do not think I am), we would then reach the situation which is the reason why we want subsection (9) to be included—that is, there is a possibility that, even though the tribunal rules that the expulsion or exclusion from the union was unfair, nevertheless (we know of a number of cases) it might be legally found that the dismissal for failure to be a member of the union was fair. Subsection (9) makes clear that, if the olive branch—if I may call it that—has been offered following the tribunal, and the union has offered membership back to the individual who has been found to have been wrongly expelled by the union, the dismissal would still be allowed to stand if the employee did not accept the olive branch and did not return to the membership from which he had been expelled or excluded unreasonably.
Provided he did accept membership, this question of his fault would not arise. The definition of his fault is intended to cover a situation where, when offered this olive branch after a tribunal, he says, "No, I do not want to be a member." In that situation, an employer would be protected if he had dismissed the individual, and the dismissal would remain fair. What the amendment of the noble Lord, Lord Wedderburn of Charlton, seeks to do is to add specifically to that situation the hypothesis that the individual might say, "Yes, I would like to be a member again and then my dismissal would be unfair—but no, I will not pay my subscription." If he were to say that, it is my advice—and I doubt if the noble Lord would disagree with me—that this would become a simple question of his failing to pay his subscription; a classic situation in which expulsion from a union will almost always be reasonable, as I understand it. If there are other circumstances, those other circumstances may intervene, but there is no question here of impinging on the question of a union member having to pay his subscription.
The noble Lord, in the way in which he explained the purpose of his amendment, mentioned the time point in the rule books. He mentioned that these points vary and that sometimes a large number of weeks could elapse before a union would say, "We have given you enough time to pay your subscription."
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If it is in the noble Lord's mind that we need an instant payment of subscription in this instance, then I believe that this would be impinging on how the rule book should work, and would be suggesting that, if the expelled member accepted the olive branch and went back, a special rule should apply to him as to how quickly he should pay the subscription. That is the only way in which I can see the noble Lord's amendment is necessary.
I hope very much that, on reconsideration, he will agree with me that it is not necessary and that there is no possibility of this amendment—which says it is his fault if he does not rejoin the union when the wrongful expulsion has been ruled upon—being necessary; there is no possible way that that can bring into question the need for union members to pay their subscriptions.
Earl De La Warr: Oh dear! I feel very sad that my noble friend cannot accept this simple amendment. It makes me feel that enormous numbers of man-hours must be spent in the department making absolutely certain that every single suggestion, however simple, must be blocked in some way. I have followed this very carefully and I remember very well the discussion that took place on Clause 4 a couple of years ago in the 1980 Bill. Here is a classic case. Sometimes it is a good idea to give away a little on something. That is not flippant; it is the truth. So far as the noble Viscount's argument is concerned, it got very abstruse considering the simplicity of the case that was originally put up. I think that my noble friend really should say to himself, "Here is a case where the Bill could not possibly suffer if I just for once gave way; if that is what the Opposition wants, perhaps that is what I had better do".
Viscount Trenchard: I wonder if my noble friend has understood what admittedly is perhaps one of the most complicated parts of this clause, because it depends on Clause 7 and what happens there, and then on Clause 9. There is no question of giving away a little. This covers a situation where a wrongful expulsion has been ruled on and as a result of it the union has said, "Come back, my noble friend, into the union". The clause says that if he does not say, yes, then a dismissal that might have been made could still be fair; after the judiciary has ruled in his favour and the union has accepted it and offered him his membership back he says, no, in which case his dismissal would remain fair.
What the amendment adds to that is that not only would it cover the situation where he says, "I will not rejoin the union, even though I have got a ruling in my favour and have been offered membership", but instead of that, because the word is "or", it can be done if he has not paid his subscription. Well, he will not pay his subscription if he has not rejoined the union, because quite clearly he will not be a member, in which case he is liable to dismissal. Whereas if he has rejoined the union the question does not arise. It then becomes a question of the union rule book about his subscription, and if he fails to pay it in accordance with the rules, he is out and the tribunal would uphold that.
Lord Jenkins of Putney: I wonder if the noble Viscount will perhaps consider this situation. The circumstances in which subscriptions lapse and are then recollected are various. On the whole, trade unions are anxious to provide the possibility for maintaining the universality or the 100 per cent. of their membership. Therefore, they are usually ready to bend over backwards in order to ensure that a membership ready to be resumed is resumed on reasonable terms. One knows of many circumstances in which perhaps during the course of a disagreement or dispute arrears will have mounted up, sometimes to £7, £8, £9, £10, nowadays with subscriptions as high as they are, £40 or £50. Under these circumstances, if a member indicates his readiness to return this amount quite often will be commuted; a lump sum payment of perhaps £5 or £10 will be accepted, and the arrears which have accumulated will be commuted. The sum will be paid and the membership will be restored. It seems to me that it is to provide for circumstances of that kind that my noble friend suggests this amendment. I hope that on consideration of what actually happens in the practicality of the situation the noble Viscount will be persuaded by the arguments of his noble friend on the Back Benches and will decide that the amendment proposed by my noble friend should be accepted.
Viscount Trenchard: I really am not trying to be difficult. I do believe I have understood the situation. The noble Lord, Lord Jenkins, now suggests that there should be an obligation, if the man has been wrongfully expelled, that when he is offered his membership back he should pay the arrears of subscription during the period he has been expelled. I do not know whether the noble Lord means that, but I would have thought that that was a rather unreasonable thing to do. If he has been expelled wrongfully, the subscription would become due from the date at which the olive branch is offered and he accepts it, rather than through his fault refuses it. Then comes the question when should it he payable. If you are saying that it should be payable instantly, then you are making a special rule for the payment of subscriptions, when a man rejoins the union, at the time he does it. I do not feel that that would be appropriate in an Act of Parliament.
Lord Wedderburn of Charlton: I can see that the Government are not going to give way, and we want to make progress. Perhaps I can say this. My noble friends and I have been trying to think of the perfect illustration for the noble Viscount. We cannot give him the perfect one. I am grateful to my noble friend Lord Jenkins, because he referred to the kind of case we have in mind. It is not a case where somebody is wrongfully expelled, which the noble Viscount seems to understand my noble friend to say, which he did not. It is the case where the man has left the union, if you like has lapsed for non-payment of arrears under the rule hook. Then there is the question, which Section 4(9)(b) of the 1980 Act allows for, of some argument about wrongful exclusion or a wrongful refusal of admission, and where proceedings are pending under subsection (7), here on page 3, he can be in the good position unless he is at fault. The question then is, when is he at fault.
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Subsection (9) says that he is at fault in the circumstances there set out. We are not quarrelling with those. What we say is that a phrase should be added so that he is at fault where it is attributable to his failure to pay a subscription due to the union. Of course, that can include arrears. I do not know whether the noble Viscount belongs to a club, but if he gets into arrears, I would be surprised if there was not a rule whereby his membership became defective. The noble Viscount is not—I am glad. It is just the same with a union. When he comes forward for readmission they quite often say, "You are in arrears; you lapsed; you had better pay them up". That is normally what happens with most organisations— Pay up your arrears". It is true as my noble friend says that it is sometimes commuted. Indeed, if I may use personal experience, in the Independent Review Committee of the TUC we had just such a case, although it was rather more complex—
Viscount Trenchard: I wonder if the noble Lord would let me intervene for a few seconds?
Lord Wedderburn of Charlton: Yes, if the noble Viscount wishes?
Viscount Trenchard: I think that it may help—at least I hope it will help. The noble Lord has quoted from subsection (9) which begins:
" For the purposes of subsection (7)"—
which is why I went back to it. When we go back to subsection (7) we find that subsection (7)(a), for instance—and it is explained further in (b)—says:
" there was in force a declaration made on a complaint presented by the employee under Section 4 of the Employment Act 1980 (unreasonable exclusion or expulsion from trade union)".
Subsection (9) stems from:
"(unreasonable exclusion or expulsion from trade union)".
Lord Wedderburn of Charlton: It goes on to say, "or (b)".
Viscount Trenchard: Yes, it says:
"or (b) proceedings on such a complaint"—
which is the complaint to which we have just been referring under (a)—
"were pending"—
proceedings on a complaint were pending for exclusion or explusion. It is in those circumstances that I think that the olive branch is certainly in the main a fair analogy of what the Government intend.
Lord Wedderburn of Charlton: I was in my last sentence, but I am grateful to the noble Viscount for proving to me that he does, indeed, understand the Bill. I entirely agree with every word he said. Let us take a simple case—a case where proceedings are pending and the complaint is: "I was improperly excluded". It involves a lapsing and whether that be the only reason does not matter for the moment. That is the complaint and it is pending. The issue arises: Is he at fault through not accepting an offer of readmission? That brings into play subsection (9). Obviously we cannot agree on whether the Bill does that. I believe that it does. I believe that the question

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of fault is relevant. I am very impressed with the fact that noble Lords in many parts of the Chamber have seen that a simple fact of trade union life—the failure to pay subscriptions—ought to be recognised by the law as fault, just as much as the circumstances which the Government have chosen to put in which I have not criticised but could have criticised. The best thing to do is to let the amendment lie on the record as something which we have moved. As the noble Earl, Lord De La Warr, said, it is a small thing. It gives me the opportunity of apologising most humbly to the noble Earl for misdescribing him by name yesterday in a debate. As he said, it is a small thing, but something one should have thought they could have accepted. We shall leave it where it lies.
On Question, amendment negatived.
Viscount Trenchard Viscount Trenchard moved Amendment No. 27:
Page 4, line 25, at end insert—
("(10A) Where the reason, or one of the reasons, for the dismissal of an employee was—

(a) his refusal, or proposed refusal, to comply with a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his failure to become or his ceasing to remain a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments; or

(b) his objection, or proposed objection, (however expressed) to the operation of a provision (whether or not forming part of his contract of employment or in writing) under which, in the event mentioned in paragraph (a), his employer is entitled to deduct one or more sums from the remuneration payable to him in respect of his employment;

that reason shall be treated as falling within subsections (1)(c) and (3)(b).").
The noble Viscount said: In moving the amendment which stands in the name of my noble friend, let me try to explain as shortly as possible, bearing in mind the time, the purpose of this amendment which I hope and believe will be non-controversial. It is to cover those situations where there has in the past been an agreement made with an employee who, for one reason or another, did not want to become a member of a trade union, that he might consider paying the equivalent of his union dues to a charity or even paying his union dues, or an equivalent amount to the union, but not being a member of the union. It appears that, now that we have put the new Bill before Parliament, which includes the provisions under subsection (1)(c), which we discussed at great length and also under (3)(b), the need for this kind of arrangement is perhaps no longer there. Therefore, this clause is to cover a situation that if an agreement, which had either been entered in an employee's contract of employment or in writing in another form. had been made for him to pay these monies to a union or to a charity, it will not be a condition for his fair dismissal if he has refused or objects or proposes to object to continue to make these payments, now that his position is covered, or not covered, under the Act in relation to subsections (1)(c) and (3)(b). I beg to move.
Lord McCarthy: I am afraid that we do not find this a non-controversial issue in the Bill at all. The fact is, as the noble Viscount says, that it was previously —admittedly, in some ways there was a doubtful
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legal situation—thought to be possible to operate an agency shop agreement despite the provisions of the 1980 Bill and despite the provisions of this Bill. Indeed, in the Industrial Relations Act 1971 the previous Conservative Government made particular provisions to see that an agency shop agreement was possible. It is perfectly true that this agency shop agreement was only possible within the context of a registered union. Nevertheless, to us, at least, this is a perfectly acceptable way of dealing with a number of problems which noble Lords have repeatedly said that they are concerned about—namely, the problem of conscientious objection.
It is a way of dealing with the problem of the free-rider. Trade unionists say that they resent the position of the free-rider who is not making a contribution to the running of the union while gaining benefits from the union, and yet this free-rider may have a genuine conscientious objection to being a member of the union. Therefore, trade unions say, "Why cannot he join the union?" The answer is that, if he does not want to join the union, he can pay a subscription or sum to the union which is the equivalent of the union subscription, or, if he does not want to do that, as was provided in particular in the case of the Industrial Relations Act 1971, he could make that payment to a charity.
I do not understand why at this moment in time the Government should want to make that more difficult than it already is. It seems to me that this is one of the ways in which to deal with some of the problems that we have now been discussing for two long days. Why should they want to make it more difficult than it is to operate agency shop agreements? We do not regard this particular amendment as uncontroversial at all.
Viscount Trenchard: I do not think that the amendment has the effect of making any arrangement which may be made with the agreement of both parties difficult or impossible. The new Bill—and we have debated many of the clauses—discusses the areas where a dismissal in a closed shop situation is regarded as fair and the areas where it is regarded as unfair. We are really saying that these have changed; we have discussed them. In the areas where a dismissal would be unfair, the employee's agreement in the past, when he was not protected as he will now be to make a payment in lieu, either to the union or to a charity, is overtaken by the Bill. In that condition he can use, if he wishes, the protection of the new Bill. If in some situations—not in all—the new Bill allows him the protection of not being dismissed in certain circumstances, without it being unfair, then the fact that there was an agreement previously to pay an amount should not take precedence over the new law when properly enacted. Therefore, I beg to move.
Lord McCarthy: I am still trying to understand what the noble Viscount says and I hope that he will bear with me. He is not saying that in some way this Bill protects people who might want to operate agency shops. He is not saying that this Bill, except in respect of the clause that he is placing before us at this moment, in itself would make agency shops unlawful. As I understand him, he is saying that in order to be sure

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that agency shops are unlawful and come within the provisions of this Bill, he needs to have this amendment.
Therefore, he is proposing to go further in making trade union membership and union membership agreements outside the law. That is not an uncontroversial thing to do; it is an extremely controversial thing to do, because at the last minute the Government are taking away one of the best defences for conscientious objection. They are taking away one of the best ways of seeking to reconcile the position of free riders and what trade unionists feel about free riders, with the perfectly genuine feelings that some people have that they want conscientiously to object to trade union membership. As my noble friend Lord Oram said yesterday, this is a genuine way of sorting out the sheep from the goats. It is one way of finding out who really have conscientious objections, and the Government want to take it away. If they cannot give a better reason than this, we shall divide on this amendment.
Viscount Trenchard: Perhaps I am not being clear, but I want to make it very clear that this amendment does not make a charity option or a payment unlawful within an approved closed shop situation. Therefore, the noble Lord, Lord McCarthy, is not correct in saying that we are effectively outlawing—I think that he used words to that effect—this practice. I have deliberately not used his term "agency shops", which I think is a wide and sometimes argued description. We are dealing with all the agreements that may have been made in the past and we are altering them only if an employee wishes to see them altered in an area where the new law gives him a protection. But where it does not give him a protection, where a closed shop has been legally approved for the purpose of this clause, then any number of agreements to pay in lieu would still be possible if the trade unions and the management concerned were to adopt the kind of flexible approach to which I know the noble Lord has subscribed. So, with that further explanation, perhaps I could once more try to move this amendment.
Lord Jenkins of Putney: May I ask the noble Viscount to clarify the situation further? It is rather complex. Let us assume that an agreement has been reached under which an employee will agree to make a payment to a charity of some organisation, some other body, in lieu of paying a union subscription. Let us suppose then he fails to continue that subscription to the charity. Will the noble Viscount tell us—and I am not clear on this—precisely the effect of his amendment in those circumstances?
Viscount Trenchard: It depends whether he is an employee in an approved closed shop within the meaning of the Act, in which case if he does not wish to be a member of the union he has, under the various provisions, to make out his case for it; but, if his case does not fit, then it would be an option for him to continue, if the union agree, to pay a payment in lieu of membership. If indeed this employee is outside an approved closed shop, or completeely excluded from the need to be a member, then in those circumstances he need not adhere to paying these
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subscriptions. If he does not adhere to paying those subscriptions in that situation, a dismissal would be unfair.
Lord Wedderburn of Charlton: Further to the point the noble Viscount has clearly put to us, we now realise the division between us and the Government on this much more clearly. The point is that the agreement made, freely entered into outside a closed shop, to pay money to a charity in some agency arrangement outside a closed shop, if anyone after this Act decides to welsh on that then his dismissal is unfair irrespective of unreasonableness. If it was simply a good reason for dismissal so long as the employer acted reasonably in dismissing, that would be one thing, but it comes within 58(1)(c) and therefore the mere fact of refusing, followed by the dismissal, end of the case, unfair. That I should have thought is most unreasonable. If the Government had gone half way towards unfair dismissal I could see the point. To go the whole way on these amendments is much more extreme than I had ever realised.
Viscount Trenchard: I believe we have gone half way and we are giving employees their full rights under the new Act. We wish to make clear that an employee who has entered into an arrangement in the past when he did not have the protection of this Act cannot be dismissed fairly if he does not wish to continue it. Outside a closed shop why should an employee have to make a charity payment. The purpose of our amendment is to make sure that he does not have to in a situation outside the closed shop.
Lord McCarthy: This answer is not acceptable. The noble Viscount is seeking to narrow the area of union membership agreements. He is doing it late at night with a recent amendment, and we must divide the Committee.
9.18 p.m.
On Question, Whether the said amendment (No. 27) shall be agreed to?
Their Lordships divided: Contents, 67; Non-Contents, 26.
Resolved in the affirmative, and amendment agreed to accordingly.
9.26 p.m.
Lord Spens Lord Spens moved Amendment No. 28:
Page 4, line 25, at end insert—
("() No union membership agreement may be cited in any proceedings before an industrial tribunal or a court unless the agreement is in written form and incorporated in the contract of employment of every employee to whom it is alleged to apply.").
The noble Lord said: My noble colleague has asked me to introduce the amendment for him, and I shall be brief about it. I want to say first of all that I detest closed shops, and I am only sorry that Her Majesty's Government have not seen fit to abolish them or make them illegal under the Bill. But the fact is that they have not, and so we want to do what we can to make certain that any employee who finds himself involved in a dismissal under a closed shop arrangement is absolutely aware of the conditions of the union membership agreement under which he is being dismissed. The amendment speaks for itself. We want to make sure that the details of a union membership agreement are in written form and are incorporated into the employee's contract of employment.
If your Lordships cast your eyes to the amendment that we have just passed, Amendment No. 27, you will see what I mean. Both paragraphs in the amendment refer to a contract of employment whether or not in writing, and that kind of thing. Obviously, there is doubt at the moment as to what the union membership agreements involve, and we want to make quite sure that every employee is absolutely aware of to what he is to be subjected. I beg to move.
The Earl of Gowrie: As we would expect of him, the noble Lord, Lord Spens, gave a ringing denunciation of the whole principle of the closed shop, and
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undoubtedly analysed from a certain distance, the principle is, I think, a distasteful one. Nevertheless, it has always been the Government's view that reforms of the industrial relations system in this country should proceed with the grain of our industrial relations system and history, rather than against it. If that is a somewhat lofty or philosophical position, I would add that it would also seem to us sensible not to enact legislation which it is quite clear both unions and managers, or employers and workers, would collude together to evade. Therefore, we wish primarily to try to protect individuals from the abuses which can arise through our industrial relations system, which is a product of our industrial relations history, rather than turn upside down a series of freely-entered-into agreements between employers and unions, which in any case I think would be extremely difficult to do.
It seems to me that in some interesting ways the noble Lord and his friends are very continental, rather that British, in their thinking about law, but I just throw that out as a footnote and we might argue it another time.
This particular amendment would provide that in cases of alleged unfair dismissal for not being a union member in a closed shop there would be no protection against the unfair dismissal claim unless the closed shop agreement was in written form and was incorporated into every employee's contract of employment. Put that way, it sounds sensible enough; but again, the grain of our industrial relations system in this country is that there is no requirement to make written contracts of employment, and nor, unless they are specifically so stated in writing and in a contract, are such employment arrangements regarded as legally enforceable. It would seem to us a mistake to formalise one particular kind of collective agreement under our open and free system—that is to say, closed shop agreements—in a context where you are not formalising other kinds of agreement. Surely it would be wrong to single out closed shop agreements for this kind of special treatment, principally because we do not in fact think that to do so would have any very beneficial effect in practice.
I think, again at the risk of going into lofty areas of principle, if one looks at British reforming history one sees that the reforms which have been most effective and the reforms which have stuck have been the reforms which have gone with the grain of our system and our practice in this country, rather than reforms which have been prescriptive as such. Also, in this Bill we do not aim to surround the closed shop with so many obstacles as to make it entirely unenforceable or unworkable. This is not a burrowing Bill designed to undermine the ground upon which UMAs are freely agreed between unions and employers. This is a Bill, as I said at a previous stage of this Committee, which is designed to protect individuals who are caught between the big battalions—and this we effectively do. We proceed step by step, abuse by abuse. Where noble Lords can show us abuses, we try to proceed against them. Surely that is the British and empirical way to proceed, and I hope that the noble Lord will at least share that philosophy of ours.
Lord McCarthy: The noble Earl comes back, and not only does he come back but he agrees with us. The

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only trouble is that he still talks about step by step, and so we have visions of the Secretary of State in another place and his seven-league boots. It is because of that, I am afraid, that we have to say why we agree with him in rejecting this amendment, because with great respect I do not think that even he has the full horror of this.
The fact is that what has come to be wrong with the closed shop is that it has become increasingly formalised. When I looked at the closed shop 20 years ago, the closed shop was four-fifths informal—that is, formal collective agreements, whether or not in contracts of employment, were very much the exception to the rule—and very largely because the closed shop was informal the closed shop was operated in a very civilised way. Nobody made distinctions as to conscientious objections or deeply-held personal convictions; nobody asked about ballots; nobody even worried very much about whether or not people were existing employees. They operated the closed shop in an informal and civilised way, and for the most part they waited until they had 100 per cent. membership without a union membership agreement, although they did not call it that—voluntary union membership—and then they went and registered the fact.
That was by far the most civilised way to operate the closed shop; and because of unfair dismissal—I am not against the introduction of unfair dismissal, but because of it—we have had to face this very difficult problem, which we have been talking about in the last few days, about the precise circumstances in which we are going to make union membership a fair or an unfair practice. Most of the problems about the closed shop, including those unfortunate dinner ladies, came about because of the formalisation of the practice; and the proposal in this amendment is that we should go on and formalise it entirely and completely and say that you could not have a closed shop until it was in everybodys' contract of employment. What problems we had as a result of the decision in the "Ferrybridge Six" case when the Trades Union Congress had to write to member-unions saying "For goodness' sake, make sure that your closed shop is watertight" until, in the 1976 Act, we fortunately managed to get something in about a practice which enabled us to go back a little to informality. This should make us realise that further movement towards the kind of contractual formalisation which this amendment suggests would be no good for the trade unions and very bad for the dissidents and oddballs and people who wanted to contract out.
Viscount De L'Isle: Seldom have I heard two more conservative speeches from noble Lords on either side of the Committee. In many ways I agree with many of the comments made by noble Lord, Lord McCarthy. We must face the facts as they are. Trade unions have become more powerful and, in relation, the workers have become weaker. In many other spheres of life, we have insisted that ordinary people should be fully informed about this their rights and obligations. This is an important right and obligation and, as things exist now, there is no reason why the worker should not have the terms of his contract explained to him and in his possession.
The noble Earl, Lord Gowrie is, I think, a Scotsman. I am an Englishman. I do not mind whether I am British or not. The sentiments that he enunciated
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were not a philosophy; they were an expression of the feeling that everything is for the best in the best of all worlds and let us make changes as little as possible. He had no feeling of justice. None at all!I must say that in all his efforts and persuasiveness, he has shown none throughout the series of debates. He has been invited to take part of it and he did so extremely plausibly. If I am a fundamentalist, then I am certainly one on principle. I, like the noble Lord opposite, have a conscience—perhaps a different one; maybe more elastic, but I have a principle and it is a principle of freedom. I doubt whether the noble Earl, Lord Gowrie, has it. He has not shown it but perhaps one day he will.
Lord Boyd-Carpenter: May I follow something which my noble friend Lord Gowrie said which interested me a great deal? Everything he says interests me a great deal. He expounded with considerable eloquence the philosophy of the step-by-step approach to the problem of the closed shop. I do not want to argue with him about that. On that he may be right. What I should like to ask is this. In what direction are those steps going to be directed Was he telling us in careful language, that the Government policy was to abolish the closed shop, as many of our European friends have done, but that as a matter of tactics or of tact, they wanted to do it by instalments? Or was he merely saying that they wish to deal with the various evils that the closed shop generates ad hoc, to deal with grievances but to leave the structure intact?
It is too important a matter to be left with any uncertainty. One must say in fairness to the Benches opposite that there is no doubt about their position. They are in favour of the closed shop. The noble Lord, Lord McCarthy, if he can bear it, will remember that I quoted on Second Reading his own words about it, which summarise, I think, the attitude of the party opposite to the closed shop. The closed shop, he wrote,
"is an important and sometimes essential device which adds considerably to the power of the unions to coerce and restrict the freedom of action of both employers and employees".
In other words, according to the noble Lord, Lord McCarthy, who is the authority of the party opposite on this matter, the closed shop is, among other things, in their view, a device for coercing employees. One could hardly have found words which gave greater support to the point of view of the noble and gallant Viscount beside me. But, as I say, my purpose in rising is to ask my noble friend Lord Gowrie to elucidate a little the step by step argument: where and to what goal are the Government's steps directed?
9.41 p.m.
The Earl of Gowrie: I am grateful to my noble friend for trying to draw me out on this, because it gives me a chance not only to answer him but to clarify some points made by my noble and gallant friend. I do not think this is a question of poverty of conscience —certainly I hope not—or of disregard for freedom. It is, I think—and I apply the word "empirical"—an attempt to recognise that the best reforms proceed from some clarity of perspective on the situation as it is and some clarity of perspective of what the

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abuses or evils in a situation may be, and to try to correct them. One tries to correct them as they occur.
The situation is that in a free society—and it was my noble and gallant friend who used the word "freedom" —groups of employees are free to group together and they are free to enter into agreements with their employers. If one prescribes in too much detail the ways in which they can make arrangements with their employers—which was an experience the Conservative Government ran into at the time of the 1971 Act—and if this is too prescriptive and too detailed, the net result will be that union-membership agreements are driven underground and where union-membership agreements are, as it were, working on an "old boy" net and are driven undergound, there is a very grave prospect that abuses against individuals are not correctable and that the law will not easily be applied to try to correct them.
As I see it, the purpose of our endeavours in the field of the closed shop is to say: "We do not like this kind of arrangement in principle but to outlaw it as a matter of principle will drive it underground. Its being driven underground will not guarantee any protection for the individuals who may suffer under it. We would rather therefore try, in vulgar language, to get it to "clean up its act" and to try to protect individuals who suffer as a result of it."
I really think that if this kind of amendment were accepted we would find all sorts of subterranean agreements taking place and our, in my view, worthy efforts to protect individuals would be as nothing. Freedom is a double-edged sword, as I freely admit, and it is possible under our legal system, for employers and unions to make agreements or to duck out of prescriptive legislation. That was the experience we found in 1971 and that is why we are preparing our ground much more carefully step by step as we go along. Perhpas I might say finally to my noble friend that there is nothing threatening in this. There is no question of hinting at dark steps to come. It is really more a matter of trying to identify clear abuses on our industrial landscape and to clear them away as we find them and as they occur.
Baroness Seear: Surely, the last thing one wants to do is to prolong the debate at this time of night. But if I may, I should like very briefly to say something which is perhaps in support of what I understand the noble Earl, Lord Gowrie, to be saying and against the step-by-step interpretation which I think some people feel implies that there is a plan—of course, I have no knowledge of what plan the Government may have—and that somebody knows precisely where we have got to be by the year 2000 and that we are reaching that point step by step. This seems to me to be an appalling approach to any development in industrial relations and not in the least to be encouraged by anyone who wants better industrial relations in this country.
Surely, industrial relations do not exist in a vacuum. They are influenced all the time by social and economic developments outside, and by the shifts of power inside industry and between forces in industry and outside. The kind of development that we are going to see in industrial relations, and where we want to go,
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will depend very much on developments outside; and nobody can tell what those will be. Therefore, it is not an absence of principle; it is an approach to the whole way in which society develops that is implied in saying that we look at the present situation, we try to improve upon it as it stands, we watch, we observe, and, as things develop, then we make further adjustments to get a better and healthier state than we have at the present time.
Lord Campbell of Alloway: Surely, to accept an amendment along these lines involves entering upon a sort of collision course with the trades union movement; and for what conceivable good or purpose? Why should this be necessary, when there is no individual interest that is threatened, there is no individual interest that is at stake, or that needs protection, and when there really is no individual who is put to the hazard of injustice? This is merely an attempt to "take on" the trade unions, which is one thing that I, as an individual, would never support.
Lord Hankey: Without lengthening this debate, perhaps I may say a word, because I warmly agree with my noble friend Lord Spens. Looking at this—and I am not sorry to have studied this question in various parts of the Continent—the vagueness of our industrial agreements leads to a great deal of trouble. If the texts were more clearly established, and people knew exactly what their rights were, there would not, as the noble Earl has said, be more opportunity for minor petty dominations in various ways. I think that there would be greater clarity of what people's rights were and what was expected of them. I believe that this is a serious weakness in our present system and I see nothing to be proud of about it.
British industrial relations have been a scandal for years and they are almost universally known as die englische Krankheit, or la maladie anglaise. We have nothing very much to be proud of. I share the desire of the noble Baroness, Lady Seear, to see reforms got on with and I believe personally—I admit that it is a matter of opinion—that, if these agreements were written down and were clearly delineated, it would make it harder for people on either side of industry to stretch points to the disadvantage of employers or employees. I am not in the least being anti-union in this matter. I just want better industrial relations.
There is one very important point. When these industrial troubles come before industrial tribunals—and this point occurs constantly in this legislation—I do not see how the tribunals can be sure what are the agreements which they are supposed to be applying, or judging the fairness or unfairness of, if they are not written down. You can get various versions of what the agreements are. In Britain, the whole situation is too vague and it would be a good thing to make it more precise, so I support the amendment.
Lord Spens: I am most surprised at the attitude, both of Her Majesty's Government and of the Opposition on this amendment, and particularly of the Opposition, because it was in the 1975 and 1978 Employment Protection Acts, which I think were almost the baby of the noble Lord, Lord McCarthy, that it was made compulsory for every employer to give a written

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contract of employment to every one of his employees. That is there. So why should not that contract of employment include what is the most important element from the point of view of an employee?— namely, the details of any union management agreement which he probably has no idea about but which has been entered into by his employer and by his union, probably without any consultation with him. So he is going to take up a job without any knowledge of what is really involved. That is something which in these enlightened days we ought not to allow to continue.
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It is all very well to say that it is going to upset the unions. Why should it upset the unions? What are they so frightened about? If their union management agreements are so glorious, why are they worried about putting them down in writing for everyone to see? I feel that this is a nonsense. On the other hand, we have not got sufficient support to press the amendment. Therefore I beg leave to withdraw the amendment, but I reserve the right to bring it back at Report.
Amendment, by leave, withdrawn.
[Amendment No. 29 not moved.]
The Deputy Chairman of Committees (Earl Cathcart): In calling Amendment No. 30, I should advise your Lordships that, if this amendment is agreed to, I cannot call Amendments Nos. 31 to 47.
9.53 p.m.
Lord Howie of Troon Lord Howie of Troon moved Amendment No. 30:
Page 4, line 30, leave out from beginning to end of line 33 on page 5 and insert—
("58A.—(1) Subject to the following provisions of this section:

(a) a union membership agreement that came into force on or before 14th August 1980 in relation to the employees of any class of an employer shall be taken for the purposes of section 58(3)(c) to have been approved in relation to them;

(b) a union membership agreement that came into force after 14th August 1980 in relation to the employees of any class of an employer shall be taken for the purposes of section 58(3)(c) to have been approved in relation to them if a ballot has been held on the question whether the agreement should apply in relation to them and not less than 80 per cent. of those entitled to vote voted in favour of the agreement's application.").

The noble Lord said: In moving Amendment No. 30, with the leave of the Committee, I shall speak also to Amendment No. 37. I believe that has the agreement of the noble Lord, Lord Spens, who has also put his name to Amendment No. 37. Earlier today, the noble Viscount, Lord Trenchard, remarked that the Bill was just about right. I reflect that "just about right" has almost exactly the same meaning as not quite wrong.
Viscount Trenchard: Could I make it clear that I was quoting the Director-General of the CBI, who feels that the Bill is now just about right.
Lord Howie of Troon: The noble Viscount is entirely correct. That had slipped my memory. My point nevertheless remains, though the noble Viscount rightly puts the blame on to the CBI rather than shouldering it himself. What the Minister did say was that in matters of this kind he wanted there to be the least disturbance to existing good relations. I would agree with him, and I am sure that he will not try to blame that on the CBI. In a case of this nature there is the least possible disturbance if matters are left as they are.
The purpose of my amendments is to leave the 1980 Act in operation just as it is. These amendments were encouraged by the Chemical Industries Association, an industry where labour relations are good and an industry where people want these relationships to be disturbed as little as possible. The objective is to retain the present position. Nothing has happened since the passing of the 1980 Act to justify the kind of changes to existing closed shop arrangements which the Government are suggesting. I do not think there is any reason to disturb closed shop agreements which are already in operation and which are working reasonably well, with the agreement of the employers and of the employees who are involved in them. The least disturbance in this case would be to leave matters entirely alone.
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There is one other point I wish to make. We heard no little discussion earlier today on the European Court of Human Rights. I have no intention of going in any great detail into the judgment of that court. I will make only one point in relation to it. As I recall, the Government have stated more than once that had the 1980 Act been in operation, the melancholy events which led to the Strasbourg decision would never have happened, and now that the 1980 Act is in operation, if I am right, there is little prospect of their recurring. The Government seem to have dealt—to a large part, at any rate—with the problem which took the previous Government to the European Court. It would seem unreasonable to tamper with a situation which has not yet been fully tested.
I have a number of amendments coming later which go further into this matter. They deal with situations where there might be some dissatisfaction. Amendments Nos. 30 and 37 leave things alone because there is no dissatisfaction, but in later amendments we will come to deal with cases where there is some dissatisfaction. I hope that the Government will see some sense in what I have been saying and will modify the view they have taken hitherto.
The Earl of Gowrie: Perhaps the noble Lord, Lord Howie of Troon, will correct me if I am wrong in understanding that we are speaking to Amendment No. 30 and to Amendments Nos. 41, 45 and 46?
Lord Howie of Troon: Not really. I was speaking to this amendment and Amendment No. 37.
The Earl of Gowrie: I beg the noble Lord's pardon. So I should speak to this amendment and to Amendment No. 37?
Lord Howie of Troon: That is correct.
The Earl of Gowrie: We are dealing here with what is commonly referred to as a trigger ballot, that is one which does not require ballots to be held unless they are requested by a percentage of the employees concerned.
Lord Howie of Troon: Would it help the Committee if we did speak to the other amendments now?
The Earl of Gowrie: It would certainly help me.
Lord Howie of Troon: It was not my intention but I would be glad to do so. Amendments Nos. 41, 45 and 46, which are the other amendments down in my name, are, as the noble Earl was about to say, the trigger amendments. The point about these amendments is that they allow employees, where there is dissatisfaction and where they see a need, to demand a ballot rather than have the ballot in the hands of either the employers or the trade unions. This seems to me to be an elementary matter of natural justice to which we should turn our attention.

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In the course of these amendments I have set a trigger at 15 per cent. That is an interesting figure. If noble Lords will throw their minds back to the debate we had on the amendment moved by my noble friend Lord Jacques earlier today, he proposed a figure of 10 per cent. In the course of that debate it was remarked that in another place a Member of the Social Democratic Party had proposed a trigger of 20 per cent. In the spirit of compromise for which I am widely known, my trigger comes midway between that of my noble friend—which was thought to be too low—and that of the Social Democratic Party—which was thought to be too high. Therefore, I suspect it will command the highest possible support among your Lordships.
The other thing this little group of amendments does is reduce the majorities necessary in these ballots. Noble Lords whose memories are long will recall that in the Second Reading debate I said that the majorities which the Government were demanding were absurdly high. I adhere to that and I think the Marshalled List indicates that there is a considerable number of Members who agree with me, though they might disagree with the figures I have chosen.
I have said that the majority should be 50 per cent. of the electorate or 55 per cent. of those who vote. I chose 50 per cent. because it is a commonly used majority figure. There are arguments for all the others as well, but this is the most widely used majority figure. But I looked at it carefully, and instead of taking merely 50 per cent. of the total electorate at all times, I realised that if 100 per cent. of the electorate voted, the 50 per cent. demand which I had thought of putting down would be very narrow; it could be 501/2 per cent. to 49½ per cent. I would regard that as very marginal in a case like this. So what I said was that two conditions should be fulfilled. First, it should be 55 per cent, of those who voted, but, in addition to that 50 per cent. of those available to vote, whether they voted or not.
There is one other point which I wish to make, and the last one, noble Lords will be glad to hear. In the course of the earlier debate, the noble Lords in the Social Democratic Party drew attention to the fact that my noble friend's amendment had no time limit on it. Well, mine has, and the time limit is five years. As noble Lords will see, I have gone to great lengths in drafting my amendment to seek the widest area of possible agreement among members of the Committee.
The Earl of Gowrie: I am grateful to the noble Lord, Lord Howie of Troon, for gathering the group of amendments together in such a way that it is now clearer to me. I have to confess—I am sure this is my fault rather than the noble Lord's—that I am still not altogether clear how this group of amendments is intended to operate. Presumably, the effect is that existing closed shops—that is, those introduced before 15th August 1980—should be subject to a ballot only if this is requested by 15 per cent. of the employees covered; that is, the trigger ballot formula; that a closed shop ballot could not be triggered more frequently than once every five years; and that in such a ballot for a closed shop to be approved it would need to gain the support of 55 per cent. of those voting with a
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minimum turnout of 50 per cent. of those covered. So, taken together, the amendments would represent a considerable weakening of the ballot provisions of the Bill. Is the noble Lord happy so far with my interpretation of what he is seeking to achieve?
Lord Howie of Troon: The noble Earl, as always, understands my amendment better than I do. I hesitate to allow the word "weakening".
The Earl of Gowrie: It may be that the weakening is perhaps just my suspicious nature. The noble Lord and I appear to be rather like two blind men approaching each other in the dark, but with a great deal of good will and I think dawning enlightenment as to who exactly we are.
It is not right, in our view, that an existing closed shop should remain approved until a ballot is triggered, because that might never happen. Nor is it right, in our view, that a closed shop should be able to be approved by the low percentage laid down in Amendment No. 46. The difficulty with the whole trigger approach is in the problems which employees would be likely to face in practice in achieving the required threshold level. It needs to be remembered that efforts by individual employees to canvass, or simply to try to find out the level of possible support for a ballot among their fellow employees, would in many cases be strenuously resisted by the trade unions concerned.
It must be expected that in such cases those attempting to promote a ballot might suffer attempts to dissuade them from this course, So it cannot be right that 15 per cent. or any other percentage of employees must, as it were, have to come out and declare themselves publicly in order to gain the right to vote in what is a secret ballot, particularly when those prepared to press publicly for a ballot could, in fact, suffer actual or threatened disciplinary action from their union as a result. If you agitate publicly for a secret ballot in many circumstances it would be quite clear in which way you are trying to vote. This, I think, might end up with no ballots whatever being held. We do not, therefore, consider that trigger ballots are an acceptable substitute for the balloting provisions in the Bill. The Government believe that it is the right of all employees to take part in the closed shop ballot and that right should not depend on the actions of 15 per cent.
Turning to the next point made by the noble Lord, Lord Howie, we do not think it desirable, either, that it should not be possible to hold closed shop ballots more frequently than every five years. Obviously circumstances change—for instance, employees might object to a change in union policy or the turnover of employees might increase. An employer or a union should surely be able to arrange a closed shop ballot when they think it appropriate because otherwise it might be the case that employees could be locked into a closed shop against their will for some years and there would be a constant worsening of industrial relations.
As regards the last substantial point—the percentages needed to prove a closed shop—it may help to set Amendment No. 46 in context if I first restate our belief—and this links backs to the earlier debates—that it is vital, given the fact that there is always liable to

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be some conflict between the closed shop and basic individual freedoms, that before these freedoms can in any way be infringed, it must be shown in a secret ballot that there is over-whelming support for the closed shops from the employees concerned. I should perhaps have said "before these freedoms can notionally be infringed" because some people would accept that freedoms would notionally be infringed, but would find other benefits in getting into the closed shop position.
Amendment No. 46 would pitch the required level of support in a closed shop ballot far lower than the Bill proposes. I accept that whenever you get to a figure you get boundary disputes, as it were, and that there can be no absolute justification of any one figure rather than another. But, as we have frequently stated, our view is that the proposed test of 80 per cent. of those entitled to vote or 85 per cent. of those voting reflects what we would judge sensibly, I think, to be the minimum levels of support required if closed shops are to continue. These figures were generally supported during the consultations which we made and the figure of 80 per cent. of those voting is, of course, already established. It has a precedent in the 1980 Act. I accept altogether that this must ultimately be a matter of judgment. Our view is that it would be wrong to make the test less stringent by reducing the percentages and, therefore, I ask the noble Lord to withdraw the amendment or the Committee to reject it should he press it to a Division.
Lord Wedderburn of Charlton: I know that my noble friend Lord Howie has indicated that he would like to hear a view from this Bench and, of course, there is some distance between some of my noble friends and myself and his view on this matter. He has, I now hear, one advantage over me in discussing matters with the noble Earl, because the noble Earl says that they are like two blind men approaching one another in the dark. With the noble Earl and myself, I sometimes feel that it is a debate with two blind men walking away from one another in broad daylight.
However, I follow the point that the noble Earl has made to us. It is really about two matters: it is about ballots and about majorities. On the basic point, it seems to me that my noble friend surely has the edge. It seemed to me that nothing that the noble Earl said derogated in any way from the transparently sensible point in the first part of my noble friend's first amendment to leave existing closed shops or union membership arrangements as they are. If the Government adopted that, I suspect that there would be many employers' associations that would stop bringing pressure upon them to delay the operation of this Bill, and there would be many shop stewards and trade unionists and many workers, too, who would be quite happy not to be engaged in this matter. Indeed, the question which my noble friend asked was not answered. It was: what is it that has happened since 1980 that requires the introduction of this measure? I shall not mention the fruits of research, but obviously the point would be made in a longer discussion that there is research that suggests quite the opposite, that nothing has occurred.
On the second point, I think that some distance opens between most of my noble friends and my noble friend Lord Howie, although I suspect that there would be a
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gradation of view on this side of the Committee. I am attracted by his later amendments because, in the end, they come to the sort of majority that most of my noble friends and myself think is the one that matters; namely, 50 per cent. You have a vote; you have a group of people; and provided that you can agree on the constituencies—and we all know that that is a problem although we have not heard much about that—you get on with it and one side wins or it does not. I cannot see any justification at all in my noble friend advancing very far. Perhaps a slightly larger majority could be argued for, but certainly not to say that you value one individual's right to assert that he wishes to work under conditions of fellowship with those contributing to the union as being worth a quarter or less of the individual's right to assert that he will work on condition that he takes the benefits without being part of the union.
I think it is necessary for me clearly to record that there is a difference between my noble friend here and the view taken on this Front Bench. We think that the problem of the ballots is not one of a majority. After all, look at the string of amendments and consider what we are being asked to do. Apparently, we are going to engage in a search for the crock of gold or the percentage at the end of the rainbow, whereby industrial relations problems will be solved. The managing director and the shop steward, with their computers, will say" Have we got 65·7 per cent.?" or "Have we got 52·4 per cent.?" Albeit that there are arguments for one majority and against another percentage, I do not think that that is a central issue.
I conclude by putting this especially to my noble friend. Albeit that I think his amendments would, in a sense, be better in almost every way than what we have, nevertheless the central issue was put by the TUC in its report on this very Bill. I quote from paragraph 59 of the report on the Bill, where the TUC said:
"If an employer decides to hold a ballot as required under the proposed legislation, a union will be faced with the choice between not co-operating with the ballot—and thereby risking awards of compensation for sacked non-unionists—and co-operating and engaging in regular and strenuous campaigns to secure the very high majorities necessary. Although these majorities could no doubt easily be secured in many workplaces"—
and this is the point; it is not just the majority—
"there is a strong likelihood that such ballots could cause disruption, and the dissatisfaction of a minority of members with, say, a pay agreement could well surface in a campaign of this kind and result in undermining the union membership agreement",
which could injure individuals as well as managements and workforce.
In paragraph 61 the TUC join this with other parts of the Bill, taking into account the joinder provisions and taking into account the special awards to which we are coming. They suggest—and I put it to your Lordships that this is a reasonable view—that this amounts to an unjustified legal onslaught on union membership agreements, as well as the outlawing of" union labour only" practices, which could lead to serious industrial problems for employers as well as unions. They go on:
"It could also undermine the TUC Disputes Principles and Procedures and exacerbate problems of multi-unionism."
Although I have great sympathy with my noble friend's

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attempt to find more reasonable majorities, majorities will not solve that problem which is at the core of the Bill.
Lord Mottistone: What makes the argument of the noble Lord, Lord Wedderburn, not quite as credible as it should be is that in the background of one's mind is what I call the intimidation factor. It is very sad, but it is a fact of life that we have had to live with for, in my experience, the last 30 years—that, when the pressures come, the intimidation comes.
I was very taken with the point that my noble friend made, that if you have 15 per cent. who must ask for something—the trigger that has been talked about—that identifies the 15 per cent. In an ideal world, that would not matter. People would say, "Good, 15 per cent. have a view". But unfortunately we do not operate in an ideal world. Unfortunately, we have experience that if you have 15 per cent. who identify themselves in a particular way all sorts of pressures come to bear, and they vary. Sometimes they are rather harsh. One has seen the pressures not only on the workforce, but on management as well in reverse circumstances. It is when this threatening aspect comes in that all the happy arguments that in this splendid Chamber we may advance start to have to take a different view.
I would suggest that my noble friend Lord Gowrie is right in his stand on this point. Having a minimum number of people who can identify themselves is wrong. Having to say, "Well, let us", as Lord Wedderburn said, "have roughly a 50/50 sort of rule", does not work if some people are going to be unpleasantly tough and others are not. I would suggest to the Committee that this amendment, good though it is in many respects, or this group of amendments, should be put on one side, and perhaps the noble Lord, Lord Howie, will come back with something which takes into account what has been said at this time. There is a lot of sound viewing behind them, but really they should be rejected by your Lordships at this point in time. The arguments put by my noble friend need to be listened to with care.
Howie of Troon: I am greatly tempted to proceed with the amendment on the strength of Lord Wedderburn's first remarks, which seemed to be kindly directed towards me, but as he went on he seemed to cool in his ardour towards my amendment. It might be best if between now and Report stage I have brief discussions with my colleagues on the main Opposition Front Bench in the hope that we can come up with another group of amendments, and agree between us, and perhaps with other Members of the Committee who have shown willing to walk somewhat in the same direction. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Jacques Lord Jacques had given notice of his intention to move Amendment No. 31:
Page 4, line 34, after ("ballot") insert ("has been requisitioned by 10 per cent. of those employees and")
The noble Lord said: The subject of this amendment
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has been discussed and decided upon. Therefore, it is not moved.
[Amendment No. 31 not moved.]
The Deputy Chairman of Committees: In calling Amendment No. 32 I should inform your Lordships that if it is agreed I cannot call Amendments Nos. 33 to 36.
10.18 p.m.
Lord Spens Lord Spens moved Amendment No. 32:
Page 4, line 36, leave out from ("and") to end of line 39 and insert ("not less than 80 per cent. of those entitled to vote").
The noble Lord said: I do not propose to detain your Lordships very long over this amendment. It arises from my suspicion of the provision that in a ballot of not less than 85 per cent. of those who voted in favour of a closed shop agreement it would be successful in allowing that agreement to continue. Now 85 per cent. of those who voted could be a small percentage of the members involved in the closed shop.
For example, we have had the noble Lord, Lord Mottistone, talking about his seamen where he said that in a ballot on pay, or something, all they could raise was 30 per cent. of the membership. 85 per cent. of 30 per cent. I believe is just over 25 per cent. That could mean that, if 25 per cent. of seamen voted in favour of a closed shop, that closed shop agreement would continue to be maintained, whereas the other 75 per cent. would not have taken part in the voting.
In speaking to this amendment, I am speaking also to a consequential amendment to which my name is coupled with that of my noble friend Lord Howie, No. 37, because if we were to knock out the 85 per cent. it would mean that we should have to knock out Section 58A(2). At the same time, in respect of my Amendment No. 42, which is on the same lines, I do not propose to move that in due course because the situation there is different; it is not an "either/or" but an "and" situation, and I am happy in that respect.
I ask the Minister to consider the situation of 85 per cent. of those who voted. We might have a union of 10,000 members of whom 1,000 voted, and 850 of those voted in favour of continuing the closed shop. It would be 85 per cent. of those who voted, but it would be only 82 per cent. of the total membership of the union. For that reason I believe that to refer to 85 per cent. of those who voted would be a dangerous figure to have in the Bill.
Viscount Trenchard: I think I understand what the noble Lord, Lord Spens, has in mind. I should begin by drawing to the Committee's attention subsection (4) of Section 58A, which declares:
"A ballot under this section shall be so conducted as to secure that, so far as reasonably practicable, all those entitled to vote have an opportunity of voting, and of doing so in secret".
For a ballot to stand up, that condition will have to have been met, and I mentioned earlier that I understand there are provisions of the general law which would allow reference to the High Court. A ballot therefore has to be a proper one.
Then we have the problem of steering between the two dangers that noble Lords from more than one party

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have raised; namely, the danger of making sure, on the one hand, that it is the will of an overwhelming majority that an existing closed shop shall continue, or that a new closed shop, once voted, shall continue for five years, and, on the other, deliberately what has been called "stirring things up" by insisting on everybody being dragged to vote. It is for that reason that we have offered the alternative in the case of closed shops which are not new.
It is indeed possible that a fairly small percentage might vote—which might represent of course a very small precentage of those entitled to vote—as being in favour of the continuation of a closed shop. But that, in our view, would happen only if it were in those situations, which have been outlined, where a closed shop has become completely accepted and is operating in accordance with the wishes both of the vast majority of employees and of the employer, and in those situations we do not want to cause any more disturbance than is necessary.
I do not think that there is a risk, which the noble Lord may have in mind, of a hole-in-the-corner ballot being quickly conducted and a decision passed by a big percentage of a very small vote. Certainly that result could not be brought about in a situation where there was genuine feeling and where whoever was conducting the poll had made sure that there was a chance of people voting and that the voting was secret. Therefore, I resist the amendment.
Lord Hankey: I greatly welcome what the noble Viscount has just said. I take a purely practical view in these matters, and for a moment I should like to revert to a discusion which we had just now. How does the noble Viscount think that the provisions of subsections (3) and (4) could be efficiently carried out with a ballot for thousands of employees unless the union agreement was written down? They might not agree what they were discussing.
Viscount Trenchard: I think that that is a separate question from what is contained in the amendment which the noble Lord, Lord Spens, has moved.
Lord Campbell of Alloway: I understand the concern of the noble Lord, Lord Spens, but I respectfully suggest that, if properly observed, the provisions of subsection (4) go part of the way, but I ask my noble friend the Minister, do they go all the way? Is this an area where perhaps consideration should be given to the type of machinery to be adopted? That machinery would not be to ensure that one drags in many people so that something is imposed upon the trade unions—that would be quite wrong, for the reasons that I have already submitted; it would be to make certain that the matter is brought to their attention in a proper way. I might have misread the provisions, but there does not seem to be any machinery in that regard, and I wonder whether my noble friend the Minister considers the point worthwhile.
Lord Mottistone: Before my noble friend replies, I must say I really think that this is a bit of nonsense. The noble Lord, Lord Spens, knows that I agree with him in many things, but, if the matter is an important one,
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people will turn up; if it is not an important one, they will not. What my noble friend was saying earlier makes absolute sense. I think that we can become terribly mealy-mouthed about this matter. But, if people do not bother to turn up when there is something important, even though the Bill gives them all kinds of opportunities, well, to hell with them!—it does not matter. I think that the amendment amounts to over-nursing people who really ought not to be nursed.
Lord Campbell of Alloway: If it is in order to reply in plain language, which the noble Lord, Lord Mottistone, likes to use, I would ask, with respect to him, how can they turn up if they do not know? That is the only matter that is concerning me. In my submission that is not a matter of nonsense, it is a matter of plain justice.
Viscount Trenchard: My noble friend Lord Campbell of Alloway is a lawyer, and I hesitate to suggest meanings of words, but all of those entitled to vote have an opportunity of voting. I should like to put it to my noble friend: would a tribunal consider that there had been an "opportunity" if there had been no notification of the ballot to all employees? I should have thought that that covered the situation. I said earlier, in relation to subsection (4), that, should it be necessary to spell out the conditions regarding holding a ballot, then my right honourable friend will consider amendments, but we really do not believe that it will be so necessary. Therefore, I hope that we can have what I have called a low-key check, where that is all that is required, and thus avoid the problems of disturbance. In our view, for the reasons which my noble friend Lord Gowrie made clear, disturbance would be caused by canvassing for a trigger mechanism. I hope that we can avoid that and avoid dragging everybody to the polls, when they all know of the situation and have an opportunity to vote. So I hope I can persuade the noble Lord, Lord Spens, having listened to those considerations, to withdraw his amendment.
Lord Spens: I thank those who have taken part in this very short debate. I certainly have no intention of pressing this amendment at this time. I beg leave to withdraw it, and at the same time I give notice that I shall not move Amendments 37 and 42, which are in my name, but I reserve the right to bring them back again at Report, possibly in a slightly different form, because the noble Lord, Lord Mottistone, although he ridiculed my idea, did not answer the problem of his own merchant seamen, where he cannot get more than 30 per cent. to a ballot, and 85 per cent. of that is only 25 per cent. of the whole.
Viscount Trenchard: Before the noble Lord withdraws his amendment, may I remind him that the provision to vote on more than one day and without a limit of numbers is in this Bill? Among other things, we hope that that will make possible a vote, and will make it possible for whoever conducts the poll—for instance, in the shipping industry—to make sure that everyone entitled to vote has an opportunity.
Lord Spens: I am most grateful to the Minister for that. It still does not quite answer the point made by

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the noble Lord, Lord Mottistone, because I do not suppose there was any real limit to the time that his seamen were allowed to take in joining in that particular ballot. However, we have had enough of this amendment, and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
10.33 p.m.
Baroness Seear Baroness Seear moved Amendment No. 33:
Page 4, line 37, leave out ("80") and insert ("70").
The noble Baroness said: With the leave of the Committee, with this amendment I should like to take Amendments Nos. 35, 43 and 44. As we have said repeatedly during this Committee stage, we want to see the possibility of real change in the position of the closed shop, but we also want to maintain the opportunity for people to preserve it if they wish so to do. We want the options to be real options, of the status quo or of change.
Our objection to the Bill as it now stands, and the purpose of these amendments, is that we think the percentages given in the Bill are too high to make the possibility of maintaining the status quo a real one. The idea that 80 per cent. of people will turn out, or 85 per cent. of those able to vote, seems to us to weigh the scales unduly heavily against the maintenance of the existing position. Although, speaking at any rate for myself, I do not like the existing position, if we are saying it is to be a genuine choice, then, in our view, 80 per cent. and 85 per cent. are quite unrealistically high.
On the other hand, we would not feel that we could go along with the suggestion which is in other amendments which have been tabled, which puts the figure as low as 60 per cent. Of course, there is no absolutely right figure, it has to be a matter of judgment; but in our view the figures we have here in these amendments for those who have to turn out to vote for change or for the maintenance of the status quo are just about right, in that they give a fair choice to go on as you are or a reasonable opportunity to change. I beg to move.
Lord Kilmarnock: In supporting the noble Baroness in the amendment she has just moved, may I say that I did a little research into the operation of the 1980 Act. The noble Lord, Lord Wedderburn, referred to the crock of gold. He said that these was no crock of gold; that we can go on juggling with these percentages and we would be extremely unlikely to get them right unless we brought them right down to 50 per cent. We do not agree with that. As to the operation of the 1980 Act, which introduced the 80 per cent. threshold, in discussion in Standing Committee G in another place on 30th March of this year it was elicited from Mr. Waddington, the Under-Secretary of State for Employment, that in fact two ballots had taken place under the provisions of the 1980 Act. In both cases there were just over 100 people in the scope of the proposed agreements—so we are talking about small workforces—and some 90 per cent. or more voted in each case. In both cases, just under 80 per cent. of those eligible to vote voted in favour.
This, of course, produces a problem, and indeed the problem was raised by another honourable Member. I paraphrase him, of course, but he pointed out that,
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as the requisite 80 per cent. had not been achieved, some malcontents subsequently went to the tribunal and were awarded compensation which had to be paid by the local authority. So there we have a concrete situation where the 80 per cent. which the Government seek to maintain in this Bill has in fact had, I suggest, an effect which was contrary to that which was intended. I thought it was useful to bring into the debate that small instance of what had happened. It seems to me to give very good substance to the contention of the noble Baroness that what we want is something like 10 per cent. lower on each of the figures which are in the Government's Bill; in other words, to reduce the 80 to 70 and the 85 to 75.
I think that if the Government would agree to that, and if noble Lords who will be later moving the Opposition's rival set of figures would also agree with us, we shall probably be able to come to an acceptable compromise, which may not be exactly the crock of gold, but which may be a workable procedure for British trade unionism in this country.
Lord Jacques: I suggest that it would be for the convenience of the Committee to have one debate on this question of percentages. If the Government Front Bench agree with that, I am quite prepared to speak to Amendments Nos. 34 and 36.
Viscount Trenchard: I would be happy about that if the noble Baroness was happy.
Baroness Seear: Yes.
Lord Jacques: In any atempt to change established rules and regulations, it is normal practice to require more than 50 per cent. There are many examples of that. For example, under the Companies Act, in order to pass a special resolution changing the status quo you need a 75 per cent. majority. Under the Industrial and Provident Societies legislation (under which co-operative societies are registered), to have a special resolution changing the status quo you have to have a 663 per cent. majority. It is also common practice in companies, in co-operative societies and in trade unions that, where the rules and articles are being changed, a two-thirds majority is required. So to change established practices usually means a substantial majority.
But what do we find in this Bill? We find that when an established practice—namely, the closed shop—is going to be changed, it can be done with a majority of 21 per cent. of those entitled to vote and 16 per cent. of those who actually vote. Is that not different from what applies in the Companies Act, in trade unions and in co-operative societies? To change it, you have to get merely 16 per cent. of those voting, and you are home and dry.
The amendments that I have down—Nos. 34 and 36 —with the support of my noble friends Lord Oram and Lord Beswick, are very modest. Instead of the existing rules and regulations being changed by 20 per cent. of those entitled to vote, we are suggesting that the figure be increased to nearly 40 per cent. and that the 15 per cent. be increased to 33 1/9 per cent. So, by having a vote of only 33 1/3 per cent. against the existing regulations, you can change them. That, I suggest, is exceedingly generous to those who want to

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make the change; and in order to get the change which I am suggesting 60 per cent. of those entitled to vote would have to be substituted for 80 per cent. and 66 2/3 per cent. of those voting would have to be substituted for 85 per cent. By putting the figures to you in the way I have, I hope I have showed how unsatisfactory and how unfair the Bill is to trade unions and how it coddles the people who are against trade unions.
Lord Mottistone: I should like only to say, do not forget the intimidation factor.
Viscount Trenchard: We have been over quite a lot of this country a good many times. I would start by saying to the noble Baroness, Lady Seear, that I find it difficult to accept her statement of what a great problem it would be to get 85 per cent. of those who vote to vote in favour of a closed shop which is working very smoothly and very happily for all concerned.
Lord Pitt of Hampstead: Would the noble Viscount give way Would he tell me what is the average percentage of voting in general elections?
Viscount Trenchard: I am not sure whether the noble Lord has understood the point I was making. The point is that if only 10 per cent. voted it was perhaps not a very exacting requirement because there was peace and nobody was very interested in spite of the ballot being promulgated. It would not be very surprising, frankly, if the whole of the 10 per cent. voted for continuation. In that context I would mention the two cases quoted by the noble Lord in relation to a figure of 80 per cent. not being quite reached. In both cases I understand that the figure of 85 per cent. of those voting was reached and was in fact exceeded. I suggest therefore that there is some evidence on the first point raised by the noble Baroness that the 85 per cent. alternative check, particularly offered in areas where there were no problems, is not a great difficulty. The other part of this amendment, and indeed the other part of various amendments, including those spoken to by the noble Lord, Lord Jacques, is the "first only" vote in the case of a new closed shop, where 80 per cent. of those entitled to vote are required to vote in favour.
Lord Jacques: Would the noble Viscount give way? My amendments deal only with existing closed shops.
Viscount Trenchard: If I may at this stage go on with the new closed shop and the second point raised by the noble Baroness—I am sorry if I have wrongly quoted the noble Lord's amendments in this context—it is quite definitely the view of the Government that a new closed shop should only be voted in by an overwhelming majority. It represents a major change in conditions of employment. It could be called a situation where the employee moves into an area where his permit to his job or his permit to work is controlled by a certain union that is proposing the closed shop agreement with the company.
My noble friend Lord Mottistone has mentioned pressures and I, personally, have considerable experience of what those pressures can do, right through to the forcing of 100 per cent. membership by a threat
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of a strong union totally to cut off supplies to a company. The 100 per cent. membership was achieved and the closed shop followed. That is an incident in my own personal experience, and it confirms what my noble friend Lord Mottistone said about the power and pressures that can exist. I am not suggesting that they exist widely. The Bill is to deal with the areas which are not working well, and we have already spoken on previous clauses of the many occurrences. Therefore, I would reject, also, the noble Baroness's amendment in relation to the first ballot coming down to 70 per cent. Although the noble Lord, Lord Jacques, has spoken to his amendments, they are slightly different, and I am wondering whether we should take them at this time, or whether I could pause there for a moment, at least.
Lord McCarthy: I am not sure where this debate has got to. It seems to be getting more and more confused. It reminds me of the kind of debates that students have when they exchange their views about the system of proportional representation, which they think is possibly the best one for their party. It is not unlike the arguments which I am sure the medieval school men used to have on how many angels should dance on the end of a pin.
The noble Baroness says that 60 is too low and 80 is too high, so let us make it 70. It is the splitting the difference principle. The noble Lord, Lord Kilmarnock, says have a sample He knows of a sample where they got 80, so make it 70—
Lord Kilmarnock: I am sorry, but I was quoting a concrete instance. The whole point of my remarks was to show that something marginally under 80 was achieved, and this gave rise to all sorts of undesirable results which had not been envisaged.
Lord McCarthy: I said have a sample. You have two examples. It was not a stratified sample. But it does not follow from the fact that that is what happened there, that that is the principle that we ought to have in a ballot. The fact is that you cannot extract these principles out of the air, whether you split two figures or use an isolated example. You can say, logically, that there is something called a majority decision, and there is something called a minority decision. That is the way in which we normally decide things when we have votes, if you want votes at all. But where, and how, you can decide whether 70 is right, 60 is right, or 33 1/3 the first time is right, I do not know. All you can say—and everybody has said this, and this is why we will support these amendments, if any of them go to a Division—is not that they are particularly logical, but they are better than the Bill.
The only arguments that we have against them have not so much been from the Front Bench, but from those like the noble Lord, Lord Mottistone, who were talking about intimidation, and said that, because we have intimidation, we have to have high figures. Again, it is never argued very logically why 80, 70 or 85 will prevent this intimidation and, indeed, no evidence is put in about intimidation. The only stratified sample we have, rather than isolated examples, is, I am afraid, Professor Gennard, who saw no signs of that intimidation.

877
The particular and specific example which the noble Viscount put before us this evening, if I may say so with great respect, was not an example of intimidation of individuals; it was an example of collective blacking—probably, now unlawful under the 1980 Act. But it was not an example of intimidation of individuals. Therefore, I am afraid that we have not been given any good reasons why we should agree either with what the Government want, or with any particularly high figure. But if anybody wants to move anything which is better than this Bill, then we shall support it.
Viscount Trenchard: I was doing my research work to see why I had wrongly quoted the noble Lord, Lord Jacques, as being interested in new closed shops. The reason why I took it that he was is that his Amendment No. 34 suggests leaving out the 80 per cent., which applies as a definite "must" for new closed shops, rather than the 85 per cent. which he mentioned subsequently and reduced to two-thirds. The noble Lord is saying that if the employer and the union in an existing closed shop choose to have their agreement balloted under the alternative of 80 per cent. of those entitled to vote, then it should be reduced to 60 per cent., and I now understand that he is referring only to existing closed shops. I had not previously understood that.
Baroness Seear: I accept the comment that there is no possible proof that any particular figure is absolutely right, but since I consider, and as people who have spoken on this side of the Committee consider, that this figure of 70 is an improvement on the existing figure of 80, I wish to test the opinion of the Committee and will divide.
10.51 p.m.
On Question, Whether the said amendment (No. 33) shall be agreed to?
Their Lordships divided: Contents, 21; Not-Contents, 48.

DIVISION NO. 3.

CONTENTS

Airedale, L.

McCarthy, L.

Aylestone, L.

Oram, L.

Beswick, L.

Peart, L.

Bishopston, L.

Pitt of Hampstead, L.

Boston of Faversham, L.

Ponsonby of Shulbrede, L.

Collison, L.

Rochester, L.

David, B.

Seear, B.—[Teller.]

Jacques, L.

Underhill, L.

John-Mackie, L.

Wedderburn of Charlton, L.

Kilmarnock, L.—[Teller.]

Wilson of Langside, L.

Llewelyn-Davies of Hastoe, B.

NOT-CONTENTS

Alexander of Tunis, E.

Denham, L.—[Teller.]

Avon, E.

Dilhorne, V.

Belstead, L.

Drumalbyn, L.

Campbell of Alloway, L.

Elliot of Harwood, B.

Cathcart, E.

Elton, L.

Cork and Orrery, E.

Faithfull, B.

Crathorne, L.

Ferrers, E.

Davidson, V.

Glanusk, L.

De La Warr, E.

Glenarthur, L.

878

Gowrie, E.

Mottistone, L.

Hankey, L.

Murton of Lindisfarne, L.

Harvington, L.

Newall, L.

Henley, L.

Norfolk, D.

Kilmany, L.

Saltoun, Ly.

Kinnaird, L.

Sandys, L.—[Teller.]

Kinross, L.

Skelmersdale, L.

Lindsey and Abingdon, E.

Spens, L.

Long, V.

Stodart of Leaston, L.

Lyell, L.

Sudeley, L.

Mackay of Clashfern, L.

Thomas of Swynnerton, L.

Mansfield, E.

Trefgarne, L.

Margadale, L.

Trenchard, V.

Marshall of Leeds, L.

Trumpington, B.

Mersey, V.

Young, B.

On Question, amendment agreed to.

[Amendments Nos. 34 to 37 not moved.]
10.59 p.m.
Viscount Trenchard Viscount Trenchard moved Amendment No. 38:
Page 5, line 9, leave out from ("class") to end of line 11 and insert ("and who—

(a) in the case of a ballot in which votes may only be cast on one day, are in the employment of the employer on that day; or

(b) in any other case, are in that employment on the qualifying day.

(3A) "Qualifying day" means the day specified as such by the person conducting the ballot; but no day shall be specified which—

(a) falls after the last of the days on which votes may be cast in the ballot; or

(b) is so long before that date as to be unreasonable in relation to that ballot.").

The noble Viscount said: I have already spoken to this amendment with Amendment No. 24. I beg to move.
Viscount Trenchard Viscount Trenchard moved Amendment No. 39:
Page 5, line 14, after ("vote") insert ("—(a)").
The noble Viscount said: The same applies. I have already spoken to Amendments Nos. 39 and 40. I beg to move.
Viscount Trenchard Viscount Trenchard moved Amendment No. 40:
Page 5, line 15, at end insert ("; and
(b) in a case which does not fall within subsection (2)(a), know, before they cast their votes, which day has been specified as the qualifying day.").
[Amendments Nos. 41 to 46 not moved.]
Lord McCarthy Lord McCarthy moved Amendment No. 47:
Page 5, line 33, at end insert—
("(8) Any employer or employee affected by an agreement may refer a question whether the conditions of this section are satisfied to an industrial tribunal which shall make a declaration determining the question.
(9) A reference may be made under subsection (8) within one month before or three months after the date of the commencement of the ballot.").
The noble Lord said: We have almost come to the end, at least for tonight. This is an extremely modest small amendment which I shall move in a moment, appropriately at this time of night. What we are saying is that, since the Government are now going to have ballots and since it is on the basis of 80 per cent. of

879
those entitled to vote or 85 per cent. of those voting, surely something should be done to see that there is some kind of reference point if there is a disagreement about who should do this thing and what the result would be. Therefore, if there is dispute about the result of such a ballot or whether the conditions are satisfied—for example, whether the ballot is conducted in secret, or so far as is practicable all those entitled to vote are given an opportunity to do so—these issues should go to an industrial tribunal. There would be endless debate about what was right and what was wrong, and in the end someone would have to decide. We are saying we want a simple solution: let the industrial tribunal decide whether a ballot was properly held under the Bill. I beg to move.
Viscount Trenchard: I am afraid I must resist this amendment which the noble Lord has moved so briefly, and I thank him for that brevity. The suggestion that either employer or employee be able at the time of a ballot to check its validity is not one that we wish to accept. We believe that the whole basis of this Bill is that certain things require doing if protection is to be given to employees against unfair dismissal. To put into the Bill a requirement on tribunals to check the validity of a part of the procedure as it goes along would be an enormous extra burden—one not really required.
The conditions for a ballot are briefly but clearly set out in subsection (4). Individuals who believe after a ballot has been taken, that it has not been taken fairly, do have recourse to the High Court. We therefore believe that we should leave it like that at present and that it would be quite wrong in this Bill to put a requirement on industrial tribunals to give advanced views on the validity of one part of an agreement and the way in which it has been conducted.
Lord Campbell of Alloway: I very briefly at this hour support my noble friend the Minister. Your Lordships may remember the ETU ballot-rigging case—a very sad case. The noble Lord makes a grimace. It is not really wholly appropriate to do so, because this was a situation where there was ballot-rigging and it was dealt with in the High Court. The purpose of mentioning it was not to cause the noble Lord, Lord Wedderburn, any particular pain, but to point to the fact that this amendment is really totally misconceived; that it should never go before an industrial tribunal as a matter of law; and that if there is a serious question of impropriety in the taking of the ballot, it should go to the High Court. There is precedent for it and one of the precedents is the ETU case and I make no apology for mentioning the fact.
Lord McCarthy: It really is astonishing to be told at this time of night that a small group of workers—for example, 100; let us give them a chance—who conduct their ballot and get 84 1/2 per cent. and they work it out that they have really got 85 per cent., but the employer says 83 per cent., should go to the High Court. We are solemnly told at seven minutes past 11, that they should go to the High Court—hundreds and thousands of them all over the country should go
880
to the High Court. I wonder that the noble Lord did not say that they should go to the Master of the Rolls!That is what we are being told.
We are given as an example the ETU ballot-rigging case. We all know that that was a scandal, and the reason why it was a scandal was that it took the ETU seven long years of litigation to get it settled and thousands and thousands of pounds, and they had to be expelled from the TUC in the meanwhile. We are told, "Use that, go to the High Court; do what the ETU did". We can only come to one conclusion. It has been clear all night. My noble friend beside me says that they are not serious. The fact is that the Government do not expect this machinery to work; they do not expect thousands and thousands of people to have ballots and if they get 84.2 per cent. to go to the High Court. What they expect to happen is that there will be no ballots, and slowly and insidiously trade unions will be forced to accept non-unionists because they cannot go to the High Court, and the closed shop will collapse. That is what it is all about and that is why we move this amendment.
Viscount Trenchard: I would only very quickly say that I do not think that the noble Lord's scenario begins to be likely or to make sense at all, and in any event the person holding the ballot and responsible for it will add up the vote, will declare it to the employer and the union, and will declare what percentage of people eligible has voted. To have industrial tribunals to look into the machinery for which he is responsible, and the possibility that he may—may only in the unlikely case of individual employees or employers take a case to an industrial tribunal—have to give evidence and make clear what took place; to have a situation where checks on ballots and queries on ballots of those who do not agree with them, can all be deluged on to industrial tribunals, is really not a practical suggestion.
Lord Wedderburn of Charlton: Before the noble Viscount sits down, although this is a late hour, as my noble friend has said, may I say that this is a most important matter. This is something upon which the noble Viscount's noble friend Lord Campbell of Alloway plainly relied, because the noble Viscount first mentioned going to the High Court. First, as the tribunals are to be out, what is the procedure for going to the High Court? Is it a writ, a normal action, a declaration, interlocutory proceedings—what is the procedure envisaged?
The noble and learned Lord the Lord Advocate is here and, although he will disclaim it, being a Scottish lawyer, he knows the High Court as well as I do, and he will no doubt advise us if he wishes. I make that point because I do not want to take unfair advantage; we have a Law Officer in the House and we are most grateful.
The second point turns out to be even more important. It is not just the expense and delay of the High Court. The tribunals are somehow not suitable judicial bodies to hear the sort of evidence that will come out. What sort of problem is this that has suddenly been ferreted out in the midst of the procedure? The noble Viscount shakes his head; he can answer my question in a moment. It is, as was said

881
about the English common law, found in the interstices of procedure and the real problems of legal machinery, of course, are always discovered, or very nearly always discovered, in the interstices of procedure. What is it about the procedure, or is it the composition of the tribunals, that makes them bodies that are defective for this particular kind of evidence? Is it that they have a tripartite character? We need some explanation from the Government as to why they do not trust, find incompetent, or find inadequate industrial tribunals for hearing this type of case, and in particular, as the noble Viscount has said—the most important point of all—this type of evidence. So what in the High Court, and how, and why not the tribunals for that?
Lord Mottistone: Before my noble friend replies, could I ask both the noble Lords, Lord McCarthy and Lord Wedderburn, if either of them have ever taken a case to an industrial court personally?
Lord Wedderburn of Charlton: Yes.
Lord Mottistone: I do not mean that they have been a member. I ask whether they have taken a case as one of the parties.
Lord Wedderburn of Charlton: The noble Lord has asked me a question and I will reply. I have taken a case to the industrial tribunal and I have taken a case to the employment appeal tribunal. I do not claim a great expertise. Many people who are not lawyers represent workers and employers at tribunals. The noble Lord may well have been involved in more cases than I have.
Lord Mottistone: I am not talking as a lawyer; am talking as a person who has taken a case to an industrial tribunal. I just wondered whether either of the noble Lords had ever done that.
Lord McCarthy: I wonder whether the noble Lord could tell us the point of this question.
Lord Mottistone: Because they would then perhaps be talking from experience rather than theory.
Viscount Trenchard: In trying to hurry, one succeeds in going more slowly. In relation to what is suitable for the High Court, I shall leave it to my noble friend to give a lawyer's answer. But as I understand it, the High Court possibility—and I tried to describe it—would be there for someone who believes that there was something wrong with the ballot or the way in which it was conducted. Therefore, if they want to refer a ballot that has taken place, that they believe has been invalid for any reason, I believe that they can take it to the High Court, and it would be appropriate for them so to do.
On the queston of the suitability of industrial tribunals, it remains the Government's view very clearly that industrial tribunals are a quite inappropriate form for deciding the issues likely to be at stake if a ballot is challenged. Of course, the first point of responsibility, as I have said before, is the person in charge of the ballot, who will declare a result. This is a whole
882
new area that we would be throwing into the field of industrial tribunals rather than the individual cases which they otherwise would have to judge. I do not believe that there is a need for this sort of procedure. The law does not compel the holding of ballots. The law concerns only unfair dismissal. This bears on what I tried to suggest—that it was not an appropriate amendment or clause for this Bill. If trade unions are in doubt about the result of a ballot, they should play safe and not seek the dismissal of non-unionists.
11.15 p.m.
Lord Underhill: Assuming a man is dismissed from his employment as a result of a ballot on a closed shop, as he goes to the tribunal and it all depends on the voting percentage, what does the industrial tribunal do? Does it say, "Go to the High Court", or deal with it?
Viscount Trenchard: If the case goes to the industrial tribunal as an individual complaint, the first thing presumably the industrial tribunal will do will be to take the evidence of the person conducting the ballot in accordance with subsection (4), ask for the results, ask for the conditions, ask for the entitlement to vote checks, and—which is what the tribunals are there to do—check whether in that particular case of unfair dismissal the results were in fact valid.
Surely, where we are not expecting huge numbers of wrongful or unfair dismissals, to allow or encourage specifically in the Act this kind of, "Will you judge in advance whether this ballot was fair in case there is any case on it?" is just not appropriate.
Lord Campbell of Alloway: May I seek to come to grips with Lord Underhill's point? There is a distinction between the jurisdiction of the industrial tribunal if it is invoked in relation to unfair dismissal and if in that context the question as to whether the ballot was this way or that way arises. That is one type of problem. The type of problem that I was dealing with has been misunderstood by the noble Lord, Lord Wedderburn. I was dealing with the case which did not necessarily involve unfair dismissal at all but gave rise to the problem of whether this was a rigged ballot. In those circumstances, it is wholly appropriate that the High Court should retain its exclusive jurisdiction.
There is this distinction. They should be kept apart. Because the High Court jurisdiction is appropriate in one set of circumstances, it does not mean that in any sense, as was suggested by the noble Lord, Lord McCarthy, I at all events in some way denigrated the value of an industrial tribunal review.
Lord McCarthy: When the noble Lord gets in to help the Government, he gets them further into the mess. He is now telling us that it might be that an industrial tribunal would get in. That is what the noble Viscount is saying. He said in answer to my noble friend's question that if it came about that somebody was unfairly dismissed, or claimed he was unfairly dismissed, and went to a tribunal and said, "But the ballot was wrong. It was rigged"—and of course it might have been two years earlier, and they might have thrown away all the records then the industrial tribunal, not the High Court, despite what the noble Lord said, would not have exclusive jurisdiction. But

883
that is not so if what the noble Viscount says is right, because then the industrial tribunal would have jurisdiction, not the High Court.
It would be for the industrial tribunal, says the Minister, to decide one year or two years after the event whether in fact the ballot had been properly run. We say that that is nonsense. If you admit that you would in fact de facto be giving to an industrial tribunal two years after the event the job of foraging around and trying to find out whether a ballot had been fairly run or not so that you could decide whether a man was fairly dismissed or not, it would be much better if you voted for our amendment.
Lord Mottistone: What the noble Lord, Lord McCarthy, has been describing would happen anyway, even without his amendment, so there is no need for his amendment.
On Question, amendment negatived.
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
Lord McCarthy: I shall not delay the Committee for long in view of the hour. We oppose this clause, which we regard as extremely important. The clause is designed to do two things. The first is to create a category of specially deserving people in cases of unfair dismissal, or those subject to pressure short of dismissal, and, on another occasion, we shall be discussing all the extra special advantages in terms of compensation and awards which will be given to those who are dismissed on grounds of union membership. We do not accept that this is a true and proper comparison. We do not accept that the non-unionist, the man who does not want to join a union, is in exactly the same position as the man who wants to join a union and is prevented from doing so. We do not accept the parity of those two positions.
We regard the right to join a union as an aspect of the right to combine; the right to self-defence in defence of trade union interests, and we would maintain, and have maintained, that before the 1971 provisions for unfair dismissal, that was accepted in law. We maintain that the right not to join a union is an aspect of the right to dissent, the right not to co-operate, the right not to accept certain kinds of tasks and obligations. We maintain that in real life, neither of those rights can be allowed in an absolute form. Not all people have the right to combine. Not all people have the right to dissent. We must pay our taxes, compulsory sick pay or superannuation schemes, and we cannot look at these two rights as though they were absolute and two sides of the penny. We do not believe that those who are unfairly dismissed on either of these grounds are in some special category, as the Government will be arguing when they defend further clauses of the Bill later when we debate the measure again.
But the second part of the Bill is to institute the regulations concerning ballots in respect of existing UMAs, and we have tried, as noble Lords in other parts of the Committee have tried, to mitigate and moderate these in various ways. We have tried to reduce the numbers in the votes and produce other ways of doing it—through trips and other methods—and finally we tried to get the Government to agree that they
884
should find some mechanism for deciding whether or not the vote, however run, was fair. On none of heset have the Government been prepared to give way. I return to the point I made earlier: the aim of the clause is not to help UMAs to become legitimate. It is to increase the reasons why people should object to being union members and to undermine union membership agreements, and for that reason we oppose it.
Viscount Trenchard: My noble friend Lord Gowrie and I have already given the answers to the arguments of the noble Lord, Lord McCarthy, amendment by amendment as we have gone through the clause. The Government are not anti-union. They are not even anti-closed shop, and are not nearly so restrictive of closed shops as many other societies. They believe in a balance between individual liberty and the encouragement of strong and responsible collective bargaining. The public opinion polls, of which I quoted only one, have shown quite consistently not only the national public opinion but the opinion of trade union members themselves. I believe that noble Lords on the Front Bench opposite, who have had long years of intimate connection with this world, starting in a period when the balance of power was extremely different from what it is today, are the ones who are living in the past. I believe that this is a fair measure, a balanced measure, and I commend the clause to the Committee.
11.26 p.m.
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
Their Lordships divided: Contents, 48; Not-Contents, 12.

DIVISION NO. 4

CONTENTS

Airedale, L.

Kinnaird, L.

Alexander of Tunis, E.

Long, V.

Avon, E.

Lyell, L.

Aylestone, L.

Mackay of Clashfern, L.

Belstead, L.

Mansfield, E.

Campbell of Alloway, L.

Margadale. L.

Cathcart, E.

Marshall of Leeds, L.

Cork and Orrery, E.

Mottistone, L.

Crathorne, L.

Murton of Lindisfarne, L.

Davidson, V.

Norfolk, D.

De La Warr, E.

Rochester, L.

Denham, L.—[Teller.]

Saltoun, Ly.

Elliot of Harwood, B.

Sandys, L.—[Teller.]

Elton, L.

Seear, B.

Faithfull, B.

Skelmersdale, L.

Ferrers, E.

Stodart of Leaston, L.

Glanusk, L.

Sudeley, L.

Glenarthur, L.

Swinton, E.

Gowrie, E.

Thomas of Swynnerton, L.

Hankey, L.

Trefgarne, L.

Harvington, L.

Trenchard, V.

Henley, L.

Trumpington, B.

Kilmany, L.

Wilson of Langside, L.

Kilmarnock, L.

Young, B.

NOT-CONTENTS

Bishopston, L.

McCarthy, L.

Boston of Faversham, L.

Oram, L.

Collison, L.

Pitt of Hampstead, L.

Jacques, L.

Ponsonby of Shulbrede, L.—[Teller.]

John-Mackie, L.

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

Underhill, L.

Wedderhurn of Charlton, L.

Moved accordingly, and, on Question, Motion agreed to.

Resolved in the affirmative, and Clause 2, as amended, agreed to accordingly.
Lord Denham: I beg to move that the House be now resumed.
House resumed.

Feltham Station Area Redevelopment (Longford River) Bill
Reported from the Unopposed Bill Committee without amendment.
Shrewsbury and Atcham Borough Council Bill [H.L.]
Reported from the Unopposed Bill Committee with amendments.