§ 8 p.m.
§ Lord Glenarthur
My Lords, I beg to move that the Funds for Trade Union Ballots Order 1982 be approved. This order, which will come into operation on 16th July, extends Section 1 of the Employment Act 1980. This is the section which empowers the Secretary of State to make regulations to establish a scheme which will allow payments to be made towards expenditure incurred by independent trade unions which hold secret ballots falling within the purposes set out in subsection (3). These purposes include ballots for trade union elections, the calling and ending of strikes and certain other matters. The Government's consultative document Proposals for Industrial Relations Legislation, which heralded the 1982 Employment Bill presently 966 before your Lordships, proposed that the list of purposes I have just described should be extended to cover votes on wage offers. This followed representations from several organisations, including the CBI and the Royal College of Nursing.
The order now seeks to implement this proposal by adding a new paragraph (f) to subsection (3) of Section 1. I do not propose to weary your Lordships by reading the text of the paragraph, but noble Lords will have noticed of course that it goes a little wider than wage offers and covers proposals affecting the terms and conditions upon which people work or are employed. In addition to the amendment to which this order gives effect, the Secretary of State intends to make regulations to amend the current scheme. This current scheme, the Funds for Trade Uniions Ballots Regulation 1980, came into effect on 1st October 1980. A draft of the amending regulations was placed in the Library on 14th June and the intention is that the new scheme should come into effect on 1st September 1982.
The provisions for secret ballots in the 1980 Employment Act and in the regulation made in connection with it were introduced to implement the Conservative Party's manifesto. The manifesto said that every encouragement would he given to the wider use of secret ballots throughout the trade union movement by the provision of public funds for postal ballots for union elections and other important isssucs.
There is wide public support for more extensive use of the secret ballot and, we believe, a greater recognition within the trade union movement that secret ballots on important matters are desirable. I hesitate to pre-empt the sort of lengthy discussions we could find ourselves involved in next week when the principle of this matter will raise its head in Committee on the 1982 Bill. However, it is indisputable that ballots of this sort do achieve greater membership involvement in decision-making. They give trade union members the opportunity to record their decisions without others watching and taking note. That is not the case at mass meetings with the scope they offer for intimidation or manipulation.
I hope this short explanation of the draft order is all that is needed. As I have already said, I do not expect we shall escape next week without further discussion of the related general principles involved; but with that I commend the draft order for your Lordships' approval. I beg to move.
§ Moved, That the draft order laid before the House on 14th June be approved.—(Lord Glenarthur.)
§ Lord McCarthy
My Lords, this is indeed a strange story. We are facing here a draft order to provide funds for trade union ballots. This arises, as the noble Lord said, out of the provisions of the 1980 Act which gave the Government power to subsiide ballots for a very wide variety of purposes—for trade union elections, trade union amalgamations, changes of rules and, of course, strike decisions. The Government could run a scheme and trade unions, under the provisions of that scheme, could provide funds to assist them in running ballots for a very wide variety of purposes. But in the 1980 Act there was a phrase which was of very much concern to us on this side of the House at the time; indeed, it was of very much concern to those of us in another place, 967 because it said that the Secretary of State could provide for "any other purposes".
We sought to discover what those other purposes were, but we could not discover what they were. That was not surprising, because it appeared at first sight that the wide variety of purposes provided for specifically in the 1980 Act would cover most purposes one could envisage. So we did not know; and the years rolled on and nobody appeared to want to know about the Government's scheme. The unions at the Trades Union Congress decided not to co-operate with the Government's scheme. It is perfectly true that a very small number of professional associations—one of the more important, I think, being the Society of Remedial Gymnasts—applied for some kind of inclusion in that scheme. We understand that there are a very small number of professional associations which are registered under the scheme. But the fact is that for all practical purposes the scheme with the ballots' wide variety of purposes has not been used. Indeed, in another case in the considerations in the Standing Committee on Statutory Instruments, the Government actually gave as their reason for extending the scope of the provisions of the 1980 Act the fact that so far it had not been used.
The Minister of State said that in fact he was bothered about the cost of the scheme, but because the cost of the scheme was much less than they had thought it might be, it seemed perhaps a good idea to widen the scope of the scheme. That is a strange reason—to widen the scope of a scheme because it is not being used. So we were rather concerned about the particular ways in which the Government wished to widen the scope of the scheme, and we turned first of all to the draft Statutory Instrument itself. It says:The following purpose is hereby specified as a purpose within subsection (3) of section 1 of the 1980 Act:—Obtaining a decision or ascertaining the views of members of a trade union"—here it comes—as to the acceptance or rejection of a proposal made by an employer in relation to the contractual terms and conditions upon which or the other incidents of the relationship"—a strange phraseology—the other incidents of the relationship whereby a person works or provides services for the employer.In an attempt to discover what these other incidents of relationships could be, we turned to the memorandum issued by the Department of Employment and contained in the 26th Report from the Joint Committee on Statutory Instruments. Unfortunately, the memorandum by the Department of Employment is much less explicit than the order itself on this matter, because it says:The aim is to make a scheme which extends to ballots in which the purpose of the question asked is to obtain the decision or ascertain the opinion of members of the trade union as to acceptance or rejection of a proposal made by an employer which broadly affects the terms and conditions on which people work or are employed.There is still nothing about "other incidents".
So in an attempt to discover what the other incidents are we went to Hansard and turned to the report of the First Standing Committee on Statutory Instruments. There indeed is the first reference to a proposed draft 968 regulation, because the Under-Secretary of Employment in another place at column 3 of the report of the First Standing Committee on 6th July says:I should make it clear that the order merely adds to the lists of purposes which can be included in the scheme made by regulation by the Secretary of State and that regulations amending, the 1980 scheme will now have to be made.So we are now facing the need to find out what these regulations amending the 1980 scheme are, because they may tell us more about these incidents.
We are told that a draft of the proposed regulations was deposited in the Library of the House on 14th June. I am bound to say, the noble Lord having said that a draft of the proposed regulations was deposited in the Library of the House on 14th June, that it was not deposited in the Library of this House. Indeed, it was not in the Library of this House 50 or 60 minutes ago. I think that it got into the Library of this House about half-an-hour ago, as a result of the very fine efforts of the staff of the Library of this House, who ran up and down the corridors until, somewhere, they found a copy of these draft regulations in the Library of another House. Therefore, in the meantime, we had to bend ourselves working our way through the report of the First Standing Committee of the House of Commons to see what we could find.
We found the most amazing examples of these other incidents of the relationship. For example, we were told about paragraph (f), which was mentioned by the noble Lord the Minister tonight. That contained another very funny phrase:Obtaining a decision or ascertaining the views of members of a trade union"—different words again—to the acceptance or rejection of a proposal made by an employer in relation to any one or more of the following matters"—we are getting to it now—that is to say, remuneration, whether in money or otherwise, hours of work, level of performance".We go on reading.
Naturally enough, Members of the House began to ask what were these "otherwises"? Were they connected to the incidents? Eventually, the Minister of State opened his mind to the Committee and gave a very wide variety of reasons. He said that it might be stamps, bonds, expenses, luncheon vouchers, luncheon coupons, special pension schemes, health insurance or company cars. He said that one could almost go on ad infinitum.
So here we are. The Government have introduced a scheme for subsidising ballots. The scheme languishes unused. The scheme covers strike ballots. But the Government want to supplement that scheme with the money lying about, to cover not strike ballots, but management offers. Those offers are to include not simply offers about wages, but offers about other incidents, and those other incidents are to consist, for example—although we could go on ad infinitum—of free stamps, bonds, vouchers, coupons, special pension schemes, health insurance or even company cars.
This is the best example we have yet had of ballotomania. We are to have ballots subsidised from public funds about luncheon vouchers, about pension schemes, and so on ad infinitum. What can the meaning of this be? We on this side are not saying that we are against 969 ballots, though one must have a sense of proportion. We are not saying that we are against the use of public funds to assist trade unions. It was during the period of the last Labour Government that the present provisions, which the present Government have continued—and I give them credit for that—to help trade union education were first introduced. But one must have a sense of proportion. Are we to have the Government giving public money for the Society of Remedial Gymnasts to have ballots on luncheon vouchers? This really is ballotomania and what can be the reason?
In a search situation like this, one is bound to be a little suspicious. The fact is that we have been told many times that the Government are taking a step by step approach. They have got their seven league boots well and truly on, and we are to have the son of the son, or the daughter of the daughter of the daughter, of the Employment Act. Before the present Employment Bill is passed, another Employment Act is peeping its way round the corner, and it will be about ballots on everything. Why? It is because the Conservative Party, or a certain section of it, does not want to help trade unions. It believes that if it can usher in a period of ballotomania, it will demonstrate to itself, if to nobody else, that trade union leaders and trade union organisations are unrepresentative, even on luncheon vouchers.
§ 8.15 p.m.
§ Lord Wedderburn of Charlton
My Lords, I rise to speak in this debate only because of the state of the documentation that my noble friend and I found—or rather did not find—when we began to search this evening. My noble friend is not fully aware of the fact that I acquired the full documentation only after he had come into the House, and I rise, therefore, to make a separate point on this scheme. In order to make it clear to your Lordships, I must put it carefully, and may I say immediately that I join my noble friend in wishing to make it quite plain on the record that nothing that we say is any criticism of the staff and officers of this House, or, indeed, of the other House? They could not have been more helpful and they went beyond all measure to try to find the documents concerned.
As my noble friend has said, when we read the draft order it seemed rather a puzzle. As he explained, it relates to ballots which fall within the formula of,contractual terms and conditions upon which or the other incidents of the relationship whereby a person works".I am stressing a different point, "a person", for the moment. Then we looked at the report of the debate in the other place and, as he said, we found that there was in some dark, obscure place another set of draft regulations. The Minister will correct me if I am wrong, but tonight's order is an affirmative resolution order and the other draft regulations are not in that category. Therefore, they do not have to go through the procedure that we are having this evening.
Nevertheless, we suspected, when we saw the report of the debate in the other House, that you could not understand the meaning of words that I have read out from Regulation 2 of tonight's order unless you saw the other regulations which are called the amending regulations because they amend the principal regulations of 970 1980,Statutory Instrument NO.1252, as my noble friend has explained I wish to add that those principal regulations give the certification officer the power to make the payments, whereas tonight's order amends that part of the Act which provides for the purposes for which ballots may be held. As your Lordships will see, that is a distinction which is of some importance.
When we managed to put the documents together, it seemed to my noble friend and myself, as he suggested, that this was an exercise in desperation for finding further subjects for ballots, because it was very hard to see how these small unions which will ask for the money would want ballots upon the other incidents, which turn out to be ballots upon company cars, luncheon vouchers or season tickets. I should have thought that, if one had an offer like that, one would have a little meeting at which all hands would go up and they would say "Yes, please".
However, there is an even more serious point. I suspected that the reason why the words,conrtactual terms and conditions upon which or the other incidents of the relationship whereby a person works or provides services for the employer",were in that form in the order because proposals made by an employer which lead to a collective agreement frequently apply to a large number of people who are not in the union to whom it is addressed. One thinks immediately of a firm where there are unionists and non-unionists. The ballot would be among the unionists, although, because British trade unions and employers have an honourable record of demanding that collective agreements apply to non-unionists, that would include all the other persons. That is why I thought that the Government had got it right in tonight's order.
The trouble is that, when one looks at the draft amending regulations which are going through without any need for the affirmative procedure, one finds that there are some very remarkable things which affect it. These amending regulations first set out, as my noble friend quoted, the purposes of the ballot in respect of which payment can be made—parallel, it was thought, with tonight's order. That is:Obtaining a decision or ascertaining the views of members of a trade union as to the acceptance or rejection of a proposal made by an employer in relation to any one or more of the following matters—that is to say, remuneration, whether in money or otherwise, hours of work, level of performance, holidays or pensions".A great deal of the trouble in the other place was caused by the use of the word "remuneration". If one uses the word "remuneration", it should surely read "whether in money or money's worth". You do not have an "otherwise" remuneration. You have an "otherwise" emolument. That is what held up members of the other place. A small drafting point of that nature would not matter. Nor would it matter that the Government are putting into the amending regulations the ability to use not only the Post Office but the new privatised postal service. That is a controversial matter which might have got an airing in the House.
The most important point, however, relates to amending Regulation 5. Regulation 11 of the principal regulations sets out the ballots in respect of which the certification officer call make his payments. Regulation 10 gives the power, provided that it falls within Regula- 971 tion 11. A new paragraph is added to the amending regulations empowering the certification officer to make payments in respect of the ballots there described. This makes reference to the new paragraph in the amending regulations—that is, to the proposals relating to remuneration, whether in money or otherwise, which I have just criticized. So it is linked in with the amending regulation which is meant to be the parallel of the order which we are debating tonight. If you want the money for the ballot which is being put within the scheme tonight, you do not get it under tonight's order. You get it under the amending regulations, paragraphs 4 and 11, as amended by the draft regulation going through on the negative procedure which would never have seen the light of day had we not chased it.
How did they amend the payment provisions? They have got the proposal by the employer, but Regulation 11 is specifically meant to provide for this by way of the certification officer's power to pay. That regulation says that he can now pay in relation to sub-paragraph (h):In the case of a ballot containing a question"—I suppose that is the same as "a proposal", but it is a pity that the same word is not used—within paragraph (f) of Regulation 4 above, that only those persons who were union members and were affected by the proposal were entitled to vote".Those are the key words. This is a terrible mess. Only those persons who were union members and who were affected by the proposal were entitled to vote. The Minister in another place said that he could go on ad infinitum in respect of the other instances of luncheon vouchers and so on which fell within the scheme. It is bad enough not knowing where that stops.
One could go on for a very long time, but my view is that this order should be taken back and looked at again with the amending order, partly because it was not available until too late an hour. That is a minor point. Now that we have seen it, the whole thing is a terrible mess. And why? Because the proposal on which a ballot is being taken, in which unionists are voting, may be part of a package. It would be quite extraordinary to have each proposal set out, although I shall demonstrate in a moment that this would be the necessary conclusion from the regulations as they are going through tonight—the regulation we are considering and the regulation which is going through un-discussed.
Non-unionists may be affected in a different way from trade unionists. Parts of the package of proposals may not affect the trade unionists in practice. That may be said to be an academic point. Let me make it much more practical. Noble Lords who have experience of these matters will recognise the situation. This is an illustration of the Government's failure to look at actual bargaining structures in their zeal to increase the range of ballots. They have not thought about it. Let us take the case where an employer employs some Union A members, some Union B members and some non-unionists, all within the same shop. That is the majority situation. Closed shops are not the majority case. So we have got Union A members, Union B members and non-unionists who are affected by a package of proposals. Some of 972 the proposals will affect Union A members, some will affect Union B members, some will affect both Union A and Union B members and others will affect the non-unionists. It might be that they will affect all of them. Then Union A members and Union B members could vote together. But in many situations, before a ballot can be arranged, the employer and the officials must sit down with the certification officer and go through the entire package of the collective bargaining arrangements being proposed.
The Government want there to be more formal and more detailed bargaining arrangements—not necessarily American-style contracts but clearly written documents. So they must go through all this and say that paragraph 2 affects Union A members, so we had better have a separate ballot on that; paragraph 2(b). affects the non-unionists, so we cannot have a ballot on that. I am wrong; you can have a ballot, because tonight's order relates to "any person". But you will not get the money, because, under the money regulations as amended by the amending regulations, you cannot be paid it. So what one has is a sprawling mess of hastily conceived documents for some reason, which the Government surely must explain further, which involves pushing a set of regulations through this House which makes sense. Tonight's order makes sense. It extends the range of the ballot, although the Minister has not explained to us why it is needed.
But we find on inquiry, at the last moment, that although the scheme will include this kind of ballot there will be cases (I shall not try to quantify them because I do not know what the percentage is; however, I have only to show that there is one such case to demonstrate that it is absurd) where what is within the scheme under tonight's order will not allow for payment by the certification officer.
I was put on to this point by a sentence which I could not believe in the 26th Report of the Joint Committee on Statutory Instruments of 22nd June. On page 3, the Joint Committee reported:A copy of the draft of the proposed amending regulations is attached for information. It will be seen from regulation 4 of that draft that this amendment to the scheme will not cover all the ballots, which include a question falling within the subsidiary purposes covered by the new purpose but will extend only to ballots in which a question is asked about offers relating to wages and certain other major terms and conditions".I could not understand the reason for that discrepancy, and the Minister has not explained it. It is a different point, of course. It is the range of topics which can be included. Why you should have a wider range of topics which can be allowed than can be paid for I cannot understand. Now I find that you may have a range of topics which can be balloted on within the scheme where payment is totally impossible, even though at first sight they seem to fall within tonight's order. There is a certain level of law-making process, and these regulations, however useless they are going to be—because most trades unions will have nothing to do with them—involve public money. Surely the Government should have a little look at this again. It could perhaps go through tomorrow with a word or two amended, but as it stands it is not satisfactory.
§ 8.30 p.m.
§ Lord Glenarthur
My Lords, this is the first time I 973 have had to face the joint barrage of the noble Lords, Lord McCarthy and Lord Wedderburn of Charlton. I believe there are various points about which both noble Lords are under misapprehensions. First, the noble Lord, Lord McCarthy, talked about current scheme statistics. It might be helpful if I explain to him that from the introduction of the scheme from 1st October 1980 until 30th June 1982, 24 applications have been received from 19 trades unions in respect of 29 ballots. The certification officer has authorised payment in the case of 10 applications, and in a further 10 no payment could be made. The remaining 4 applications, covering 5 ballots, are still under consideration. It is expected that there will be payment for three of these applications, but the fourth application—which is that of the TUC affiliate Equity—has been withdrawn at the request of the union. I could go further and talk about the effect, which the noble Lord knows quite well, of the TUC boycott. The noble Lord talks about "ballotomania" to camouflage the embarrassing fact that the TUC will not allow its affiliated unions to draw on public money to assist them to ballot their members on important issues.
It is a matter of considerable regret, indeed concern, to the Government that the TUC has chosen to instruct its affiliated unions to boycott the secret ballot scheme, which was established under the 1980 Act. This policy, in the view of the Government, displays a remarkable inconsistency in approach on the part of the TUC, as the TUC along with other independent trades unions is quite prepared to accept public money when the Government finance the industrial relations training of shop stewards. It is a sad reflection of attitudes prevailing in the trade union movement that genuine attempts to assist trade unions to take the views of their memberships on important issues in a democratic manner, by use of the ballot box, are shunned in this way. I hope that the draft order which is now before your Lordships will be the occasion for the noble Lords opposite to persuade the TUC to think again.
The noble Lord went further. I do not believe he can really feel there is anything sinister about having a power to add to the purposes which the order describes. Surely it cannot be against the interests of trades unions to be able to recover money for ballots on a wider number of subjects. It is up to the unions to decide whether to hold a ballot on a wage offer or not. Of course the scheme covers ballots on minor matters such as luncheon vouchers, but this is verging on the ridiculous. Most ballots are likely to be about major wage offers or about other offers changing terms and conditions of employment in this way. The noble Lords opposite mentioned company cars. There are many people who have a significant role to play in some unions in this country, who are employed and have cars of substantial proportions which can in no way not be described as part of their conditions of employment.
With regard to other incidence of relationships, they are designed to ensure that every kind of benefit which might be given to employees or workers by employers is covered by the order, whereas a benefit given under a contract of employment is not. I cannot believe there is anything sinister in this. The noble Lord, Lord Wedderburn of Charlton—and this is the last point I intend to make—talked at length about the draft amending regulations. The situation is quite straight- 974 forward. The draft amending regulations have not yet been laid. After they have been laid, noble Lords may pray against them if they wish.
I must end with a word of apology. Noble Lords opposite were unable to find or obtain the draft amending regulations. They should have been in the Library, but they were not there. I can only apologise for that. I do not know why that happened. I will take steps to find out why they were not there and will write to both noble Lords.
§ Lord Sandys
My Lords, the procedures of the House would suggest that the noble Lord, Lord McCarthy, should precede his remarks with, "Before the noble Lord sits down…" because there is no opportunity for a second speech on the subject. If the noble Lord has a question, would he like to follow the usual procedure?
§ Lord McCarthy
My apologies, my Lords. Before the noble Lord sits down, would he care to answer any of the questions posed to him by both myself and my noble friend Lord Wedderburn of Chariton? I counted that my noble friend Lord Wedderburn of Charlton got to at least seven questions, and would the noble Lord, Lord Glenarthur, answer at least one of them?
§ Lord Glenarthur
My Lords, the noble Lord, Lord McCarthy, and his noble friend fired questions at a most alarming rate. I make no excuse at all for not being able to take them all in at the rate they put them. I believe that I have covered the main points of this order and the amending regulations.
§ Lord Wedderburn of Charlton
My Lords, before the noble Lord, Lord Glenarthur, finally resumes his seat, while I appreciate what he says, I hope that he and his colleagues will not feel that we were trying to fire fast shots at him. Indeed, I recollect that we passed one another in the corridor very rapidly shortly before this debate. Is my noble friend Lord McCarthy not right to this extent: that it will not do to say that we may pray against the amending regulations, and to give no further answer than that? Tonight's order will validate a certain area of ballots as being within the scheme, and the amending regulations are plainly meant to provide the money and machinery. So tonight's order and the amending regulations go together hand in glove. Indeed, tonight's order is the glove without the hand, because without the amending regulations the hand will not hand out the money. Would it not be right for the noble Lord the Minister at least to give your Lordships an assurance that the amending regulations will be looked at again, so that we do not pass without debate, or with the need to pray against them, regulations which, if they were looked at again, could well be put into proper shape? The noble Lord, Lord Glenarthur, should at least assure your Lordships of that.
§ Lord Glenarthur
My Lords, I am sure that my right honourable friend will take note of what the noble Lord says, and perhaps I might consult and write to the noble Lord on those specific points. One point that I did not cover and which I can now answer relates too the new paragraph (h) in Regulation 11 which he specifically raised. This new provision relates only to ballots on wage offers. It limits the eligibility to vote to trades union members who are affected by the proposal, as the noble Lord described. Thus, the views of those not directly affected—for example, in a different industry—would not qualify under the scheme; otherwise it would be possible to create a false impression of popular support for the trade union's lines.
One other thing I can say now is that Section 1 of the 1980 Act permits the Secretary of State to pick and choose for the purposes set out in Section 1 (3). That is what is done here. it was also done in regulation 4(b) of the main regulations. While understanding the concern of both noble Lords opposite about the order and draft amending regulations, it is not really very helpful of the noble Lords to criticise the Secretary of State for doing just what the legislation permits him to do.
§ Lord Underhill
My Lords, before the noble Lord sits down finally, I want to put this point of view. I am one of those who crave the right for affirmative resolutions.
§ Lord Sandys
My Lords, perhaps the noble Lord, Lord Underhill, will follow the usual procedure and precede his remarks with the words, "Before the noble Lord sits down…".
§ Lord Underhill
I did so, my Lords, but I will do so again. Before the noble Lord sits down, may I put this question? As one who tries to encourage the affirmative resolution wherever it is desirable, as opposed to the negative procedure, noble Lords need to have the fullest information. There are 10 or 12 noble Lords who have listened to this debate this evening and I am certain only two or three who really understand all the details. We have not had all the information placed before us, nor the answers to the questions put.
Surely, if we are to pass an affirmative resolution, all noble Lords need to have all the information and need to have the answers to the questions, which I can understand the noble Lord possibly cannot give at this stage. Would it not be reasonable to the House—not just to my two noble friends but to the House—to withdraw this Motion for 24 hours so that the matter can be looked at fully
§ Lord Glenarthur
My Lords, in view of what the noble Lord says and the feeling of the House, if it is the wish of noble Lords opposite to have a fuller explanation I will withdraw the Motion for 24 hours, as the noble Lord requests.
§ On Question, Motion, by leave, withdrawn.