§ 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 797 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 798 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 799 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: 800have 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 801 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 802 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 803 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 804 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—
§ 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, 141.807
|DIVISION NO. 2|
|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|
|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.|
|Ardwick, L.||Jenkins of Putney, L.|
|Beswick, L.||John-Mackie, L.|
|Bishopston, L.||Llewelyn-Davies of Hastoe, B.—[Teller.]|
|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.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.23 p.m.
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 809 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 810 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 sowould 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 816 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 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.
§ 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 817 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 818 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 820 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 822 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. 823 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 824 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 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.
§ 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 825 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 826 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 827 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: 828Everyone 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.
829 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 830 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.
831 Accordingly, I beg to move that the House do now resume.
§ Moved accordingly and, on Question, Motion agreed to.
§ House resumed.