Employment Bill

HL Deb 07 July 1982 vol 432 cc831-85

House again in Committee on Clause 2.

The Earl of Halsbury had given notice of his intention to move Amendment No. 23: Page 3, line 44, leave out ("were pending before an industrial tribunal") and insert ("had not been finally determined").

Viscount Trenchard

I know that the noble Earl, who is not in the Chamber at the moment, does indeed wish to move the amendment, and is in fact trying to get one piece of information which is of value to him. While we are awaiting his arrival, I can tell the Committee that, as I understand it, his point is whether the words in line 44 on page 3 of the Bill which read, were pending before an industrial tribunal", in fact cover the full course of the proceedings before a tribunal. I see that the noble Earl has now arrived, and so I shall cease attempting to move his amendment for him.

The Earl of Halsbury

I must apologise to your Lordships' Committee for not being in my place at the right time. I miscalculated the length of the dinner break. This is intended to be a fairly simple probing amendment to find out exactly what falls under the scope of the words were pending before an industrial tribunal". Supposing the matter had ceased to pend and had been decided by the industrial tribunal, and supposing an appeal is then launched, is it still pending? Obviously, it cannot be pending before the industrial tribunal because procedures have ceased at that point. So, by way of probing for the meaning of the Bill as drafted, I propose an amendment, which of course I shall not press, to leave out the words: were pending before an industrial tribunal", and insert the words "had not been finally determined", which include the possibility of an appeal. I think that that is all I need say in moving the amendment. I beg to move.

Viscount Trenchard

I have spoken with the noble Earl on this matter and I have told him that at the moment I have still not got 100 per cent. clear the position on the question of an appeal. If it makes him feel any easier—and I apologise for causing him to sprint—I would say that my officials who were due to give me the answer have not returned either—

Lord Boyd-Carpenter

They are not as good sprinters.

Viscount Trenchard

The noble Earl is concerned that the use of the word "pending" gives an impression of something in the future and that therefore the cut-off date for the provision might be early in the tribunal's hearings, or even before them. I can tell him that that is not correct. I can assure the noble Earl quite clearly that a complaint is in fact regarded as pending before an industrial tribunal from the moment that it is lodged until the time when it is finally determined by a tribunal, or withdrawn.

I am informed that there is some doubt as to whether the words "finally determined" cover an appeal and what is the position in relation to compensation and pay. I have asked that we look further into this question, and I shall have to promise the noble Earl yet another letter. In it I shall cover very clearly the position of the appeal and in particular, if the appeal is not covered by the word "finally", what is the retrospective position in relation to compensation and pay if at a later stage an employee wins a case on appeal. I shall write to the noble Earl before the Report stage, so that, should he wish to press the Government on the point, he will be in a position to do so.

The Earl of Halsbury

I think that this shows the value of the Committee stage and of probing amendments to discover the truth about a proposed form of words which is not in fact as precise as one could have wished. Naturally I accept the assurance of the noble Viscount that he will write to me about it in time for me to reserve my position at the Report stage, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.48 p.m.

Viscount Trenchard moved Amendment No. 24:

Page 4, line 6, at end insert— ("(7A) For the purposes of subsections (3)(c) and (6)(c), where votes in a ballot may be cast on more than one day, the ballot shall be treated as held on the last of those days.").

The noble Viscount said: I beg to move Amendment No. 24 and to speak also to Amendments Nos. 38, 39, and 40, which are all part of the same package. Amendment No. 24 is intended to cover the situation, which I mentioned on earlier amendments, where it might not be possible to hold a ballot on only one day for all the employees. The shipping industry raised this point in particular, and we have referred to that industry in previous amendments. Therefore, the first thing that Amendment No. 24 does is to make sure that the ballot can be held on more than one day.

This series of amendments then performs two purposes. The first is, if the ballot is to be held on more than one day, to define which day is the day from which one calculates the five-year period before another ballot would be required if protection is to be maintained. The second purpose is to determine which day shall be the day on which people eligible to vote in the ballot shall be regarded as having been in the service of the employer.

So at this stage, if I may say this, I believe that this relatively non-controversial package could perhaps be accepted by the Committee. The decision on the first purpose is that the last day on which ballots are held shall be the day for calculating the interval for the five-year period, and in the second case of deciding who is entitled to vote, the day shall be decided—and it is called "the qualifying day"—by the person conducting the poll. The day cannot be after the last of the days on which votes are cast and it cannot be so long before that date as to be unreasonable, but it must be decided by the person conducting the ballot. I hope this proves to be a non-controversial amendment in furtherance of the need to have practical arrangements for the periodic ballot. I beg to move.

Lord McCarthy

I think we find this amendment non-controversial. Of course, it recognises the fact that there was not anything very much, either in the 1980 Act or, until this moment, in this Bill—and I take it these provisions will also cover ballots in future UMAs—as to how these ballots are in fact going to be conducted. The Government have at last begun to realise some of the problems in running ballots of this sort. But we still see that there is nothing in either of these pieces of legislation affecting ballots about the joint regulation of ballots or about any examples of independent assessments of results; and, of course, there is still nothing in the clause about what would happen on any appeal or dispute about the results of these ballots. Nevertheless, it is something to see that the Government have begun to realise that you could not have ballots extending over only one day.

The only problem I have about that, and the only question I should like to ask the noble Viscount—and I hope he can assure me—is this. I hope that this is not dealing with the question that we dealt with yesterday about the peculiar problems of the shipping industry, because he said that this would help the shipping industry. Yes, in some ways it would, but what was required to help the shipping industry in UMAs, and what I suggest was promised to us last night, would of course go much further than this; and I rather took the impression that the noble Viscount was going to give us a new clause in this Bill to cover that.

Viscount Trenchard

I am sorry if the noble Lord, Lord McCarthy, was expecting more than I have given him, but I believe that this degree of flexibility and the way of determining the ballot day in order to achieve this flexibility will be of value to more than just the shipping industry. There are clearly problems in other areas.

In so far as his general point about the definition of how the ballot will be held is concerned, he is right, of course, that we have put in a short statement in Section 58A(4) which says: A ballot under this section shall be so conducted as to secure that, so far as reasonably practicable, all those entitled to vote have an opportunity of voting, and of doing so in secret". My right honourable friend the Secretary of State hopes that that will indeed prove adequate, bearing in mind that aggrieved employees can appeal to the High Court on ballots being unfairly conducted in any event, so I understand; and, if there is proved to be a need over a period of time to be more specific about ballots, then we shall see. But in terms of this amendment the object is simply to make clear how the ballot days shall be calculated and fixed now that we have decided that the ballot may be held on more than one day.

Lord Boyd-Carpenter

May I ask my noble friend what will be the maximum number of days, under these amendments, over which the ballot could be spread? Have the Government any views on that, or, indeed, do the terms of the amendments limit that? Secondly, would he bear in mind that although the shipping industry is making, in the view of some of us, perhaps rather appropriately, very heavy weather of this, it is probably a more real problem in the airline industry, where members of the staff are dispersed throughout the world, and moving very rapidly, so that indeed on some days, during different hours on those days, they are both sides of the international date line.

Viscount Trenchard

I believe that the number of days would have to be reasonable and that they would have to be reasonably close together; but we have not defined a maximum number of days at this stage. Sometimes, in Committee work of this kind, Members of the Committee use their minds to conjecture all sorts of possibilities, but I cannot think of a good reason as to why the days should go on for more than a reasonable period, and I feel my noble friend and I would probably agree on that.

Lord McCarthy

I am sorry to keep on about this point, and I do not suggest that the Government have indulged in any sharp practice, because, fortunately, I have available last night's Hansard and it is perfectly true that the noble Earl, Lord Gowrie, said at column 747 of yesterday's Hansard: My noble friend Lord Fencers will be moving amendments on this to make it clear that ballots can be held over more than one day. That will help the communications problems of the shipping industry". So the noble Viscount is absolutely within his rights; that is what the noble Earl said and that is what this amendment does. But it was late at night, and I rather gained the impression that, when the Committee agreed, and when the noble Lord, Lord Mottistone, agreed to withdraw his amendment, which of course went far wider, I think the noble Viscount would admit, than anything in this clause, he had the view, and I think many of us had the view, that the Government were indeed going to go much further than this amendment in fact goes to meet their point.

Therefore, I should like to be reassured once again, quite specifically. It is the case, is it, that this amendment, which indeed allows us to have ballots held over more than one day, is the sole amendment which the Government intend to introduce to meet the points made by the noble Lord, Lord Mottistone, yesterday?

Viscount Trenchard

Though Lord Mottistone's amendment did not specifically refer to it, the discussion touched on the question of the number of days on which a ballot could be taken, and we have had the discussion on that amendment. I know that my noble friend Lord Gowrie has in fact followed up, since that discussion, to check, and, if he finds there is anything that he wishes to alter in what he said, I am sure he will do so now or find an opportunity to do o at a later date.

But the Government do not regard this amendment as the answer to Lord Mottistone's point. It was a point that bore upon the answer to Lord Mottistone's point; and I can assure the noble Lord that, in so far as flexibility for holding ballots on different days is concerned, the intentions of the Government are laid out in the Bill before the Committee now, and there are no other intentions of which I am aware. I myself have certainly said that the transition period, not yet announced, of either one or two years of course provides for time to discuss further with industries of every kind the practical operation of the periodic ballot, and in that sense there could be further discussions with the shipping industry, which I think was a point which we both made on that matter last time.

On Question, amendment agreed to.

8 p.m.

Viscount De L'Isle moved Amendment No. 25:

Page 4, line 6, at end insert— ("() Subsection (3) shall not apply if an industrial tribunal, on the application of an employee to whom subsection (I) applies, decides that the relevant union management agreement has not, or does not allow that employee the right to choose to form or join a union which that employee considers will protect his interests.").

The noble Viscount said: Members of the Committee will agree that we have had some very substantial debates affecting questions of principle. That, I think, is a very good thing. It clarifies many matters which might otherwise have been obscure. The question of the independence of conscience and decision of individuals has become very much a matter subject to debate and discussion. In the debate before the adjournment for dinner, the noble Lord, Lord Wedderburn, said, fairly, when talking about the question of conscience, that it was really the outcome of the new concept of fair and unfair dismissal introduced in 1971 by the then Conservative Government.

I accept no responsibility for that measure, and the more I think about it, the more I think its concept mistaken. Not that I do not believe that a man who is dismissed by his employer for reasons which cannot be justified should not have compensation beyond possibly what he might get under ordinary common law. I think we proceeded on the wrong lines because we have introduced between the employer and the worker a third party, the trade union. Also, we have introduced the question of compensation and valuation of conscience. I say this because my amendment accepts the concept of fair and unfair dismissal but I do not accept that I have to bow down in reference to that for the purpose of this debate.

In the decision of the European Court in Webster and Ors, the majority emphasised that the threat of dismissal involving loss of livelihood is a most serious form of compulsion. It is this serious form of compulsion which we are dealing with in this clause. It says in the same judgment that an individual does not enjoy the right to freedom of association if, in reality, the freedom of action or choice which remains available to him is either non-existent or so reduced as to be given no practical value. May I remind the Committee that, in deciding the rights of the three railwaymen under Article 11(1) had been infringed, it is necessary to remember the words of that article. Everyone has the right to freedom of peaceful assembly and to freedom of association with others including the right to form and join unions for the protection of his interests.

I am putting before the Committee that the Government, now they have gone so far as to adopt the judgment of the court, will join with us; because it says that subsection (3) shall not apply if an industrial tribunal decides that the relevant union-management agreement does not allow that employee the right to join or form a union which that employee considers will protect his interests. That is the criterion on which Article 11 is drawn. I submit that the court having declared its opinion on Article 11. it is the duty of this House (and, of course, of the Government) to give effect to that part of Article 11 which offers a choice to the worker to choose to form or join a union which protects his interest. And it is not a third party who should decide that, but the individual; because the convention expresses in terms that everyone has the right. I do not think I need to elaborate. It seems to me to be necessary that this part of the convention, which is perfectly explicit, should be incorporated in this Bill. I beg to move.

Lord Spens

May I add a word to what the noble Viscount has said? I think we are now moving into a situation where deeply held personal convictions may not have been held for very long. We are certainly moving into a situation where unions are becoming much more political and it can be easily—in my mind—apparent to a member of a union subject to a closed shop that that union has started to indulge in activities that that member no longer agrees with. This amend- ment is aimed at trying to protect that member if he decides now that he no longer can support the union in the closed shop because of the new activities which the union is now indulging in.

The Earl of Gowrie

This amendment—my noble friend will correct me if I am misinterpreting him at all or in any way—seems to derive from the conviction that employees in a closed shop should have the right to form or join a union of their choice—

Viscount De L'Isle

It is not my view. It is the view of the convention.

The Earl of Gowrie

I stand corrected. My noble friend was making the point that it was the view of the convention and therefore it should be enshrined in the Bill. The Government, as signatories to the convention, have sympathy with the principles being raised but I think it would be difficult to enshrine them in legislation and I am also not altogether convinced that that would meet some of the points in the convention in a practical way, as I shall argue in a few moments. The effect in our legislation would be that no closed shop agreement could continue to have legal force at all unless the employees covered by it had a right to join any union whatsoever. Again, the realities on the shop floor or in industry would be that all closed-shop agreements would be driven underground—there is no question that they would cease to exist—and the Government do not believe that that would be desirable; indeed, we should be back in some of the difficulties of the 1971 Act which my noble friend very fairly pointed out at the beginning of his speech.

I think it important to note that any employee in a closed shop can join any independent trade union which is prepared to accept him into membership in addition to the union that he is required to join under the closed shop agreement. He cannot, under new Section 58(1) and (2) which merely re-enacts long-standing existing legislation be fairly dismissed for being a member of that union or taking part in its activities at an appropriate time. Dual membership of unions in a closed shop is quite permissible and sometimes occurs. There is also an important difference between an employee in a closed shop being protected if he joins a union other than the closed shop union and his having a right, which my noble friend's amendment implies, to join any trade union. That would oblige trade unions to accept into membership any individual who applied to join. This would be a very radical and a not very practical departure from past practice.

While the law rightly has been invoked in the 1980 Act to prevent unreasonable exclusion from a union of someone who needs to be a member of that union to get a particular job, it has been thought undesirable always in other circumstances for the law to force a member upon an unwilling trade union, given that the unions are voluntary bodies. There is another difficulty which, as an economist of a kind, would worry me very much. It is common ground, I think, that there are at present, compared to our competitor nations, far too many unions in Britain. That is why mergers and union amalgamations have, generally speaking, been welcomed. We have a specific instance in the industrial landscape at the moment of the problems created by two unions in a single industry.

To encourage employees, as my noble friend's amendment would surely do, to set up new unions or join ones which are not involved in the industry concerned would surely add to that difficulty and also to the complexities of industrial ife. It would present employers with the distraction of more recognition claims, the exhausting job of bargaining with many small unions and the prospect of dealing with increased inter-union rivalry—and I would remind your Lordships that the great majority of strikes in the industrial scene in Britain are often the product of inter-union disputes rather than disputes directly between unions and employers. I think there would also be disruption of agreements between unions as to which union generally recruits in what sector of an industry. These kinds of agreements may not always be universally welcomed, but their usefulness to employers cannot be in doubt and I think that my noble friend's amendment, if adopted, would not be helpful in aiding Britain's economic recovery, or getting us on side with our competitors, which is of course the lodestone of the Government's economic policy. For that reason, if for no other, I would ask your Lordships to reject the amendment.

8.12 p.m.

Lord Wedderburn of Charlton

I think my noble friends and I feel like saying to the noble Earl, "Welcome back, all is forgiven", because at last the Government have acknowledged that there is a problem of multi-unionism and they do not want to enact anything which would increase the problem. We have been trying to impress that on the Government during the last few hours of the debate. Whatever else divides us, we share the conviction of the Government that this amendment certainly would increase the problems of multi-unionism. I cannot quote the noble Earl fully but I am roughly right when I say that we share the view with him that this would mean anyone could join whatever union he wished and it would fragment bargaining arrangements in practice a great deal more. There is also the right of any person not only to join an independent union, which the noble Earl mentioned, but also the right to resign from any union in relation to Section 7 of the 1974 Act, as amended in 1976.

What is particularly important about the debate on this amendment is the position of the developing law in general, which is most germane to the noble Viscount's amendment and also to the Strasbourg judgment. In saying that, I will repeat nothing of the noble Earl's sentiments with which I agree except to say that we agree with him very much that the practical consequences of the amendment would be undesirable. But we were encouraged that noble Lords—most of whom are no longer with us—were before dinner saying that this really must be a Committee stage and not a Second Reading. We agree very much. We want to go through the Bill. Therefore, I shall look forward to reading the speech of the noble Lord, Lord George-Brown, when I can look at it tomorrow dispassionately, as I am sure he would wish.

As to developing law, there is an irony at this time because the Court of Appeal divided in the recent judgement of Cheall v. APEX, the Master of the Rolls, the noble and learned Lord, Lord Denning, declaring in effect that the Bridlington arrangements, to prevent multi-unionism escaping too far into British industrial life with dangerous consequences, was contrary to current policy and void; because of exactly the argument the noble Viscount has put forward, Lord Justice Slade rendering a judgment rather difficult to assess, and Lord Justice Donaldson disagreeing and not wishing to venture into what he regarded as political waters. I have a feeling that this matter may come before the Judical Committee of your Lordships' House in their judicial capacity. What a pity it is that the judiciary cannot refer to speeches in your Lordships' Legislative Chamber when they come to see the matter, because I feel that the speech made by the noble Earl just now would be most valuable to them.

The Earl of Gowrie

I am amazed to hear this rather Denning-like sentence.

Lord Wedderburn of Charlton

It was, of course, the noble and learned Lord, Lord Denning, who had his knuckles rapped for referring to a speech of mine in this Chamber in a recent judgment. Noble and learned Lords will not do that. So there is the point about the common law developing. Therefore, what the legislature does at this point is extremely and doubly important; and it is necessary to say the extent to which we feel—and my noble friend Lord McCarthy has told me he joins me in saying this—that the position put from this Front Bench has not been fully understood, and so it must be clearly re-stated in reply to the noble Viscount's amendment.

We say that the case of the three railwaymen in which the United Kingdom was responsible for acts done by British Rail which are in breach of Article 11(l) does not go anything like as far as is proposed by this amendment, or by the Government—and that we repeat. The noble Viscount has read Article 11(1) that everyone has the right to peaceful assembly and association with others, including the right to form and join trade unions for the protection of interest. He did not read subparagraph (2) where it is stated—these are the relevant words to this case— No restriction shall be placed on the exercise of these rights other than such as are prescribed by law necessary in a democratic society for the protection of the rights and freedoms of others". In the railwaymen's case, the matter was naturally discussed by the judges in their judgment in terms that most Continental lawyers understand and indeed British lawyers have come to use these terms—namely, the positive right to associate and the negative right to dissociate. The central issue argued in the railwaymen's case was the extent to which Article 11(1) by providing a positive right also provided what many Continental and some British lawyers know now as the negative right or the right to be a non-unionist.

One thing is absolutely clear in the judgment, which is that it did not come out for the negative right on which such a freedom of choice must be based. I should like to read from page 52 of the 1981 European Human Rights Report. On page 52 the court said: A substantial part of the pleadings before the Court was devoted to the question whether Article 11 guarantees not only freedom of association, including the right to form and to join trade unions, in the positive sense, but also, by implication, a negative right 'not to be compelled to join an association or a union". Later they say: The Court does not consider it necessary to answer this question on this occasion". A little later on page 54 they said: The Court emphasises once again that, in proceedings originating in an individual application, it has, without losing sight of the general context, to confine its attention as far as possible to the issues raised by the concrete case before it. Accordingly, in the present case it is not called upon to review the closed shop system as such in relation to the Convention or to express an opinion on every consequence or form of compulsion which it may engender; it will limit its examination to the effects of that system on the applicants". Then the court goes on to recall that some notion of freedom of choice must obviously inhere in the right to associate. Some clear area of choice there must be. On page 54 they also say: The situation facing the applicants clearly runs counter to the concept of freedom of association in its negative sense. Assuming that Article 11 does not guarantee the negative aspect of that freedom on the same footing as the positive aspect, compulsion to join a particular trade union may not always be contrary to the Convention". This is a key passage, as I think everyone now agrees, of the judgment: However, a threat of dismissal involving loss of livelihood is a most serious form of compulsion and, in the present instance, it was directed against persons engaged by British Rail before the introduction of any obligation to join a particular trade union. In the Court's opinion, such a form of compulsion, in the circumstances of the case, strikes at the very substance of the freedom guaranteed by Article 11". My noble friend Lord McCarthy has advanced to the Committee the view that this judgment is based on existing employees and the right of existing employees not to be imposed upon. The court then goes on, on page 54, to say this—and I do not wish to be unfair to the judgment in any way; I know that noble Lords are following it and I am happy to be asked to read more: Another facet of this case concerns the restriction of the applicants' choice as regards the trade unions which they could join of their own volition. An individual does not enjoy the right to freedom of association if in reality the freedom of action or choice which remains available to him is either non-existent or so reduced as to be of no practical value". Then they say: Moreover, notwithstanding its autonomous role…Article 11 must, in the present case, also be considered in the light of Articles 9 and 10". Then, in a rather longer passage in paragraph 57, they refer to Articles 9 and 10, which are concerned with the protection of freedom of thought, freedom of conscience, freedom of religion and freedom of expression, and they say that are also the purposes of the freedom of association guaranteed by Article 11. Then they say: Accordingly it strikes at the very substance of this Article to exert pressure, of the kind applied to the applicants, in order to compel someone to join an association contrary to his convictions". In this further respect, therefore, the treatment complained of as regards Mr. Young and Mr. Webster constituted an interference with their Article 11 rights. Of course, they there touch on the problem of Mr. James, whose quarrel with the union was wholly industrial, and which the court, I suspect, saw at a very late point. But it really did not fall within this at all.

The Earl of Gowrie

I am grateful to the noble Lord. I followed him most carefully and he has led us through the judgment of the court, in order to show his reasons for rejecting the amendment in the name of my noble friend. But the ringing way in which he reads out this judgment of the court suggests to me that he must implicitly accept it, and he must therefore, by inference, accept that the legislation with which he was very closely associated in 1974 and 1976 was a monstrous violation of the kind of freedoms which my noble friend has spent such a time trying to uphold.

Lord Wedderburn of Charlton

Of course, I do not accept it in those terms. What I say is this, as a matter of history and not just as part of a party battle this late at night. The noble Earl will know that this judgment is not technically binding on the United Kingdom Government. If you regard it as morally binding, you have to search for what the lawyers call ratio decidendi. I join with him and entirely agree that the ratio decidendi is that existing employees should be offered the choice and not made to join the union on pain of dismissal.

That is what I am saying and that was not enacted in 1974, because the noble Earl's party did not put it in, although they had a majority of two to one. They put in what they wanted and they put in objections on reasonable grounds. They did not put in existing employees. So if neither of us foresaw this judgment, we are both to blame. But we can discuss that on another occasion. That would be a nice conversation elsewhere.

The noble Earl has led me to the point which is most important, because, first, I object to the Government's handling of the case in the court. I should say immediately that I should have declared an interest—I apologise to your Lordships—because I was asked to go and present evidence for the Trades Union Congress. I repeat that I went and gave evidence. The court did not allow us to plead and did not allow us to argue principles of law or interpretations. Hard though I tried to make my evidence into pleadings and interpretation, the learned judge was quick enough to stop me before I got into my second sentence. However, I saw the case and, although before dinner it was being suggested in some quarters that to know something about things was to be at a disadvantage, and even to be an expert was positively to expel one from the Chamber, I can only offer my impressions.

One of the things that are important in this case is that the Government did not present the case as one based on conscientious grounds; they did not refer at all to that in their memorial. The Government presented it as unfair under the 1980 Act provisions, and I quite see that they relied very much on existing employees. But then they had the European Commission's report before that, and they thought that that was the way the wind was blowing. But they did not distinguish, either, between the three different types of complaints and did not do what the noble Earl did tonight.

With no disrespect to the Solicitor-General, how I wish that the noble Earl had been in Strasbourg. I quote from a note which I wrote two days after I came back from Strasbourg and recovered. I wrote: Neither the Government nor the court seems to be interested in the possibility of dual membership. I wish we could have put it in". I wish that the noble Earl had been there. He would have put it in. The court had never heard of dual membership. It was only on the last day that the President understood the fact that members of British unions could contract out of the political levy. So the case was not very satisfactory.

This goes to the noble Viscount's amendment, because he may be saying, and I suspect that he is, "That is all very well, but what about those words' choice 'and' conviction', because the words appear?" My first reply to that is that they are linked to existing employees. He and his advisers may disagree with that. But there is a second point. The court at Strasbourg went hunting after choice on the basis of the natural affinities of lawyers from regions where trade unions are divided ideologically between political colours. It is very hard for me, for the noble Earl or for the noble Viscount to understand the position of the Italian trade unions, because they are divided between communist, Catholic, socialist, social democrat, neo-facist and so on. It is very different and if you have that sort of unionism ideologically, you must allow for choice. Whereas our sort of multi-unions, with the problems which the noble Earl has so well outlined tonight, demands a rather different appreciation and discussion. That was never put to the court.

Here I criticise the Government and this is my first major point against them—I have to have one. The Labour Government put to the Commission and wished to put to the court the argument that, if we had violated paragraph 1 by mistake—and this goes back to the noble Earl's point about our legislation and it is relevant to that as well; I accepted it at the time, but what I am saying is also as relevant—then paragraph 2 was important and must be properly argued. Paragraph 2 states that you must not have restrictions on the right to join trade unions and associations, unless they are proscribed by law, which is necessary in a democratic society for the protection of the rights and freedoms of other people.

I know, almost instinctively, where each of your Lordships will stand on that sentence. All I am saying is that it was to be argued, and the Government's first act in the Strasbourg court case was to withdraw the paragraph 2 defence from the court. Indeed, the court itself and the Commission said that the new Government was not willing to have paragraph 2 argued and, that they withdrew the memorial of the previous administration on the point. The court said that although it would look at the matter independently —and it made a few remarks about paragraph 2—it was not able to comment upon it. It said—and this is later on in the majority major judgment—that it could not deal with the matter properly, because it had not been argued by the Government concerned. Indeed, the Greek judge, who delivered a small addendum on this, very tellingly said: The court cannot declare legitimate for the purposes of Article 11(2) a domestic measure which the State itself has no wish to regard as such". and of course that was the position by the time the Government withdrew the defence.

So we have existing employees as the basis of the Strasbourg judgment, and remarks about choice in the context of existing employees—because it is there and you cannot get rid of it from the judgment, in so far as it goes anywhere beyond that at all—a defence which the Government withdrew. I am not a betting man and I do not know what are the odds, but I should like to have a go at the other area beyond existing employees, which are very difficult to define. In a multi-union situation mean something like Bridlington, something like the trade union principles which, after all, the Government have in their closed shop code of practice said that trade unions must have regard to, and which must be the basis of organisations affiliated to the TUC to operate.

When you try to get the courts to understand that as well as the Government understand it, there must be some area of inter-union practice where the choice of the individual has to be put aside. I put it no higher than that for the purposes of the argument. It certainly clearly shows that the Strasbourg judgment does not provide the ammunition which has been used quite wrongly—wrongly in law, wrongly in industrial relations practice and wrongly even in morality in terms of what the trade union movement actually does. The Strasbourg judgment is authority for the points I have suggested and it will be the duty of another administration, if a similar case ever arises, which I hope it will not, to argue paragraph 2 properly and to see what the full judgment of the court at Strasbourg would bring.

Lord Campbell of Alloway

I hope your Lordships will forgive me if I do not follow the noble Lord, Lord Wedderburn, along the lines of the detailed analysis of the Strasbourg judgment. I have read with great care the majority judgment and the minority judgment at least half a dozen times and with the utmost respect I do not accept his analysis. May I leave it at that. It is for noble Lords to form their view about it. But coming to grips with the amendment, the situation surely is that this amendment carries with it the concept that we should outlaw the closed shop as such, without qualification. If that is the case, I wish to say to your Lordships that that is, and must be, a wholly unacceptable suggestion, a wholly unacceptable concept. Although in countries such as Germany I understand that the closed shop is outlawed, it is a totally different regime. In our regime, with our history, with the way that the trade unions have grown and developed, it would be an unwarranted outrage to introduce a provision of this nature. That is why I would reject the amendment and would support the views which have been expressed by my noble friend the Minister on the Front Bench.

Viscount De L'Isle

I do not want to get into a detailed argument about the judgment of the court. I do not accept Lord Wedderburn's remarks about it. I rest upon the fact that we acceded to the European Convention of Human Rights. Under the Labour Government. individual applications were allowed. I argued in the 1980 debates that under the convention the closed shop was not permitted. I still argue that. If we are going to say that we accept the convention but not the judgments, that is one argument. Perhaps the noble Lord would tell us whether he does. If he does not submit to the jurisdiction of the European Court and of the Commission, then we should know. The judgment of the European Court in this matter was deliberately narrow. The noble Lord, Lord Wedderburn, said that they narrowed it by saying "assuming". They did not say "We assume". Assuming that the article does not guarantee the negative aspect of that freedom, compulsion to join a particular trade union may not always be necessary to the convention. They narrowed it on the particular point of law which was pleaded before your Lordships.

As to the attitude of the noble Earl, Lord Gowrie, both the Labour Government and their Conservative predecessor argued continuously and strenuously over a very long period that Article II was not violated. They did it on some of the arguments. I am not going to delay your Lordships; I have not brought the Solicitor-General's argument before the court, but some of it was very like that of Lord McCarthy and Lord Wedderburn who were present. The fact is that we have entered into a commitment, like it or not. The noble Lord, Lord Wedderburn, read an extract from a minority judgment or comment by the Greek judge. May I read from the concurring minority judgment of four or five judges, including the French and the German: We voted in favour of the operative provisions of the judgment, but the reasons which it contains do not appear to us to reflect properly the scope of freedom of association as guaranteed by Article 11 of the convention". Later it says: In our view, the mere fact of being obliged to give the reasons for one's refusal constitutes a violation of freedom of association…The giving of notice or dismissal—which was a consequence of the system instituted by the law, did not give rise to but simply aggravated the violation. The violation, already constituted by compulsion…is irreconcilable with the freedom of choice that is inherent in freedom of association". In my opinion, in due course that will become the law when other cases come before it. At least the judges have the same authority, if not superior authority to the noble Lords, to make their own decisions plain. They are judges and we are politicians. I beg the noble Lord to put himself in the position of a member of the Government who has accepted the convention, like it or not. In my view, the convention does not permit the closed shop, as exercised in this country. The convention states the right to join and change trade unions. If that is incompatible with the system as it is now, that system is incompatible with the convention. I shall withdraw my amendment and return to it at Report. The noble Lord cannot have it both ways. He was extremely derisory about the case when we debated it previously. He says he now adopts it. In fact, he has not adopted it; he has adopted those parts of it which suit him and left the others on the dustheap.

Lord Wedderburn of Charlton

Before the noble Viscount resumes his seat, may I say that I am sure we are in accord. The minority judgment which he cited was the judgment of six judges agreeing with the majority but going much further in one direction. The Greek judge made a few remarks which agreed with the majority. So that we remember it, and I hope that the Government pay due attention to it, there was also the dissent of three of the Scandinavian judges, if we include Iceland in that description, which I regard as being brilliant. I hope that the Government will read it carefully. They dissented and thought we were not in breach of the convention on any point whatsoever. I am sure that the noble Viscount will want the Government to look at all aspects of the judgment—the mainstream one, the six hard core, and the three dissenting, brilliant minority.

Amendment, by leave, withdrawn.

8.38 p.m.

Lord Wedderburn of Charlton moved Amendment No. 26: Page 4, line 18, at end insert ("or to his failure to pay a subscription due to the trade union").

The noble Lord said: This is a very small point and can be moved very quickly. It relates to the question in the context of the Bill which all noble Lords will have seen, and therefore I shall not try to describe it: the question of when a member of a union is at fault. It is true that to some extent what is related in the Bill is being at fault in not being admitted, but many trade union situations involve readmission. Therefore the question of whether he is at fault in any way in not being readmitted may raise the point on the Marshalled List. We took issue with the Government over Section 4(9)(b) of the 1980 Act. They allowed for any event which caused membership to cease as an expulsion. We pointed out to them that in almost every major trade union rule book there is a rule that after so many weeks of non-payment of arrears of subscription the membership lapses, sometimes in two stages: going out of compliance for benefit and then lapsing completely. There are figures about exactly how many weeks this is. One finds that 13 to 26 weeks is the usual kind of period, though I dare not mention the source of that research, since I see that the noble Viscount is going to reply.

We felt that the Government was rather insensitive regarding this issue in the 1908 Act. We do not see why they should be insensitive here. They left the clause in the 1980 Act. They said they thought that tribunals will be sensible about it. This is not a matter which the tribunals can be wholly sensible about without a lead from the legislature. In this very limited situation where the member has the disadvantage of being at fault in not being readmitted, if I may take that as the main case to which the amendment is directed, surely one of the situations in which he should be regarded as being at fault is non-payment of money to the extent of arrears which caused his membership to lapse. In most rule books—and I think in every one I have ever seen—there is a rule saying that it is the responsibility of the member to keep up his subscription. One does not rest entirely on that, but it is there. If it is not a mistake on somebody's part, which can nearly always then be put right, it is perhaps a matter of the individual in a mobile workforce moving from site to site.

It is not just a matter of interest to trade unions. It is also a matter of interest to employers, because the only way in which a mobile workforce can be rescued from trade union chaos in some areas—on construction sites, for example, in some types of work—is where the worker goes from site A to site B. Site A is the Transport and General Workers' Union, and so he joins that. Then he moves to site B. He may take a holiday in between and has perhaps lapsed by the time he signs up for another union, which will make the necessary inquiries under the Bridlington arrangements. Many such arrangements would not work unless when the inquiry came through they said, "Yes, he has lapsed," and that is the end of that. If that is the case, and not wishing in any way to disadvantage that sort of arrangement, we hope that the Government would feel able, for the sake of the few workers to whom it would apply, to show willing and to show that social realities of that kind are recognised, in that someone who fails to pay a subscription should be regarded as being at fault rather more than the union.

Lord Kilmarnock

Before the noble Viscount replies, I wonder whether I may seek the advice of the noble Lord, Lord Wedderburn of Charlton. This amendment seems to me to introduce an element of policing the union rule book by statute. I am not going to argue against the amendment on those grounds. Later in the Committee stage I believe there will be areas where public policies should influence the union rule books.

It occurs to me that there is the possibility here of uncertainty, because surely it depends on the rule book whether someone in arrears is or is not a member of the union and continues or does not continue to be a member of the union. I understand that, in some cases, if a person is in arrears, then he loses his benefits but not his membership of the union. In that case, obviously, he could not be fairly dismissed for non-membership. In other cases, in other unions and according to other rule books, it seems to me that he might qualify for fair dismissal. Is there not a danger that this amendment would introduce confusion and bring the law into disrepute?

Lord Wedderburn of Charlton

I do not think there is any risk in this amendment of controlling the union rule book. On the contrary, what I am saying is that, if a trade unionist was reading as carefully as your Lordships do—heaven help him !—a Bill of this kind and came to the point where he said, "I am going to be at fault", he would ask, "Who is going to be at fault if I am not readmitted? Obviously, they will include lapsing I have just been discussing with my noble friend Lord McCarthy the words used in case I get them wrong, because in practice he is much closer to the ground than I am. The words used are "lapping" automatic ceasor",and" automatic termination". These are the phrases which are used. I would chance my arm and say that in every major trade union rule book one will find a period beyond which there is loss of all or some benefits and beyond that a period after which one's membership runs out. That is the structural arrangement.

Those periods differ, and indeed it is the very point of this amendment that failure to pay a subscription leads to a cessation or termination of membership only according to the democratically-decided period of the particular union. It is not to control the rule book; it says that you can have such a rule or you need not have such a rule. It is not even like Section 9(b) of the Government's 1980 Bill, which says that that provision counts as an expulsion, which most trade unionists would resist vigorously. It does not control at all. This controls nothing. It only says that, in looking at the matter of fault, the one thing that trade unionists will expect to find is that someone who had run out for arrears, as it is sometimes put, is at fault. All I am asking the Committee to do is to recognise that as a fact of life.

8.45 p.m.

Viscount Trenchard

I am still a fraction puzzled by the case which the noble Lord, Lord Wedderburn of Charlton, sees. I believe that this amendment is unnecessary and, in order to give the reasons for thinking that, I must just go over again with the Committee the situation with which we are dealing under subsection (9), at the end of which the noble Lord wishes to add the sentence in his amendment. Subsection (9) comes into being, and its purpose is to ensure that, in a case where there has been a wrongful expulsion from a union—an unfair expulsion from a union—which under Section 7 has been sub judice (and if I am shortening too much, I know that the noble Lord will correct me, but I do not think I am), we would then reach the situation which is the reason why we want subsection (9) to be included—that is, there is a possibility that, even though the tribunal rules that the expulsion or exclusion from the union was unfair, nevertheless (we know of a number of cases) it might be legally found that the dismissal for failure to be a member of the union was fair. Subsection (9) makes clear that, if the olive branch—if I may call it that—has been offered following the tribunal, and the union has offered membership back to the individual who has been found to have been wrongly expelled by the union, the dismissal would still be allowed to stand if the employee did not accept the olive branch and did not return to the membership from which he had been expelled or excluded unreasonably.

Provided he did accept membership, this question of his fault would not arise. The definition of his fault is intended to cover a situation where, when offered this olive branch after a tribunal, he says, "No, I do not want to be a member." In that situation, an employer would be protected if he had dismissed the individual, and the dismissal would remain fair. What the amendment of the noble Lord, Lord Wedderburn of Charlton, seeks to do is to add specifically to that situation the hypothesis that the individual might say, "Yes, I would like to be a member again and then my dismissal would be unfair—but no, I will not pay my subscription." If he were to say that, it is my advice—and I doubt if the noble Lord would disagree with me—that this would become a simple question of his failing to pay his subscription; a classic situation in which expulsion from a union will almost always be reasonable, as I understand it. If there are other circumstances, those other circumstances may intervene, but there is no question here of impinging on the question of a union member having to pay his subscription.

The noble Lord, in the way in which he explained the purpose of his amendment, mentioned the time point in the rule books. He mentioned that these points vary and that sometimes a large number of weeks could elapse before a union would say, "We have given you enough time to pay your subscription." If it is in the noble Lord's mind that we need an instant payment of subscription in this instance, then I believe that this would be impinging on how the rule book should work, and would be suggesting that, if the expelled member accepted the olive branch and went back, a special rule should apply to him as to how quickly he should pay the subscription. That is the only way in which I can see the noble Lord's amendment is necessary.

I hope very much that, on reconsideration, he will agree with me that it is not necessary and that there is no possibility of this amendment—which says it is his fault if he does not rejoin the union when the wrongful expulsion has been ruled upon—being necessary; there is no possible way that that can bring into question the need for union members to pay their subscriptions.

Earl De La Warr

Oh dear! I feel very sad that my noble friend cannot accept this simple amendment. It makes me feel that enormous numbers of man-hours must be spent in the department making absolutely certain that every single suggestion, however simple, must be blocked in some way. I have followed this very carefully and I remember very well the discussion that took place on Clause 4 a couple of years ago in the 1980 Bill. Here is a classic case. Sometimes it is a good idea to give away a little on something. That is not flippant; it is the truth. So far as the noble Viscount's argument is concerned, it got very abstruse considering the simplicity of the case that was originally put up. I think that my noble friend really should say to himself, "Here is a case where the Bill could not possibly suffer if I just for once gave way; if that is what the Opposition wants, perhaps that is what I had better do".

Viscount Trenchard

I wonder if my noble friend has understood what admittedly is perhaps one of the most complicated parts of this clause, because it depends on Clause 7 and what happens there, and then on Clause 9. There is no question of giving away a little. This covers a situation where a wrongful expulsion has been ruled on and as a result of it the union has said, "Come back, my noble friend, into the union". The clause says that if he does not say, yes, then a dismissal that might have been made could still be fair; after the judiciary has ruled in his favour and the union has accepted it and offered him his membership back he says, no, in which case his dismissal would remain fair.

What the amendment adds to that is that not only would it cover the situation where he says, "I will not rejoin the union, even though I have got a ruling in my favour and have been offered membership", but instead of that, because the word is "or", it can be done if he has not paid his subscription. Well, he will not pay his subscription if he has not rejoined the union, because quite clearly he will not be a member, in which case he is liable to dismissal. Whereas if he has rejoined the union the question does not arise. It then becomes a question of the union rule book about his subscription, and if he fails to pay it in accordance with the rules, he is out and the tribunal would uphold that.

Lord Jenkins of Putney

I wonder if the noble Viscount will perhaps consider this situation. The circumstances in which subscriptions lapse and are then recollected are various. On the whole, trade unions are anxious to provide the possibility for maintaining the universality or the 100 per cent. of their membership. Therefore, they are usually ready to bend over backwards in order to ensure that a membership ready to be resumed is resumed on reasonable terms. One knows of many circumstances in which perhaps during the course of a disagreement or dispute arrears will have mounted up, sometimes to £7, £8, £9, £10, nowadays with subscriptions as high as they are, £40 or £50. Under these circumstances, if a member indicates his readiness to return this amount quite often will be commuted; a lump sum payment of perhaps £5 or £10 will be accepted, and the arrears which have accumulated will be commuted. The sum will be paid and the membership will be restored. It seems to me that it is to provide for circumstances of that kind that my noble friend suggests this amendment. I hope that on consideration of what actually happens in the practicality of the situation the noble Viscount will be persuaded by the arguments of his noble friend on the Back Benches and will decide that the amendment proposed by my noble friend should be accepted.

Viscount Trenchard

I really am not trying to be difficult. I do believe I have understood the situation. The noble Lord, Lord Jenkins, now suggests that there should be an obligation, if the man has been wrongfully expelled, that when he is offered his membership back he should pay the arrears of subscription during the period he has been expelled. I do not know whether the noble Lord means that, but I would have thought that that was a rather unreasonable thing to do. If he has been expelled wrongfully, the subscription would become due from the date at which the olive branch is offered and he accepts it, rather than through his fault refuses it. Then comes the question when should it he payable. If you are saying that it should be payable instantly, then you are making a special rule for the payment of subscriptions, when a man rejoins the union, at the time he does it. I do not feel that that would be appropriate in an Act of Parliament.

Lord Wedderburn of Charlton

I can see that the Government are not going to give way, and we want to make progress. Perhaps I can say this. My noble friends and I have been trying to think of the perfect illustration for the noble Viscount. We cannot give him the perfect one. I am grateful to my noble friend Lord Jenkins, because he referred to the kind of case we have in mind. It is not a case where somebody is wrongfully expelled, which the noble Viscount seems to understand my noble friend to say, which he did not. It is the case where the man has left the union, if you like has lapsed for non-payment of arrears under the rule hook. Then there is the question, which Section 4(9)(b) of the 1980 Act allows for, of some argument about wrongful exclusion or a wrongful refusal of admission, and where proceedings are pending under subsection (7), here on page 3, he can be in the good position unless he is at fault. The question then is, when is he at fault.

Subsection (9) says that he is at fault in the circumstances there set out. We are not quarrelling with those. What we say is that a phrase should be added so that he is at fault where it is attributable to his failure to pay a subscription due to the union. Of course, that can include arrears. I do not know whether the noble Viscount belongs to a club, but if he gets into arrears, I would be surprised if there was not a rule whereby his membership became defective. The noble Viscount is not—I am glad. It is just the same with a union. When he comes forward for readmission they quite often say, "You are in arrears; you lapsed; you had better pay them up". That is normally what happens with most organisations— Pay up your arrears". It is true as my noble friend says that it is sometimes commuted. Indeed, if I may use personal experience, in the Independent Review Committee of the TUC we had just such a case, although it was rather more complex—

Viscount Trenchard

I wonder if the noble Lord would let me intervene for a few seconds?

Lord Wedderburn of Charlton

Yes, if the noble Viscount wishes?

Viscount Trenchard

I think that it may help—at least I hope it will help. The noble Lord has quoted from subsection (9) which begins: For the purposes of subsection (7)"— which is why I went back to it. When we go back to subsection (7) we find that subsection (7)(a), for instance—and it is explained further in (b)—says: there was in force a declaration made on a complaint presented by the employee under Section 4 of the Employment Act 1980 (unreasonable exclusion or expulsion from trade union)". Subsection (9) stems from: (unreasonable exclusion or expulsion from trade union)".

Lord Wedderburn of Charlton

It goes on to say, "or (b)".

Viscount Trenchard

Yes, it says: or (b) proceedings on such a complaint"— which is the complaint to which we have just been referring under (a)— were pending"— proceedings on a complaint were pending for exclusion or explusion. It is in those circumstances that I think that the olive branch is certainly in the main a fair analogy of what the Government intend.

Lord Wedderburn of Charlton

I was in my last sentence, but I am grateful to the noble Viscount for proving to me that he does, indeed, understand the Bill. I entirely agree with every word he said. Let us take a simple case—a case where proceedings are pending and the complaint is: "I was improperly excluded". It involves a lapsing and whether that be the only reason does not matter for the moment. That is the complaint and it is pending. The issue arises: Is he at fault through not accepting an offer of readmission? That brings into play subsection (9). Obviously we cannot agree on whether the Bill does that. I believe that it does. I believe that the question of fault is relevant. I am very impressed with the fact that noble Lords in many parts of the Chamber have seen that a simple fact of trade union life—the failure to pay subscriptions—ought to be recognised by the law as fault, just as much as the circumstances which the Government have chosen to put in which I have not criticised but could have criticised. The best thing to do is to let the amendment lie on the record as something which we have moved. As the noble Earl, Lord De La Warr, said, it is a small thing. It gives me the opportunity of apologising most humbly to the noble Earl for misdescribing him by name yesterday in a debate. As he said, it is a small thing, but something one should have thought they could have accepted. We shall leave it where it lies.

On Question, amendment negatived.

Viscount Trenchard moved Amendment No. 27:

Page 4, line 25, at end insert— ("(10A) Where the reason, or one of the reasons, for the dismissal of an employee was—

1. (a) his refusal, or proposed refusal, to comply with a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his failure to become or his ceasing to remain a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments; or
2. (b) his objection, or proposed objection, (however expressed) to the operation of a provision (whether or not forming part of his contract of employment or in writing) under which, in the event mentioned in paragraph (a), his employer is entitled to deduct one or more sums from the remuneration payable to him in respect of his employment;

that reason shall be treated as falling within subsections (1)(c) and (3)(b).").

The noble Viscount said: In moving the amendment which stands in the name of my noble friend, let me try to explain as shortly as possible, bearing in mind the time, the purpose of this amendment which I hope and believe will be non-controversial. It is to cover those situations where there has in the past been an agreement made with an employee who, for one reason or another, did not want to become a member of a trade union, that he might consider paying the equivalent of his union dues to a charity or even paying his union dues, or an equivalent amount to the union, but not being a member of the union. It appears that, now that we have put the new Bill before Parliament, which includes the provisions under subsection (1)(c), which we discussed at great length and also under (3)(b), the need for this kind of arrangement is perhaps no longer there. Therefore, this clause is to cover a situation that if an agreement, which had either been entered in an employee's contract of employment or in writing in another form. had been made for him to pay these monies to a union or to a charity, it will not be a condition for his fair dismissal if he has refused or objects or proposes to object to continue to make these payments, now that his position is covered, or not covered, under the Act in relation to subsections (1)(c) and (3)(b). I beg to move.

Lord McCarthy

I am afraid that we do not find this a non-controversial issue in the Bill at all. The fact is, as the noble Viscount says, that it was previously —admittedly, in some ways there was a doubtful legal situation—thought to be possible to operate an agency shop agreement despite the provisions of the 1980 Bill and despite the provisions of this Bill. Indeed, in the Industrial Relations Act 1971 the previous Conservative Government made particular provisions to see that an agency shop agreement was possible. It is perfectly true that this agency shop agreement was only possible within the context of a registered union. Nevertheless, to us, at least, this is a perfectly acceptable way of dealing with a number of problems which noble Lords have repeatedly said that they are concerned about—namely, the problem of conscientious objection.

It is a way of dealing with the problem of the free-rider. Trade unionists say that they resent the position of the free-rider who is not making a contribution to the running of the union while gaining benefits from the union, and yet this free-rider may have a genuine conscientious objection to being a member of the union. Therefore, trade unions say, "Why cannot he join the union?" The answer is that, if he does not want to join the union, he can pay a subscription or sum to the union which is the equivalent of the union subscription, or, if he does not want to do that, as was provided in particular in the case of the Industrial Relations Act 1971, he could make that payment to a charity.

I do not understand why at this moment in time the Government should want to make that more difficult than it already is. It seems to me that this is one of the ways in which to deal with some of the problems that we have now been discussing for two long days. Why should they want to make it more difficult than it is to operate agency shop agreements? We do not regard this particular amendment as uncontroversial at all.

Viscount Trenchard

I do not think that the amendment has the effect of making any arrangement which may be made with the agreement of both parties difficult or impossible. The new Bill—and we have debated many of the clauses—discusses the areas where a dismissal in a closed shop situation is regarded as fair and the areas where it is regarded as unfair. We are really saying that these have changed; we have discussed them. In the areas where a dismissal would be unfair, the employee's agreement in the past, when he was not protected as he will now be to make a payment in lieu, either to the union or to a charity, is overtaken by the Bill. In that condition he can use, if he wishes, the protection of the new Bill. If in some situations—not in all—the new Bill allows him the protection of not being dismissed in certain circumstances, without it being unfair, then the fact that there was an agreement previously to pay an amount should not take precedence over the new law when properly enacted. Therefore, I beg to move.

Lord McCarthy

I am still trying to understand what the noble Viscount says and I hope that he will bear with me. He is not saying that in some way this Bill protects people who might want to operate agency shops. He is not saying that this Bill, except in respect of the clause that he is placing before us at this moment, in itself would make agency shops unlawful. As I understand him, he is saying that in order to be sure that agency shops are unlawful and come within the provisions of this Bill, he needs to have this amendment.

Therefore, he is proposing to go further in making trade union membership and union membership agreements outside the law. That is not an uncontroversial thing to do; it is an extremely controversial thing to do, because at the last minute the Government are taking away one of the best defences for conscientious objection. They are taking away one of the best ways of seeking to reconcile the position of free riders and what trade unionists feel about free riders, with the perfectly genuine feelings that some people have that they want conscientiously to object to trade union membership. As my noble friend Lord Oram said yesterday, this is a genuine way of sorting out the sheep from the goats. It is one way of finding out who really have conscientious objections, and the Government want to take it away. If they cannot give a better reason than this, we shall divide on this amendment.

Viscount Trenchard

Perhaps I am not being clear, but I want to make it very clear that this amendment does not make a charity option or a payment unlawful within an approved closed shop situation. Therefore, the noble Lord, Lord McCarthy, is not correct in saying that we are effectively outlawing—I think that he used words to that effect—this practice. I have deliberately not used his term "agency shops", which I think is a wide and sometimes argued description. We are dealing with all the agreements that may have been made in the past and we are altering them only if an employee wishes to see them altered in an area where the new law gives him a protection. But where it does not give him a protection, where a closed shop has been legally approved for the purpose of this clause, then any number of agreements to pay in lieu would still be possible if the trade unions and the management concerned were to adopt the kind of flexible approach to which I know the noble Lord has subscribed. So, with that further explanation, perhaps I could once more try to move this amendment.

Lord Jenkins of Putney

May I ask the noble Viscount to clarify the situation further? It is rather complex. Let us assume that an agreement has been reached under which an employee will agree to make a payment to a charity of some organisation, some other body, in lieu of paying a union subscription. Let us suppose then he fails to continue that subscription to the charity. Will the noble Viscount tell us—and I am not clear on this—precisely the effect of his amendment in those circumstances?

Viscount Trenchard

It depends whether he is an employee in an approved closed shop within the meaning of the Act, in which case if he does not wish to be a member of the union he has, under the various provisions, to make out his case for it; but, if his case does not fit, then it would be an option for him to continue, if the union agree, to pay a payment in lieu of membership. If indeed this employee is outside an approved closed shop, or completeely excluded from the need to be a member, then in those circumstances he need not adhere to paying these subscriptions. If he does not adhere to paying those subscriptions in that situation, a dismissal would be unfair.

Lord Wedderburn of Charlton

Further to the point the noble Viscount has clearly put to us, we now realise the division between us and the Government on this much more clearly. The point is that the agreement made, freely entered into outside a closed shop, to pay money to a charity in some agency arrangement outside a closed shop, if anyone after this Act decides to welsh on that then his dismissal is unfair irrespective of unreasonableness. If it was simply a good reason for dismissal so long as the employer acted reasonably in dismissing, that would be one thing, but it comes within 58(1)(c) and therefore the mere fact of refusing, followed by the dismissal, end of the case, unfair. That I should have thought is most unreasonable. If the Government had gone half way towards unfair dismissal I could see the point. To go the whole way on these amendments is much more extreme than I had ever realised.

Viscount Trenchard

I believe we have gone half way and we are giving employees their full rights under the new Act. We wish to make clear that an employee who has entered into an arrangement in the past when he did not have the protection of this Act cannot be dismissed fairly if he does not wish to continue it. Outside a closed shop why should an employee have to make a charity payment. The purpose of our amendment is to make sure that he does not have to in a situation outside the closed shop.

Lord McCarthy

This answer is not acceptable. The noble Viscount is seeking to narrow the area of union membership agreements. He is doing it late at night with a recent amendment, and we must divide the Committee.

9.18 p.m.

On Question, Whether the said amendment (No. 27) shall be agreed to?

Their Lordships divided: Contents, 67; Non-Contents, 26.

Resolved in the affirmative, and amendment agreed to accordingly.

9.26 p.m.

Lord Spens moved Amendment No. 28:

Page 4, line 25, at end insert— ("() No union membership agreement may be cited in any proceedings before an industrial tribunal or a court unless the agreement is in written form and incorporated in the contract of employment of every employee to whom it is alleged to apply.").

The noble Lord said: My noble colleague has asked me to introduce the amendment for him, and I shall be brief about it. I want to say first of all that I detest closed shops, and I am only sorry that Her Majesty's Government have not seen fit to abolish them or make them illegal under the Bill. But the fact is that they have not, and so we want to do what we can to make certain that any employee who finds himself involved in a dismissal under a closed shop arrangement is absolutely aware of the conditions of the union membership agreement under which he is being dismissed. The amendment speaks for itself. We want to make sure that the details of a union membership agreement are in written form and are incorporated into the employee's contract of employment.

If your Lordships cast your eyes to the amendment that we have just passed, Amendment No. 27, you will see what I mean. Both paragraphs in the amendment refer to a contract of employment whether or not in writing, and that kind of thing. Obviously, there is doubt at the moment as to what the union membership agreements involve, and we want to make quite sure that every employee is absolutely aware of to what he is to be subjected. I beg to move.

The Earl of Gowrie

As we would expect of him, the noble Lord, Lord Spens, gave a ringing denunciation of the whole principle of the closed shop, and undoubtedly analysed from a certain distance, the principle is, I think, a distasteful one. Nevertheless, it has always been the Government's view that reforms of the industrial relations system in this country should proceed with the grain of our industrial relations system and history, rather than against it. If that is a somewhat lofty or philosophical position, I would add that it would also seem to us sensible not to enact legislation which it is quite clear both unions and managers, or employers and workers, would collude together to evade. Therefore, we wish primarily to try to protect individuals from the abuses which can arise through our industrial relations system, which is a product of our industrial relations history, rather than turn upside down a series of freely-entered-into agreements between employers and unions, which in any case I think would be extremely difficult to do.

It seems to me that in some interesting ways the noble Lord and his friends are very continental, rather that British, in their thinking about law, but I just throw that out as a footnote and we might argue it another time.

This particular amendment would provide that in cases of alleged unfair dismissal for not being a union member in a closed shop there would be no protection against the unfair dismissal claim unless the closed shop agreement was in written form and was incorporated into every employee's contract of employment. Put that way, it sounds sensible enough; but again, the grain of our industrial relations system in this country is that there is no requirement to make written contracts of employment, and nor, unless they are specifically so stated in writing and in a contract, are such employment arrangements regarded as legally enforceable. It would seem to us a mistake to formalise one particular kind of collective agreement under our open and free system—that is to say, closed shop agreements—in a context where you are not formalising other kinds of agreement. Surely it would be wrong to single out closed shop agreements for this kind of special treatment, principally because we do not in fact think that to do so would have any very beneficial effect in practice.

I think, again at the risk of going into lofty areas of principle, if one looks at British reforming history one sees that the reforms which have been most effective and the reforms which have stuck have been the reforms which have gone with the grain of our system and our practice in this country, rather than reforms which have been prescriptive as such. Also, in this Bill we do not aim to surround the closed shop with so many obstacles as to make it entirely unenforceable or unworkable. This is not a burrowing Bill designed to undermine the ground upon which UMAs are freely agreed between unions and employers. This is a Bill, as I said at a previous stage of this Committee, which is designed to protect individuals who are caught between the big battalions—and this we effectively do. We proceed step by step, abuse by abuse. Where noble Lords can show us abuses, we try to proceed against them. Surely that is the British and empirical way to proceed, and I hope that the noble Lord will at least share that philosophy of ours.

Lord McCarthy

The noble Earl comes back, and not only does he come back but he agrees with us. The only trouble is that he still talks about step by step, and so we have visions of the Secretary of State in another place and his seven-league boots. It is because of that, I am afraid, that we have to say why we agree with him in rejecting this amendment, because with great respect I do not think that even he has the full horror of this.

The fact is that what has come to be wrong with the closed shop is that it has become increasingly formalised. When I looked at the closed shop 20 years ago, the closed shop was four-fifths informal—that is, formal collective agreements, whether or not in contracts of employment, were very much the exception to the rule—and very largely because the closed shop was informal the closed shop was operated in a very civilised way. Nobody made distinctions as to conscientious objections or deeply-held personal convictions; nobody asked about ballots; nobody even worried very much about whether or not people were existing employees. They operated the closed shop in an informal and civilised way, and for the most part they waited until they had 100 per cent. membership without a union membership agreement, although they did not call it that—voluntary union membership—and then they went and registered the fact.

That was by far the most civilised way to operate the closed shop; and because of unfair dismissal—I am not against the introduction of unfair dismissal, but because of it—we have had to face this very difficult problem, which we have been talking about in the last few days, about the precise circumstances in which we are going to make union membership a fair or an unfair practice. Most of the problems about the closed shop, including those unfortunate dinner ladies, came about because of the formalisation of the practice; and the proposal in this amendment is that we should go on and formalise it entirely and completely and say that you could not have a closed shop until it was in everybodys' contract of employment. What problems we had as a result of the decision in the "Ferrybridge Six" case when the Trades Union Congress had to write to member-unions saying "For goodness' sake, make sure that your closed shop is watertight" until, in the 1976 Act, we fortunately managed to get something in about a practice which enabled us to go back a little to informality. This should make us realise that further movement towards the kind of contractual formalisation which this amendment suggests would be no good for the trade unions and very bad for the dissidents and oddballs and people who wanted to contract out.

Viscount De L'Isle

Seldom have I heard two more conservative speeches from noble Lords on either side of the Committee. In many ways I agree with many of the comments made by noble Lord, Lord McCarthy. We must face the facts as they are. Trade unions have become more powerful and, in relation, the workers have become weaker. In many other spheres of life, we have insisted that ordinary people should be fully informed about this their rights and obligations. This is an important right and obligation and, as things exist now, there is no reason why the worker should not have the terms of his contract explained to him and in his possession.

The noble Earl, Lord Gowrie is, I think, a Scotsman. I am an Englishman. I do not mind whether I am British or not. The sentiments that he enunciated were not a philosophy; they were an expression of the feeling that everything is for the best in the best of all worlds and let us make changes as little as possible. He had no feeling of justice. None at all!I must say that in all his efforts and persuasiveness, he has shown none throughout the series of debates. He has been invited to take part of it and he did so extremely plausibly. If I am a fundamentalist, then I am certainly one on principle. I, like the noble Lord opposite, have a conscience—perhaps a different one; maybe more elastic, but I have a principle and it is a principle of freedom. I doubt whether the noble Earl, Lord Gowrie, has it. He has not shown it but perhaps one day he will.

Lord Boyd-Carpenter

May I follow something which my noble friend Lord Gowrie said which interested me a great deal? Everything he says interests me a great deal. He expounded with considerable eloquence the philosophy of the step-by-step approach to the problem of the closed shop. I do not want to argue with him about that. On that he may be right. What I should like to ask is this. In what direction are those steps going to be directed Was he telling us in careful language, that the Government policy was to abolish the closed shop, as many of our European friends have done, but that as a matter of tactics or of tact, they wanted to do it by instalments? Or was he merely saying that they wish to deal with the various evils that the closed shop generates ad hoc, to deal with grievances but to leave the structure intact?

It is too important a matter to be left with any uncertainty. One must say in fairness to the Benches opposite that there is no doubt about their position. They are in favour of the closed shop. The noble Lord, Lord McCarthy, if he can bear it, will remember that I quoted on Second Reading his own words about it, which summarise, I think, the attitude of the party opposite to the closed shop. The closed shop, he wrote, is an important and sometimes essential device which adds considerably to the power of the unions to coerce and restrict the freedom of action of both employers and employees". In other words, according to the noble Lord, Lord McCarthy, who is the authority of the party opposite on this matter, the closed shop is, among other things, in their view, a device for coercing employees. One could hardly have found words which gave greater support to the point of view of the noble and gallant Viscount beside me. But, as I say, my purpose in rising is to ask my noble friend Lord Gowrie to elucidate a little the step by step argument: where and to what goal are the Government's steps directed?

9.41 p.m.

The Earl of Gowrie

I am grateful to my noble friend for trying to draw me out on this, because it gives me a chance not only to answer him but to clarify some points made by my noble and gallant friend. I do not think this is a question of poverty of conscience —certainly I hope not—or of disregard for freedom. It is, I think—and I apply the word "empirical"—an attempt to recognise that the best reforms proceed from some clarity of perspective on the situation as it is and some clarity of perspective of what the abuses or evils in a situation may be, and to try to correct them. One tries to correct them as they occur.

The situation is that in a free society—and it was my noble and gallant friend who used the word "freedom" —groups of employees are free to group together and they are free to enter into agreements with their employers. If one prescribes in too much detail the ways in which they can make arrangements with their employers—which was an experience the Conservative Government ran into at the time of the 1971 Act—and if this is too prescriptive and too detailed, the net result will be that union-membership agreements are driven underground and where union-membership agreements are, as it were, working on an "old boy" net and are driven undergound, there is a very grave prospect that abuses against individuals are not correctable and that the law will not easily be applied to try to correct them.

As I see it, the purpose of our endeavours in the field of the closed shop is to say: "We do not like this kind of arrangement in principle but to outlaw it as a matter of principle will drive it underground. Its being driven underground will not guarantee any protection for the individuals who may suffer under it. We would rather therefore try, in vulgar language, to get it to "clean up its act" and to try to protect individuals who suffer as a result of it."

I really think that if this kind of amendment were accepted we would find all sorts of subterranean agreements taking place and our, in my view, worthy efforts to protect individuals would be as nothing. Freedom is a double-edged sword, as I freely admit, and it is possible under our legal system, for employers and unions to make agreements or to duck out of prescriptive legislation. That was the experience we found in 1971 and that is why we are preparing our ground much more carefully step by step as we go along. Perhpas I might say finally to my noble friend that there is nothing threatening in this. There is no question of hinting at dark steps to come. It is really more a matter of trying to identify clear abuses on our industrial landscape and to clear them away as we find them and as they occur.

Baroness Seear

Surely, the last thing one wants to do is to prolong the debate at this time of night. But if I may, I should like very briefly to say something which is perhaps in support of what I understand the noble Earl, Lord Gowrie, to be saying and against the step-by-step interpretation which I think some people feel implies that there is a plan—of course, I have no knowledge of what plan the Government may have—and that somebody knows precisely where we have got to be by the year 2000 and that we are reaching that point step by step. This seems to me to be an appalling approach to any development in industrial relations and not in the least to be encouraged by anyone who wants better industrial relations in this country.

Surely, industrial relations do not exist in a vacuum. They are influenced all the time by social and economic developments outside, and by the shifts of power inside industry and between forces in industry and outside. The kind of development that we are going to see in industrial relations, and where we want to go, will depend very much on developments outside; and nobody can tell what those will be. Therefore, it is not an absence of principle; it is an approach to the whole way in which society develops that is implied in saying that we look at the present situation, we try to improve upon it as it stands, we watch, we observe, and, as things develop, then we make further adjustments to get a better and healthier state than we have at the present time.

Lord Campbell of Alloway

Surely, to accept an amendment along these lines involves entering upon a sort of collision course with the trades union movement; and for what conceivable good or purpose? Why should this be necessary, when there is no individual interest that is threatened, there is no individual interest that is at stake, or that needs protection, and when there really is no individual who is put to the hazard of injustice? This is merely an attempt to "take on" the trade unions, which is one thing that I, as an individual, would never support.

Lord Hankey

Without lengthening this debate, perhaps I may say a word, because I warmly agree with my noble friend Lord Spens. Looking at this—and I am not sorry to have studied this question in various parts of the Continent—the vagueness of our industrial agreements leads to a great deal of trouble. If the texts were more clearly established, and people knew exactly what their rights were, there would not, as the noble Earl has said, be more opportunity for minor petty dominations in various ways. I think that there would be greater clarity of what people's rights were and what was expected of them. I believe that this is a serious weakness in our present system and I see nothing to be proud of about it.

British industrial relations have been a scandal for years and they are almost universally known as die englische Krankheit, or la maladie anglaise. We have nothing very much to be proud of. I share the desire of the noble Baroness, Lady Seear, to see reforms got on with and I believe personally—I admit that it is a matter of opinion—that, if these agreements were written down and were clearly delineated, it would make it harder for people on either side of industry to stretch points to the disadvantage of employers or employees. I am not in the least being anti-union in this matter. I just want better industrial relations.

There is one very important point. When these industrial troubles come before industrial tribunals—and this point occurs constantly in this legislation—I do not see how the tribunals can be sure what are the agreements which they are supposed to be applying, or judging the fairness or unfairness of, if they are not written down. You can get various versions of what the agreements are. In Britain, the whole situation is too vague and it would be a good thing to make it more precise, so I support the amendment.

Lord Spens

I am most surprised at the attitude, both of Her Majesty's Government and of the Opposition on this amendment, and particularly of the Opposition, because it was in the 1975 and 1978 Employment Protection Acts, which I think were almost the baby of the noble Lord, Lord McCarthy, that it was made compulsory for every employer to give a written contract of employment to every one of his employees. That is there. So why should not that contract of employment include what is the most important element from the point of view of an employee?— namely, the details of any union management agreement which he probably has no idea about but which has been entered into by his employer and by his union, probably without any consultation with him. So he is going to take up a job without any knowledge of what is really involved. That is something which in these enlightened days we ought not to allow to continue.

It is all very well to say that it is going to upset the unions. Why should it upset the unions? What are they so frightened about? If their union management agreements are so glorious, why are they worried about putting them down in writing for everyone to see? I feel that this is a nonsense. On the other hand, we have not got sufficient support to press the amendment. Therefore I beg leave to withdraw the amendment, but I reserve the right to bring it back at Report.

Amendment, by leave, withdrawn.

[Amendment No. 29 not moved.]

The Deputy Chairman of Committees (Earl Cathcart)

In calling Amendment No. 30, I should advise your Lordships that, if this amendment is agreed to, I cannot call Amendments Nos. 31 to 47.

9.53 p.m.

Lord Howie of Troon moved Amendment No. 30:

Page 4, line 30, leave out from beginning to end of line 33 on page 5 and insert— ("58A.—(1) Subject to the following provisions of this section:

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

The noble Lord said: In moving Amendment No. 30, with the leave of the Committee, I shall speak also to Amendment No. 37. I believe that has the agreement of the noble Lord, Lord Spens, who has also put his name to Amendment No. 37. Earlier today, the noble Viscount, Lord Trenchard, remarked that the Bill was just about right. I reflect that "just about right" has almost exactly the same meaning as not quite wrong.

Viscount Trenchard

Could I make it clear that I was quoting the Director-General of the CBI, who feels that the Bill is now just about right.

Lord Howie of Troon

The noble Viscount is entirely correct. That had slipped my memory. My point nevertheless remains, though the noble Viscount rightly puts the blame on to the CBI rather than shouldering it himself. What the Minister did say was that in matters of this kind he wanted there to be the least disturbance to existing good relations. I would agree with him, and I am sure that he will not try to blame that on the CBI. In a case of this nature there is the least possible disturbance if matters are left as they are.

The purpose of my amendments is to leave the 1980 Act in operation just as it is. These amendments were encouraged by the Chemical Industries Association, an industry where labour relations are good and an industry where people want these relationships to be disturbed as little as possible. The objective is to retain the present position. Nothing has happened since the passing of the 1980 Act to justify the kind of changes to existing closed shop arrangements which the Government are suggesting. I do not think there is any reason to disturb closed shop agreements which are already in operation and which are working reasonably well, with the agreement of the employers and of the employees who are involved in them. The least disturbance in this case would be to leave matters entirely alone.

There is one other point I wish to make. We heard no little discussion earlier today on the European Court of Human Rights. I have no intention of going in any great detail into the judgment of that court. I will make only one point in relation to it. As I recall, the Government have stated more than once that had the 1980 Act been in operation, the melancholy events which led to the Strasbourg decision would never have happened, and now that the 1980 Act is in operation, if I am right, there is little prospect of their recurring. The Government seem to have dealt—to a large part, at any rate—with the problem which took the previous Government to the European Court. It would seem unreasonable to tamper with a situation which has not yet been fully tested.

I have a number of amendments coming later which go further into this matter. They deal with situations where there might be some dissatisfaction. Amendments Nos. 30 and 37 leave things alone because there is no dissatisfaction, but in later amendments we will come to deal with cases where there is some dissatisfaction. I hope that the Government will see some sense in what I have been saying and will modify the view they have taken hitherto.

The Earl of Gowrie

Perhaps the noble Lord, Lord Howie of Troon, will correct me if I am wrong in understanding that we are speaking to Amendment No. 30 and to Amendments Nos. 41, 45 and 46?

Lord Howie of Troon

Not really. I was speaking to this amendment and Amendment No. 37.

The Earl of Gowrie

I beg the noble Lord's pardon. So I should speak to this amendment and to Amendment No. 37?

Lord Howie of Troon

That is correct.

The Earl of Gowrie

We are dealing here with what is commonly referred to as a trigger ballot, that is one which does not require ballots to be held unless they are requested by a percentage of the employees concerned.

Lord Howie of Troon

Would it help the Committee if we did speak to the other amendments now?

The Earl of Gowrie

It would certainly help me.

Lord Howie of Troon

It was not my intention but I would be glad to do so. Amendments Nos. 41, 45 and 46, which are the other amendments down in my name, are, as the noble Earl was about to say, the trigger amendments. The point about these amendments is that they allow employees, where there is dissatisfaction and where they see a need, to demand a ballot rather than have the ballot in the hands of either the employers or the trade unions. This seems to me to be an elementary matter of natural justice to which we should turn our attention.

In the course of these amendments I have set a trigger at 15 per cent. That is an interesting figure. If noble Lords will throw their minds back to the debate we had on the amendment moved by my noble friend Lord Jacques earlier today, he proposed a figure of 10 per cent. In the course of that debate it was remarked that in another place a Member of the Social Democratic Party had proposed a trigger of 20 per cent. In the spirit of compromise for which I am widely known, my trigger comes midway between that of my noble friend—which was thought to be too low—and that of the Social Democratic Party—which was thought to be too high. Therefore, I suspect it will command the highest possible support among your Lordships.

The other thing this little group of amendments does is reduce the majorities necessary in these ballots. Noble Lords whose memories are long will recall that in the Second Reading debate I said that the majorities which the Government were demanding were absurdly high. I adhere to that and I think the Marshalled List indicates that there is a considerable number of Members who agree with me, though they might disagree with the figures I have chosen.

I have said that the majority should be 50 per cent. of the electorate or 55 per cent. of those who vote. I chose 50 per cent. because it is a commonly used majority figure. There are arguments for all the others as well, but this is the most widely used majority figure. But I looked at it carefully, and instead of taking merely 50 per cent. of the total electorate at all times, I realised that if 100 per cent. of the electorate voted, the 50 per cent. demand which I had thought of putting down would be very narrow; it could be 501/2 per cent. to 49½ per cent. I would regard that as very marginal in a case like this. So what I said was that two conditions should be fulfilled. First, it should be 55 per cent, of those who voted, but, in addition to that 50 per cent. of those available to vote, whether they voted or not.

There is one other point which I wish to make, and the last one, noble Lords will be glad to hear. In the course of the earlier debate, the noble Lords in the Social Democratic Party drew attention to the fact that my noble friend's amendment had no time limit on it. Well, mine has, and the time limit is five years. As noble Lords will see, I have gone to great lengths in drafting my amendment to seek the widest area of possible agreement among members of the Committee.

The Earl of Gowrie

I am grateful to the noble Lord, Lord Howie of Troon, for gathering the group of amendments together in such a way that it is now clearer to me. I have to confess—I am sure this is my fault rather than the noble Lord's—that I am still not altogether clear how this group of amendments is intended to operate. Presumably, the effect is that existing closed shops—that is, those introduced before 15th August 1980—should be subject to a ballot only if this is requested by 15 per cent. of the employees covered; that is, the trigger ballot formula; that a closed shop ballot could not be triggered more frequently than once every five years; and that in such a ballot for a closed shop to be approved it would need to gain the support of 55 per cent. of those voting with a minimum turnout of 50 per cent. of those covered. So, taken together, the amendments would represent a considerable weakening of the ballot provisions of the Bill. Is the noble Lord happy so far with my interpretation of what he is seeking to achieve?

Lord Howie of Troon

The noble Earl, as always, understands my amendment better than I do. I hesitate to allow the word "weakening".

The Earl of Gowrie

It may be that the weakening is perhaps just my suspicious nature. The noble Lord and I appear to be rather like two blind men approaching each other in the dark, but with a great deal of good will and I think dawning enlightenment as to who exactly we are.

It is not right, in our view, that an existing closed shop should remain approved until a ballot is triggered, because that might never happen. Nor is it right, in our view, that a closed shop should be able to be approved by the low percentage laid down in Amendment No. 46. The difficulty with the whole trigger approach is in the problems which employees would be likely to face in practice in achieving the required threshold level. It needs to be remembered that efforts by individual employees to canvass, or simply to try to find out the level of possible support for a ballot among their fellow employees, would in many cases be strenuously resisted by the trade unions concerned.

It must be expected that in such cases those attempting to promote a ballot might suffer attempts to dissuade them from this course, So it cannot be right that 15 per cent. or any other percentage of employees must, as it were, have to come out and declare themselves publicly in order to gain the right to vote in what is a secret ballot, particularly when those prepared to press publicly for a ballot could, in fact, suffer actual or threatened disciplinary action from their union as a result. If you agitate publicly for a secret ballot in many circumstances it would be quite clear in which way you are trying to vote. This, I think, might end up with no ballots whatever being held. We do not, therefore, consider that trigger ballots are an acceptable substitute for the balloting provisions in the Bill. The Government believe that it is the right of all employees to take part in the closed shop ballot and that right should not depend on the actions of 15 per cent.

Turning to the next point made by the noble Lord, Lord Howie, we do not think it desirable, either, that it should not be possible to hold closed shop ballots more frequently than every five years. Obviously circumstances change—for instance, employees might object to a change in union policy or the turnover of employees might increase. An employer or a union should surely be able to arrange a closed shop ballot when they think it appropriate because otherwise it might be the case that employees could be locked into a closed shop against their will for some years and there would be a constant worsening of industrial relations.

As regards the last substantial point—the percentages needed to prove a closed shop—it may help to set Amendment No. 46 in context if I first restate our belief—and this links backs to the earlier debates—that it is vital, given the fact that there is always liable to be some conflict between the closed shop and basic individual freedoms, that before these freedoms can in any way be infringed, it must be shown in a secret ballot that there is over-whelming support for the closed shops from the employees concerned. I should perhaps have said "before these freedoms can notionally be infringed" because some people would accept that freedoms would notionally be infringed, but would find other benefits in getting into the closed shop position.

Amendment No. 46 would pitch the required level of support in a closed shop ballot far lower than the Bill proposes. I accept that whenever you get to a figure you get boundary disputes, as it were, and that there can be no absolute justification of any one figure rather than another. But, as we have frequently stated, our view is that the proposed test of 80 per cent. of those entitled to vote or 85 per cent. of those voting reflects what we would judge sensibly, I think, to be the minimum levels of support required if closed shops are to continue. These figures were generally supported during the consultations which we made and the figure of 80 per cent. of those voting is, of course, already established. It has a precedent in the 1980 Act. I accept altogether that this must ultimately be a matter of judgment. Our view is that it would be wrong to make the test less stringent by reducing the percentages and, therefore, I ask the noble Lord to withdraw the amendment or the Committee to reject it should he press it to a Division.

Lord Wedderburn of Charlton

I know that my noble friend Lord Howie has indicated that he would like to hear a view from this Bench and, of course, there is some distance between some of my noble friends and myself and his view on this matter. He has, I now hear, one advantage over me in discussing matters with the noble Earl, because the noble Earl says that they are like two blind men approaching one another in the dark. With the noble Earl and myself, I sometimes feel that it is a debate with two blind men walking away from one another in broad daylight.

However, I follow the point that the noble Earl has made to us. It is really about two matters: it is about ballots and about majorities. On the basic point, it seems to me that my noble friend surely has the edge. It seemed to me that nothing that the noble Earl said derogated in any way from the transparently sensible point in the first part of my noble friend's first amendment to leave existing closed shops or union membership arrangements as they are. If the Government adopted that, I suspect that there would be many employers' associations that would stop bringing pressure upon them to delay the operation of this Bill, and there would be many shop stewards and trade unionists and many workers, too, who would be quite happy not to be engaged in this matter. Indeed, the question which my noble friend asked was not answered. It was: what is it that has happened since 1980 that requires the introduction of this measure? I shall not mention the fruits of research, but obviously the point would be made in a longer discussion that there is research that suggests quite the opposite, that nothing has occurred.

On the second point, I think that some distance opens between most of my noble friends and my noble friend Lord Howie, although I suspect that there would be a gradation of view on this side of the Committee. I am attracted by his later amendments because, in the end, they come to the sort of majority that most of my noble friends and myself think is the one that matters; namely, 50 per cent. You have a vote; you have a group of people; and provided that you can agree on the constituencies—and we all know that that is a problem although we have not heard much about that—you get on with it and one side wins or it does not. I cannot see any justification at all in my noble friend advancing very far. Perhaps a slightly larger majority could be argued for, but certainly not to say that you value one individual's right to assert that he wishes to work under conditions of fellowship with those contributing to the union as being worth a quarter or less of the individual's right to assert that he will work on condition that he takes the benefits without being part of the union.

I think it is necessary for me clearly to record that there is a difference between my noble friend here and the view taken on this Front Bench. We think that the problem of the ballots is not one of a majority. After all, look at the string of amendments and consider what we are being asked to do. Apparently, we are going to engage in a search for the crock of gold or the percentage at the end of the rainbow, whereby industrial relations problems will be solved. The managing director and the shop steward, with their computers, will say" Have we got 65.7 per cent.?" or "Have we got 52.4 per cent.?" Albeit that there are arguments for one majority and against another percentage, I do not think that that is a central issue.

I conclude by putting this especially to my noble friend. Albeit that I think his amendments would, in a sense, be better in almost every way than what we have, nevertheless the central issue was put by the TUC in its report on this very Bill. I quote from paragraph 59 of the report on the Bill, where the TUC said: If an employer decides to hold a ballot as required under the proposed legislation, a union will be faced with the choice between not co-operating with the ballot—and thereby risking awards of compensation for sacked non-unionists—and co-operating and engaging in regular and strenuous campaigns to secure the very high majorities necessary. Although these majorities could no doubt easily be secured in many workplaces"— and this is the point; it is not just the majority— there is a strong likelihood that such ballots could cause disruption, and the dissatisfaction of a minority of members with, say, a pay agreement could well surface in a campaign of this kind and result in undermining the union membership agreement", which could injure individuals as well as managements and workforce.

In paragraph 61 the TUC join this with other parts of the Bill, taking into account the joinder provisions and taking into account the special awards to which we are coming. They suggest—and I put it to your Lordships that this is a reasonable view—that this amounts to an unjustified legal onslaught on union membership agreements, as well as the outlawing of" union labour only" practices, which could lead to serious industrial problems for employers as well as unions. They go on: It could also undermine the TUC Disputes Principles and Procedures and exacerbate problems of multi-unionism. Although I have great sympathy with my noble friend's attempt to find more reasonable majorities, majorities will not solve that problem which is at the core of the Bill.

Lord Mottistone

What makes the argument of the noble Lord, Lord Wedderburn, not quite as credible as it should be is that in the background of one's mind is what I call the intimidation factor. It is very sad, but it is a fact of life that we have had to live with for, in my experience, the last 30 years—that, when the pressures come, the intimidation comes.

I was very taken with the point that my noble friend made, that if you have 15 per cent. who must ask for something—the trigger that has been talked about—that identifies the 15 per cent. In an ideal world, that would not matter. People would say, "Good, 15 per cent. have a view". But unfortunately we do not operate in an ideal world. Unfortunately, we have experience that if you have 15 per cent. who identify themselves in a particular way all sorts of pressures come to bear, and they vary. Sometimes they are rather harsh. One has seen the pressures not only on the workforce, but on management as well in reverse circumstances. It is when this threatening aspect comes in that all the happy arguments that in this splendid Chamber we may advance start to have to take a different view.

I would suggest that my noble friend Lord Gowrie is right in his stand on this point. Having a minimum number of people who can identify themselves is wrong. Having to say, "Well, let us", as Lord Wedderburn said, "have roughly a 50/50 sort of rule", does not work if some people are going to be unpleasantly tough and others are not. I would suggest to the Committee that this amendment, good though it is in many respects, or this group of amendments, should be put on one side, and perhaps the noble Lord, Lord Howie, will come back with something which takes into account what has been said at this time. There is a lot of sound viewing behind them, but really they should be rejected by your Lordships at this point in time. The arguments put by my noble friend need to be listened to with care.

Howie of Troon

I am greatly tempted to proceed with the amendment on the strength of Lord Wedderburn's first remarks, which seemed to be kindly directed towards me, but as he went on he seemed to cool in his ardour towards my amendment. It might be best if between now and Report stage I have brief discussions with my colleagues on the main Opposition Front Bench in the hope that we can come up with another group of amendments, and agree between us, and perhaps with other Members of the Committee who have shown willing to walk somewhat in the same direction. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Jacques had given notice of his intention to move Amendment No. 31: Page 4, line 34, after ("ballot") insert ("has been requisitioned by 10 per cent. of those employees and")

The noble Lord said: The subject of this amendment has been discussed and decided upon. Therefore, it is not moved.

[Amendment No. 31 not moved.]

The Deputy Chairman of Committees

In calling Amendment No. 32 I should inform your Lordships that if it is agreed I cannot call Amendments Nos. 33 to 36.

10.18 p.m.

Lord Spens moved Amendment No. 32: Page 4, line 36, leave out from ("and") to end of line 39 and insert ("not less than 80 per cent. of those entitled to vote").

The noble Lord said: I do not propose to detain your Lordships very long over this amendment. It arises from my suspicion of the provision that in a ballot of not less than 85 per cent. of those who voted in favour of a closed shop agreement it would be successful in allowing that agreement to continue. Now 85 per cent. of those who voted could be a small percentage of the members involved in the closed shop.

For example, we have had the noble Lord, Lord Mottistone, talking about his seamen where he said that in a ballot on pay, or something, all they could raise was 30 per cent. of the membership. 85 per cent. of 30 per cent. I believe is just over 25 per cent. That could mean that, if 25 per cent. of seamen voted in favour of a closed shop, that closed shop agreement would continue to be maintained, whereas the other 75 per cent. would not have taken part in the voting.

In speaking to this amendment, I am speaking also to a consequential amendment to which my name is coupled with that of my noble friend Lord Howie, No. 37, because if we were to knock out the 85 per cent. it would mean that we should have to knock out Section 58A(2). At the same time, in respect of my Amendment No. 42, which is on the same lines, I do not propose to move that in due course because the situation there is different; it is not an "either/or" but an "and" situation, and I am happy in that respect.

I ask the Minister to consider the situation of 85 per cent. of those who voted. We might have a union of 10,000 members of whom 1,000 voted, and 850 of those voted in favour of continuing the closed shop. It would be 85 per cent. of those who voted, but it would be only 82 per cent. of the total membership of the union. For that reason I believe that to refer to 85 per cent. of those who voted would be a dangerous figure to have in the Bill.

Viscount Trenchard

I think I understand what the noble Lord, Lord Spens, has in mind. I should begin by drawing to the Committee's attention subsection (4) of Section 58A, which declares: A ballot under this section shall be so conducted as to secure that, so far as reasonably practicable, all those entitled to vote have an opportunity of voting, and of doing so in secret". For a ballot to stand up, that condition will have to have been met, and I mentioned earlier that I understand there are provisions of the general law which would allow reference to the High Court. A ballot therefore has to be a proper one.

Then we have the problem of steering between the two dangers that noble Lords from more than one party have raised; namely, the danger of making sure, on the one hand, that it is the will of an overwhelming majority that an existing closed shop shall continue, or that a new closed shop, once voted, shall continue for five years, and, on the other, deliberately what has been called "stirring things up" by insisting on everybody being dragged to vote. It is for that reason that we have offered the alternative in the case of closed shops which are not new.

It is indeed possible that a fairly small percentage might vote—which might represent of course a very small precentage of those entitled to vote—as being in favour of the continuation of a closed shop. But that, in our view, would happen only if it were in those situations, which have been outlined, where a closed shop has become completely accepted and is operating in accordance with the wishes both of the vast majority of employees and of the employer, and in those situations we do not want to cause any more disturbance than is necessary.

I do not think that there is a risk, which the noble Lord may have in mind, of a hole-in-the-corner ballot being quickly conducted and a decision passed by a big percentage of a very small vote. Certainly that result could not be brought about in a situation where there was genuine feeling and where whoever was conducting the poll had made sure that there was a chance of people voting and that the voting was secret. Therefore, I resist the amendment.

Lord Hankey

I greatly welcome what the noble Viscount has just said. I take a purely practical view in these matters, and for a moment I should like to revert to a discusion which we had just now. How does the noble Viscount think that the provisions of subsections (3) and (4) could be efficiently carried out with a ballot for thousands of employees unless the union agreement was written down? They might not agree what they were discussing.

Viscount Trenchard

I think that that is a separate question from what is contained in the amendment which the noble Lord, Lord Spens, has moved.

Lord Campbell of Alloway

I understand the concern of the noble Lord, Lord Spens, but I respectfully suggest that, if properly observed, the provisions of subsection (4) go part of the way, but I ask my noble friend the Minister, do they go all the way? Is this an area where perhaps consideration should be given to the type of machinery to be adopted? That machinery would not be to ensure that one drags in many people so that something is imposed upon the trade unions—that would be quite wrong, for the reasons that I have already submitted; it would be to make certain that the matter is brought to their attention in a proper way. I might have misread the provisions, but there does not seem to be any machinery in that regard, and I wonder whether my noble friend the Minister considers the point worthwhile.

Lord Mottistone

Before my noble friend replies, I must say I really think that this is a bit of nonsense. The noble Lord, Lord Spens, knows that I agree with him in many things, but, if the matter is an important one, people will turn up; if it is not an important one, they will not. What my noble friend was saying earlier makes absolute sense. I think that we can become terribly mealy-mouthed about this matter. But, if people do not bother to turn up when there is something important, even though the Bill gives them all kinds of opportunities, well, to hell with them!—it does not matter. I think that the amendment amounts to over-nursing people who really ought not to be nursed.

Lord Campbell of Alloway

If it is in order to reply in plain language, which the noble Lord, Lord Mottistone, likes to use, I would ask, with respect to him, how can they turn up if they do not know? That is the only matter that is concerning me. In my submission that is not a matter of nonsense, it is a matter of plain justice.

Viscount Trenchard

My noble friend Lord Campbell of Alloway is a lawyer, and I hesitate to suggest meanings of words, but all of those entitled to vote have an opportunity of voting. I should like to put it to my noble friend: would a tribunal consider that there had been an "opportunity" if there had been no notification of the ballot to all employees? I should have thought that that covered the situation. I said earlier, in relation to subsection (4), that, should it be necessary to spell out the conditions regarding holding a ballot, then my right honourable friend will consider amendments, but we really do not believe that it will be so necessary. Therefore, I hope that we can have what I have called a low-key check, where that is all that is required, and thus avoid the problems of disturbance. In our view, for the reasons which my noble friend Lord Gowrie made clear, disturbance would be caused by canvassing for a trigger mechanism. I hope that we can avoid that and avoid dragging everybody to the polls, when they all know of the situation and have an opportunity to vote. So I hope I can persuade the noble Lord, Lord Spens, having listened to those considerations, to withdraw his amendment.

Lord Spens

I thank those who have taken part in this very short debate. I certainly have no intention of pressing this amendment at this time. I beg leave to withdraw it, and at the same time I give notice that I shall not move Amendments 37 and 42, which are in my name, but I reserve the right to bring them back again at Report, possibly in a slightly different form, because the noble Lord, Lord Mottistone, although he ridiculed my idea, did not answer the problem of his own merchant seamen, where he cannot get more than 30 per cent. to a ballot, and 85 per cent. of that is only 25 per cent. of the whole.

Viscount Trenchard

Before the noble Lord withdraws his amendment, may I remind him that the provision to vote on more than one day and without a limit of numbers is in this Bill? Among other things, we hope that that will make possible a vote, and will make it possible for whoever conducts the poll—for instance, in the shipping industry—to make sure that everyone entitled to vote has an opportunity.

Lord Spens

I am most grateful to the Minister for that. It still does not quite answer the point made by the noble Lord, Lord Mottistone, because I do not suppose there was any real limit to the time that his seamen were allowed to take in joining in that particular ballot. However, we have had enough of this amendment, and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

10.33 p.m.

Baroness Seear moved Amendment No. 33: Page 4, line 37, leave out ("80") and insert ("70").

The noble Baroness said: With the leave of the Committee, with this amendment I should like to take Amendments Nos. 35, 43 and 44. As we have said repeatedly during this Committee stage, we want to see the possibility of real change in the position of the closed shop, but we also want to maintain the opportunity for people to preserve it if they wish so to do. We want the options to be real options, of the status quo or of change.

Our objection to the Bill as it now stands, and the purpose of these amendments, is that we think the percentages given in the Bill are too high to make the possibility of maintaining the status quo a real one. The idea that 80 per cent. of people will turn out, or 85 per cent. of those able to vote, seems to us to weigh the scales unduly heavily against the maintenance of the existing position. Although, speaking at any rate for myself, I do not like the existing position, if we are saying it is to be a genuine choice, then, in our view, 80 per cent. and 85 per cent. are quite unrealistically high.

On the other hand, we would not feel that we could go along with the suggestion which is in other amendments which have been tabled, which puts the figure as low as 60 per cent. Of course, there is no absolutely right figure, it has to be a matter of judgment; but in our view the figures we have here in these amendments for those who have to turn out to vote for change or for the maintenance of the status quo are just about right, in that they give a fair choice to go on as you are or a reasonable opportunity to change. I beg to move.

Lord Kilmarnock

In supporting the noble Baroness in the amendment she has just moved, may I say that I did a little research into the operation of the 1980 Act. The noble Lord, Lord Wedderburn, referred to the crock of gold. He said that these was no crock of gold; that we can go on juggling with these percentages and we would be extremely unlikely to get them right unless we brought them right down to 50 per cent. We do not agree with that. As to the operation of the 1980 Act, which introduced the 80 per cent. threshold, in discussion in Standing Committee G in another place on 30th March of this year it was elicited from Mr. Waddington, the Under-Secretary of State for Employment, that in fact two ballots had taken place under the provisions of the 1980 Act. In both cases there were just over 100 people in the scope of the proposed agreements—so we are talking about small workforces—and some 90 per cent. or more voted in each case. In both cases, just under 80 per cent. of those eligible to vote voted in favour.

This, of course, produces a problem, and indeed the problem was raised by another honourable Member. I paraphrase him, of course, but he pointed out that, as the requisite 80 per cent. had not been achieved, some malcontents subsequently went to the tribunal and were awarded compensation which had to be paid by the local authority. So there we have a concrete situation where the 80 per cent. which the Government seek to maintain in this Bill has in fact had, I suggest, an effect which was contrary to that which was intended. I thought it was useful to bring into the debate that small instance of what had happened. It seems to me to give very good substance to the contention of the noble Baroness that what we want is something like 10 per cent. lower on each of the figures which are in the Government's Bill; in other words, to reduce the 80 to 70 and the 85 to 75.

I think that if the Government would agree to that, and if noble Lords who will be later moving the Opposition's rival set of figures would also agree with us, we shall probably be able to come to an acceptable compromise, which may not be exactly the crock of gold, but which may be a workable procedure for British trade unionism in this country.

Lord Jacques

I suggest that it would be for the convenience of the Committee to have one debate on this question of percentages. If the Government Front Bench agree with that, I am quite prepared to speak to Amendments Nos. 34 and 36.

Viscount Trenchard

I would be happy about that if the noble Baroness was happy.

Baroness Seear

Yes.

Lord Jacques

In any atempt to change established rules and regulations, it is normal practice to require more than 50 per cent. There are many examples of that. For example, under the Companies Act, in order to pass a special resolution changing the status quo you need a 75 per cent. majority. Under the Industrial and Provident Societies legislation (under which co-operative societies are registered), to have a special resolution changing the status quo you have to have a 663 per cent. majority. It is also common practice in companies, in co-operative societies and in trade unions that, where the rules and articles are being changed, a two-thirds majority is required. So to change established practices usually means a substantial majority.

But what do we find in this Bill? We find that when an established practice—namely, the closed shop—is going to be changed, it can be done with a majority of 21 per cent. of those entitled to vote and 16 per cent. of those who actually vote. Is that not different from what applies in the Companies Act, in trade unions and in co-operative societies? To change it, you have to get merely 16 per cent. of those voting, and you are home and dry.

The amendments that I have down—Nos. 34 and 36 —with the support of my noble friends Lord Oram and Lord Beswick, are very modest. Instead of the existing rules and regulations being changed by 20 per cent. of those entitled to vote, we are suggesting that the figure be increased to nearly 40 per cent. and that the 15 per cent. be increased to 33 1/9 per cent. So, by having a vote of only 33 1/3 per cent. against the existing regulations, you can change them. That, I suggest, is exceedingly generous to those who want to make the change; and in order to get the change which I am suggesting 60 per cent. of those entitled to vote would have to be substituted for 80 per cent. and 66 2/3 per cent. of those voting would have to be substituted for 85 per cent. By putting the figures to you in the way I have, I hope I have showed how unsatisfactory and how unfair the Bill is to trade unions and how it coddles the people who are against trade unions.

Lord Mottistone

I should like only to say, do not forget the intimidation factor.

Viscount Trenchard

We have been over quite a lot of this country a good many times. I would start by saying to the noble Baroness, Lady Seear, that I find it difficult to accept her statement of what a great problem it would be to get 85 per cent. of those who vote to vote in favour of a closed shop which is working very smoothly and very happily for all concerned.

Lord Pitt of Hampstead

Would the noble Viscount give way Would he tell me what is the average percentage of voting in general elections?

Viscount Trenchard

I am not sure whether the noble Lord has understood the point I was making. The point is that if only 10 per cent. voted it was perhaps not a very exacting requirement because there was peace and nobody was very interested in spite of the ballot being promulgated. It would not be very surprising, frankly, if the whole of the 10 per cent. voted for continuation. In that context I would mention the two cases quoted by the noble Lord in relation to a figure of 80 per cent. not being quite reached. In both cases I understand that the figure of 85 per cent. of those voting was reached and was in fact exceeded. I suggest therefore that there is some evidence on the first point raised by the noble Baroness that the 85 per cent. alternative check, particularly offered in areas where there were no problems, is not a great difficulty. The other part of this amendment, and indeed the other part of various amendments, including those spoken to by the noble Lord, Lord Jacques, is the "first only" vote in the case of a new closed shop, where 80 per cent. of those entitled to vote are required to vote in favour.

Lord Jacques

Would the noble Viscount give way? My amendments deal only with existing closed shops.

Viscount Trenchard

If I may at this stage go on with the new closed shop and the second point raised by the noble Baroness—I am sorry if I have wrongly quoted the noble Lord's amendments in this context—it is quite definitely the view of the Government that a new closed shop should only be voted in by an overwhelming majority. It represents a major change in conditions of employment. It could be called a situation where the employee moves into an area where his permit to his job or his permit to work is controlled by a certain union that is proposing the closed shop agreement with the company.

My noble friend Lord Mottistone has mentioned pressures and I, personally, have considerable experience of what those pressures can do, right through to the forcing of 100 per cent. membership by a threat of a strong union totally to cut off supplies to a company. The 100 per cent. membership was achieved and the closed shop followed. That is an incident in my own personal experience, and it confirms what my noble friend Lord Mottistone said about the power and pressures that can exist. I am not suggesting that they exist widely. The Bill is to deal with the areas which are not working well, and we have already spoken on previous clauses of the many occurrences. Therefore, I would reject, also, the noble Baroness's amendment in relation to the first ballot coming down to 70 per cent. Although the noble Lord, Lord Jacques, has spoken to his amendments, they are slightly different, and I am wondering whether we should take them at this time, or whether I could pause there for a moment, at least.

Lord McCarthy

I am not sure where this debate has got to. It seems to be getting more and more confused. It reminds me of the kind of debates that students have when they exchange their views about the system of proportional representation, which they think is possibly the best one for their party. It is not unlike the arguments which I am sure the medieval school men used to have on how many angels should dance on the end of a pin.

The noble Baroness says that 60 is too low and 80 is too high, so let us make it 70. It is the splitting the difference principle. The noble Lord, Lord Kilmarnock, says have a sample He knows of a sample where they got 80, so make it 70—

Lord Kilmarnock

I am sorry, but I was quoting a concrete instance. The whole point of my remarks was to show that something marginally under 80 was achieved, and this gave rise to all sorts of undesirable results which had not been envisaged.

Lord McCarthy

I said have a sample. You have two examples. It was not a stratified sample. But it does not follow from the fact that that is what happened there, that that is the principle that we ought to have in a ballot. The fact is that you cannot extract these principles out of the air, whether you split two figures or use an isolated example. You can say, logically, that there is something called a majority decision, and there is something called a minority decision. That is the way in which we normally decide things when we have votes, if you want votes at all. But where, and how, you can decide whether 70 is right, 60 is right, or 33 1/3 the first time is right, I do not know. All you can say—and everybody has said this, and this is why we will support these amendments, if any of them go to a Division—is not that they are particularly logical, but they are better than the Bill.

The only arguments that we have against them have not so much been from the Front Bench, but from those like the noble Lord, Lord Mottistone, who were talking about intimidation, and said that, because we have intimidation, we have to have high figures. Again, it is never argued very logically why 80, 70 or 85 will prevent this intimidation and, indeed, no evidence is put in about intimidation. The only stratified sample we have, rather than isolated examples, is, I am afraid, Professor Gennard, who saw no signs of that intimidation.

The particular and specific example which the noble Viscount put before us this evening, if I may say so with great respect, was not an example of intimidation of individuals; it was an example of collective blacking—probably, now unlawful under the 1980 Act. But it was not an example of intimidation of individuals. Therefore, I am afraid that we have not been given any good reasons why we should agree either with what the Government want, or with any particularly high figure. But if anybody wants to move anything which is better than this Bill, then we shall support it.

Viscount Trenchard

I was doing my research work to see why I had wrongly quoted the noble Lord, Lord Jacques, as being interested in new closed shops. The reason why I took it that he was is that his Amendment No. 34 suggests leaving out the 80 per cent., which applies as a definite "must" for new closed shops, rather than the 85 per cent. which he mentioned subsequently and reduced to two-thirds. The noble Lord is saying that if the employer and the union in an existing closed shop choose to have their agreement balloted under the alternative of 80 per cent. of those entitled to vote, then it should be reduced to 60 per cent., and I now understand that he is referring only to existing closed shops. I had not previously understood that.

Baroness Seear

I accept the comment that there is no possible proof that any particular figure is absolutely right, but since I consider, and as people who have spoken on this side of the Committee consider, that this figure of 70 is an improvement on the existing figure of 80, I wish to test the opinion of the Committee and will divide.

10.51 p.m.

On Question, Whether the said amendment (No. 33) shall be agreed to?

Their Lordships divided: Contents, 21; Not-Contents, 48.

DIVISION NO. 3.
CONTENTS
Airedale, L.	McCarthy, L.
Aylestone, L.	Oram, L.
Beswick, L.	Peart, L.
Bishopston, L.	Pitt of Hampstead, L.
Boston of Faversham, L.	Ponsonby of Shulbrede, L.
Collison, L.	Rochester, L.
David, B.	Seear, B.—[Teller.]
Jacques, L.	Underhill, L.
John-Mackie, L.	Wedderburn of Charlton, L.
Kilmarnock, L.—[Teller.]	Wilson of Langside, L.
Llewelyn-Davies of Hastoe, B.

NOT-CONTENTS
Alexander of Tunis, E.	Denham, L.—[Teller.]
Avon, E.	Dilhorne, V.
Belstead, L.	Drumalbyn, L.
Campbell of Alloway, L.	Elliot of Harwood, B.
Cathcart, E.	Elton, L.
Cork and Orrery, E.	Faithfull, B.
Crathorne, L.	Ferrers, E.
Davidson, V.	Glanusk, L.
De La Warr, E.	Glenarthur, L.

Gowrie, E.	Mottistone, L.
Hankey, L.	Murton of Lindisfarne, L.
Harvington, L.	Newall, L.
Henley, L.	Norfolk, D.
Kilmany, L.	Saltoun, Ly.
Kinnaird, L.	Sandys, L.—[Teller.]
Kinross, L.	Skelmersdale, L.
Lindsey and Abingdon, E.	Spens, L.
Long, V.	Stodart of Leaston, L.
Lyell, L.	Sudeley, L.
Mackay of Clashfern, L.	Thomas of Swynnerton, L.
Mansfield, E.	Trefgarne, L.
Margadale, L.	Trenchard, V.
Marshall of Leeds, L.	Trumpington, B.
Mersey, V.	Young, B.

On Question, amendment agreed to.

[Amendments Nos. 34 to 37 not moved.]

10.59 p.m.

Viscount Trenchard moved Amendment No. 38:

Page 5, line 9, leave out from ("class") to end of line 11 and insert ("and who—

1. (a) in the case of a ballot in which votes may only be cast on one day, are in the employment of the employer on that day; or
2. (b) in any other case, are in that employment on the qualifying day.

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

1. (a) falls after the last of the days on which votes may be cast in the ballot; or
2. (b) is so long before that date as to be unreasonable in relation to that ballot.").

The noble Viscount said: I have already spoken to this amendment with Amendment No. 24. I beg to move.

Viscount Trenchard moved Amendment No. 39: Page 5, line 14, after ("vote") insert ("—(a)").

The noble Viscount said: The same applies. I have already spoken to Amendments Nos. 39 and 40. I beg to move.

Viscount Trenchard moved Amendment No. 40:

Page 5, line 15, at end insert ("; and (b) in a case which does not fall within subsection (2)(a), know, before they cast their votes, which day has been specified as the qualifying day.").

[Amendments Nos. 41 to 46 not moved.]

Lord McCarthy moved Amendment No. 47:

Page 5, line 33, at end insert— ("(8) Any employer or employee affected by an agreement may refer a question whether the conditions of this section are satisfied to an industrial tribunal which shall make a declaration determining the question. (9) A reference may be made under subsection (8) within one month before or three months after the date of the commencement of the ballot.").

The noble Lord said: We have almost come to the end, at least for tonight. This is an extremely modest small amendment which I shall move in a moment, appropriately at this time of night. What we are saying is that, since the Government are now going to have ballots and since it is on the basis of 80 per cent. of those entitled to vote or 85 per cent. of those voting, surely something should be done to see that there is some kind of reference point if there is a disagreement about who should do this thing and what the result would be. Therefore, if there is dispute about the result of such a ballot or whether the conditions are satisfied—for example, whether the ballot is conducted in secret, or so far as is practicable all those entitled to vote are given an opportunity to do so—these issues should go to an industrial tribunal. There would be endless debate about what was right and what was wrong, and in the end someone would have to decide. We are saying we want a simple solution: let the industrial tribunal decide whether a ballot was properly held under the Bill. I beg to move.

Viscount Trenchard

I am afraid I must resist this amendment which the noble Lord has moved so briefly, and I thank him for that brevity. The suggestion that either employer or employee be able at the time of a ballot to check its validity is not one that we wish to accept. We believe that the whole basis of this Bill is that certain things require doing if protection is to be given to employees against unfair dismissal. To put into the Bill a requirement on tribunals to check the validity of a part of the procedure as it goes along would be an enormous extra burden—one not really required.

The conditions for a ballot are briefly but clearly set out in subsection (4). Individuals who believe after a ballot has been taken, that it has not been taken fairly, do have recourse to the High Court. We therefore believe that we should leave it like that at present and that it would be quite wrong in this Bill to put a requirement on industrial tribunals to give advanced views on the validity of one part of an agreement and the way in which it has been conducted.

Lord Campbell of Alloway

I very briefly at this hour support my noble friend the Minister. Your Lordships may remember the ETU ballot-rigging case—a very sad case. The noble Lord makes a grimace. It is not really wholly appropriate to do so, because this was a situation where there was ballot-rigging and it was dealt with in the High Court. The purpose of mentioning it was not to cause the noble Lord, Lord Wedderburn, any particular pain, but to point to the fact that this amendment is really totally misconceived; that it should never go before an industrial tribunal as a matter of law; and that if there is a serious question of impropriety in the taking of the ballot, it should go to the High Court. There is precedent for it and one of the precedents is the ETU case and I make no apology for mentioning the fact.

Lord McCarthy

It really is astonishing to be told at this time of night that a small group of workers—for example, 100; let us give them a chance—who conduct their ballot and get 84 1/2 per cent. and they work it out that they have really got 85 per cent., but the employer says 83 per cent., should go to the High Court. We are solemnly told at seven minutes past 11, that they should go to the High Court—hundreds and thousands of them all over the country should go to the High Court. I wonder that the noble Lord did not say that they should go to the Master of the Rolls!That is what we are being told.

We are given as an example the ETU ballot-rigging case. We all know that that was a scandal, and the reason why it was a scandal was that it took the ETU seven long years of litigation to get it settled and thousands and thousands of pounds, and they had to be expelled from the TUC in the meanwhile. We are told, "Use that, go to the High Court; do what the ETU did". We can only come to one conclusion. It has been clear all night. My noble friend beside me says that they are not serious. The fact is that the Government do not expect this machinery to work; they do not expect thousands and thousands of people to have ballots and if they get 84.2 per cent. to go to the High Court. What they expect to happen is that there will be no ballots, and slowly and insidiously trade unions will be forced to accept non-unionists because they cannot go to the High Court, and the closed shop will collapse. That is what it is all about and that is why we move this amendment.

Viscount Trenchard

I would only very quickly say that I do not think that the noble Lord's scenario begins to be likely or to make sense at all, and in any event the person holding the ballot and responsible for it will add up the vote, will declare it to the employer and the union, and will declare what percentage of people eligible has voted. To have industrial tribunals to look into the machinery for which he is responsible, and the possibility that he may—may only in the unlikely case of individual employees or employers take a case to an industrial tribunal—have to give evidence and make clear what took place; to have a situation where checks on ballots and queries on ballots of those who do not agree with them, can all be deluged on to industrial tribunals, is really not a practical suggestion.

Lord Wedderburn of Charlton

Before the noble Viscount sits down, although this is a late hour, as my noble friend has said, may I say that this is a most important matter. This is something upon which the noble Viscount's noble friend Lord Campbell of Alloway plainly relied, because the noble Viscount first mentioned going to the High Court. First, as the tribunals are to be out, what is the procedure for going to the High Court? Is it a writ, a normal action, a declaration, interlocutory proceedings—what is the procedure envisaged?

The noble and learned Lord the Lord Advocate is here and, although he will disclaim it, being a Scottish lawyer, he knows the High Court as well as I do, and he will no doubt advise us if he wishes. I make that point because I do not want to take unfair advantage; we have a Law Officer in the House and we are most grateful.

The second point turns out to be even more important. It is not just the expense and delay of the High Court. The tribunals are somehow not suitable judicial bodies to hear the sort of evidence that will come out. What sort of problem is this that has suddenly been ferreted out in the midst of the procedure? The noble Viscount shakes his head; he can answer my question in a moment. It is, as was said about the English common law, found in the interstices of procedure and the real problems of legal machinery, of course, are always discovered, or very nearly always discovered, in the interstices of procedure. What is it about the procedure, or is it the composition of the tribunals, that makes them bodies that are defective for this particular kind of evidence? Is it that they have a tripartite character? We need some explanation from the Government as to why they do not trust, find incompetent, or find inadequate industrial tribunals for hearing this type of case, and in particular, as the noble Viscount has said—the most important point of all—this type of evidence. So what in the High Court, and how, and why not the tribunals for that?

Lord Mottistone

Before my noble friend replies, could I ask both the noble Lords, Lord McCarthy and Lord Wedderburn, if either of them have ever taken a case to an industrial court personally?

Lord Wedderburn of Charlton

Yes.

Lord Mottistone

I do not mean that they have been a member. I ask whether they have taken a case as one of the parties.

Lord Wedderburn of Charlton

The noble Lord has asked me a question and I will reply. I have taken a case to the industrial tribunal and I have taken a case to the employment appeal tribunal. I do not claim a great expertise. Many people who are not lawyers represent workers and employers at tribunals. The noble Lord may well have been involved in more cases than I have.

Lord Mottistone

I am not talking as a lawyer; am talking as a person who has taken a case to an industrial tribunal. I just wondered whether either of the noble Lords had ever done that.

Lord McCarthy

I wonder whether the noble Lord could tell us the point of this question.

Lord Mottistone

Because they would then perhaps be talking from experience rather than theory.

Viscount Trenchard

In trying to hurry, one succeeds in going more slowly. In relation to what is suitable for the High Court, I shall leave it to my noble friend to give a lawyer's answer. But as I understand it, the High Court possibility—and I tried to describe it—would be there for someone who believes that there was something wrong with the ballot or the way in which it was conducted. Therefore, if they want to refer a ballot that has taken place, that they believe has been invalid for any reason, I believe that they can take it to the High Court, and it would be appropriate for them so to do.

On the queston of the suitability of industrial tribunals, it remains the Government's view very clearly that industrial tribunals are a quite inappropriate form for deciding the issues likely to be at stake if a ballot is challenged. Of course, the first point of responsibility, as I have said before, is the person in charge of the ballot, who will declare a result. This is a whole new area that we would be throwing into the field of industrial tribunals rather than the individual cases which they otherwise would have to judge. I do not believe that there is a need for this sort of procedure. The law does not compel the holding of ballots. The law concerns only unfair dismissal. This bears on what I tried to suggest—that it was not an appropriate amendment or clause for this Bill. If trade unions are in doubt about the result of a ballot, they should play safe and not seek the dismissal of non-unionists.

11.15 p.m.

Lord Underhill

Assuming a man is dismissed from his employment as a result of a ballot on a closed shop, as he goes to the tribunal and it all depends on the voting percentage, what does the industrial tribunal do? Does it say, "Go to the High Court", or deal with it?

Viscount Trenchard

If the case goes to the industrial tribunal as an individual complaint, the first thing presumably the industrial tribunal will do will be to take the evidence of the person conducting the ballot in accordance with subsection (4), ask for the results, ask for the conditions, ask for the entitlement to vote checks, and—which is what the tribunals are there to do—check whether in that particular case of unfair dismissal the results were in fact valid.

Surely, where we are not expecting huge numbers of wrongful or unfair dismissals, to allow or encourage specifically in the Act this kind of, "Will you judge in advance whether this ballot was fair in case there is any case on it?" is just not appropriate.

Lord Campbell of Alloway

May I seek to come to grips with Lord Underhill's point? There is a distinction between the jurisdiction of the industrial tribunal if it is invoked in relation to unfair dismissal and if in that context the question as to whether the ballot was this way or that way arises. That is one type of problem. The type of problem that I was dealing with has been misunderstood by the noble Lord, Lord Wedderburn. I was dealing with the case which did not necessarily involve unfair dismissal at all but gave rise to the problem of whether this was a rigged ballot. In those circumstances, it is wholly appropriate that the High Court should retain its exclusive jurisdiction.

There is this distinction. They should be kept apart. Because the High Court jurisdiction is appropriate in one set of circumstances, it does not mean that in any sense, as was suggested by the noble Lord, Lord McCarthy, I at all events in some way denigrated the value of an industrial tribunal review.

Lord McCarthy

When the noble Lord gets in to help the Government, he gets them further into the mess. He is now telling us that it might be that an industrial tribunal would get in. That is what the noble Viscount is saying. He said in answer to my noble friend's question that if it came about that somebody was unfairly dismissed, or claimed he was unfairly dismissed, and went to a tribunal and said, "But the ballot was wrong. It was rigged"—and of course it might have been two years earlier, and they might have thrown away all the records then the industrial tribunal, not the High Court, despite what the noble Lord said, would not have exclusive jurisdiction. But that is not so if what the noble Viscount says is right, because then the industrial tribunal would have jurisdiction, not the High Court.

It would be for the industrial tribunal, says the Minister, to decide one year or two years after the event whether in fact the ballot had been properly run. We say that that is nonsense. If you admit that you would in fact de facto be giving to an industrial tribunal two years after the event the job of foraging around and trying to find out whether a ballot had been fairly run or not so that you could decide whether a man was fairly dismissed or not, it would be much better if you voted for our amendment.

Lord Mottistone

What the noble Lord, Lord McCarthy, has been describing would happen anyway, even without his amendment, so there is no need for his amendment.

On Question, amendment negatived.

On Question, Whether Clause 2, as amended, shall stand part of the Bill?

Lord McCarthy

I shall not delay the Committee for long in view of the hour. We oppose this clause, which we regard as extremely important. The clause is designed to do two things. The first is to create a category of specially deserving people in cases of unfair dismissal, or those subject to pressure short of dismissal, and, on another occasion, we shall be discussing all the extra special advantages in terms of compensation and awards which will be given to those who are dismissed on grounds of union membership. We do not accept that this is a true and proper comparison. We do not accept that the non-unionist, the man who does not want to join a union, is in exactly the same position as the man who wants to join a union and is prevented from doing so. We do not accept the parity of those two positions.

We regard the right to join a union as an aspect of the right to combine; the right to self-defence in defence of trade union interests, and we would maintain, and have maintained, that before the 1971 provisions for unfair dismissal, that was accepted in law. We maintain that the right not to join a union is an aspect of the right to dissent, the right not to co-operate, the right not to accept certain kinds of tasks and obligations. We maintain that in real life, neither of those rights can be allowed in an absolute form. Not all people have the right to combine. Not all people have the right to dissent. We must pay our taxes, compulsory sick pay or superannuation schemes, and we cannot look at these two rights as though they were absolute and two sides of the penny. We do not believe that those who are unfairly dismissed on either of these grounds are in some special category, as the Government will be arguing when they defend further clauses of the Bill later when we debate the measure again.

But the second part of the Bill is to institute the regulations concerning ballots in respect of existing UMAs, and we have tried, as noble Lords in other parts of the Committee have tried, to mitigate and moderate these in various ways. We have tried to reduce the numbers in the votes and produce other ways of doing it—through trips and other methods—and finally we tried to get the Government to agree that they should find some mechanism for deciding whether or not the vote, however run, was fair. On none of heset have the Government been prepared to give way. I return to the point I made earlier: the aim of the clause is not to help UMAs to become legitimate. It is to increase the reasons why people should object to being union members and to undermine union membership agreements, and for that reason we oppose it.

Viscount Trenchard

My noble friend Lord Gowrie and I have already given the answers to the arguments of the noble Lord, Lord McCarthy, amendment by amendment as we have gone through the clause. The Government are not anti-union. They are not even anti-closed shop, and are not nearly so restrictive of closed shops as many other societies. They believe in a balance between individual liberty and the encouragement of strong and responsible collective bargaining. The public opinion polls, of which I quoted only one, have shown quite consistently not only the national public opinion but the opinion of trade union members themselves. I believe that noble Lords on the Front Bench opposite, who have had long years of intimate connection with this world, starting in a period when the balance of power was extremely different from what it is today, are the ones who are living in the past. I believe that this is a fair measure, a balanced measure, and I commend the clause to the Committee.

11.26 p.m.

On Question, Whether Clause 2, as amended, shall stand part of the Bill?

Their Lordships divided: Contents, 48; Not-Contents, 12.

DIVISION NO. 4
CONTENTS
Airedale, L.	Kinnaird, L.
Alexander of Tunis, E.	Long, V.
Avon, E.	Lyell, L.
Aylestone, L.	Mackay of Clashfern, L.
Belstead, L.	Mansfield, E.
Campbell of Alloway, L.	Margadale. L.
Cathcart, E.	Marshall of Leeds, L.
Cork and Orrery, E.	Mottistone, L.
Crathorne, L.	Murton of Lindisfarne, L.
Davidson, V.	Norfolk, D.
De La Warr, E.	Rochester, L.
Denham, L.—[Teller.]	Saltoun, Ly.
Elliot of Harwood, B.	Sandys, L.—[Teller.]
Elton, L.	Seear, B.
Faithfull, B.	Skelmersdale, L.
Ferrers, E.	Stodart of Leaston, L.
Glanusk, L.	Sudeley, L.
Glenarthur, L.	Swinton, E.
Gowrie, E.	Thomas of Swynnerton, L.
Hankey, L.	Trefgarne, L.
Harvington, L.	Trenchard, V.
Henley, L.	Trumpington, B.
Kilmany, L.	Wilson of Langside, L.
Kilmarnock, L.	Young, B.

NOT-CONTENTS
Bishopston, L.	McCarthy, L.
Boston of Faversham, L.	Oram, L.
Collison, L.	Pitt of Hampstead, L.
Jacques, L.	Ponsonby of Shulbrede, L.—[Teller.]
John-Mackie, L.
Llewelyn-Davies of Hastoe, B.—[Teller.]	Underhill, L.
	Wedderhurn of Charlton, L.

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

Resolved in the affirmative, and Clause 2, as amended, agreed to accordingly.

Lord Denham

I beg to move that the House be now resumed.

House resumed.