§ House again in Committee on Clause 6.
Lord Wedderburn of Charlton moved Amendment No. 63:
Page 9, line 4, after ("complainant") insert ("(i)").
§ The noble Lord said: I rise to move Amendment No. 63 which is associated with Amendments Nos. 64, 65 and 68 to which, with your Lordships' permission, I shall also speak. These are amendments to Clause 6 78 which may be said to go to a part of the philsosophy of the Government's policy which is dear to the Government's heart. The Government have in another place, and to some extent here, stressed the importance of responsibility for one's actions. When we come to Clause 13—in some ways the most important clause in the Bill—it will be said that the trade unions must take responsibility in law for their actions. In Clause 6, as we have seen in previous debates on the clause, the Government are taking the view that not only should trade unions and their officials and members take responsibility for any actions which, by industrial action or by the threat of it, induce the unfair dismissal of a non-unionist but that the non-unionist must be allowed, whatever the consequences to industrial relations, to have the right to join those defendants in the tribunal and claim compensation from them.
But there is another theme which the Government have made a central feature of their case for the Bill, though it does not appear in this clause; namely, that the Bill is even-handed. Clause 6, with the new Section 76A(1)(b), shows that the person who can use this procedure of joinder must be a non-unionist. It is only to be used where:
the pressure was exercised because the complainant was not a member of any trade union or of a particular trade union".
It is true that the latter phrase could include a trade unionist who would not join another union, with the inter-union problems which that involves, but in general terms there is no equivalent provision in the Bill protecting trade unionists.
§ It may be asked, how could that be so because there would not be industrial pressure against their joining trade unions in general. Of course that is right, but what the amendments do is to introduce into the Bill an element of personal responsibility on the part of three kinds of people. First, managers who victimise trade unionists would be able to be joined as defendants by the trade unionist when he is dismissed, just as a shop steward can be joined by a non-unionist when he is dismissed; secondly, advisers who give advice to employers as to who to dismiss and who not to dismiss; and, third, consultants who may do the same. In other words, what the amendment says is that managers, consultants, advisers and in particular those who distribute black lists of workers—which are very common in some industries—should be as personally responsible for their acts as the shop steward and the union member, the Government insist, must be for theirs. It is a case of sauce for the goose and sauce for the gander.
§ It may be that some people say in regard to the first group that if it is a manager, the employer may dismiss him if he is preposterously wrong-headed in picking on trade unionists. I have no doubt that most employers would take that view, but not all of them would do so. Picking on trade unionists is known. My honourable and right honourable friends in another place wrote to the Guardian in October of last year citing the case in Scotland—the Lord Advocate is here and I am sure he will know of it—of a shop steward and active trade unionists being victimised. Foyle's has been mentioned in your Lordships' Committee this evening. A recent report by the Low Pay Unit in the case of stable workers and grooms, mostly women workers, showed that mere membership of the 79 National Association of Grooms was regarded in some circles, on advice from other people, as a cause for dismissal.
§ The matter goes further than that. So far as consultants and advisers are concerned, there are organisations in our society which, I am sure with all sincerity, regard it as their business to circulate black lists to employers urging them to dismiss people because they are militant trade unionists. They do it on a variety of grounds, and frequently they say it is because they are subversives and the like. But these are value judgments, founded always upon the simple fact that the worker in question is a militant or active trade unionist. I have a large file of illustrations of such cases taken from the newspapers. The ones I cite now are from the Guardian.
On 11th May 1974 there was the case of Strongs Limited. Having encouraged a worker to apply for a management job they then backed down and said they could not have him because he had been a Communist election candidate. This was not true but, for my money, it does not matter whether or not it is true or false. The person who sends it should take responsibility. Trade union activity was also involved, because the trade unionists rang up the number they found on a document and found that it was the number of the Economic League. Similarly, on 23rd and 24th May 1977 there was the case of Greenwich Reinforcement Limited. There was a workers' occupation. The files of management were found and the evidence led to the Economic League sending records of workers in this respect. In the case of the Great Southern Cemetery and Crematorium Group, in 1978 a confidential memorandum was found. It said that if there was the slightest suggestion of any information held against a proposed employee from this source, he was not to be engaged. The source was checked by the Guardian and it happened to be the Economic League. In 1979 there was an item in the Financial Times which indicated the same story. The Economic League has been more forthcoming recently than it used to be in the past. I quote the Assistant Chairman of the League in 1978. He said:
The League puts considerable effort into monitoring the activities of subversive groups and individuals.
They see it as their duty to send round this information about workers. Sometimes it is not wholly accurate or the full story.
§ I say that there is a parallel and I say it for this reason: that the industrial pressure which the union puts on the employer to dismiss the non-unionist need not be illegal industrial pressure. The clause says nothing whatever about it being unlawful. It need not even be in breach of the contract of employment. It can be a work-to-rule or a go-slow which does not break a worker's contract of employment. So lawful action can take you into the tribunal and make you liable for up to £30,000 in the joinder procedure. What is sauce for the goose is sauce for the gander. Why should not managers take a similar responsibility or, if your Lordships balk at that, why should not third parties, certainly in the case of untrue information and possibly in the case of information put out of context which causes, as my honourable friends in the 80 other place put it in the recent Scottish example, management to draw up a hit list of active trade unionists? Why should that not also engage personal responsibility in a tribunal?
§ We have debated tonight how many cases there are amongst non-unionists. There may be a few more than we suggested on this side, but I should be happy to show at length that for every non-unionist in this situation there are tens, dozens, perhaps more trade unionists whose militancy or even modest activity has been and is still being—and, in the recession, is increasingly being—victimised by a small minority of employers who should not only pay themselves but whose advisers and consultants should also be brought into the full light of public interest and display, be they the British United Industrialists, the Economic League or whatever other organisation they are. I beg to move.
§ 8.20 p.m.
The noble Lord, Lord Bishopston, says "Not enough" and I am bound to say that he might have taken the words out of my mouth; instead, he said them out of his own mouth from a sedentary position. The point we are discussing is quite simply the one where the employer was induced to dismiss the complainant by pressure which a trade union or other person exercised on the employer. That is the position—that the employer was induced to dismiss the complainant. Who is in the dock in this case? It is the employer. Who is responsible for the dismissal? It is the employer. Let us consider the person acting or purporting to act on behalf of the employer. Who is this person if it is not the employer in one form or the other? It is clearly someone who acts with the authority of the employer. The noble Lord, Lord Wedderburn of Charlton, asked about the manager. The manager would be acting on the authority of the employer and the employer would be the person responsible for the dismissal. If it is the manager who might have been the cause, clearly it is the employer who is the right person to defend in unfair dismissal proceedings.
The amendment also refers to an adviser or consultant to the employer, but again, it is up to the employer to decide whether he likes the advice of his adviser or his consultant. If he does not, then it becomes his decision to dismiss the employee, and his is the responsibility for the dismissal. Again, the employer is the right person to defend the unfair dismissal proceedings. Advisers only advise and consultants are there only to be consulted. If they go around forcing employers to do this, that or the other, then they cease to be advisers or consultants in any normal sense of the words.
Having dealt with the person acting on behalf of the employer, and with the adviser or consultant to him, we are left with only an associated employer. This term has been defined in legislation. The Trade Union and Labour Relations Act 1974 says in Section 30:any two employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control, or 81 if both are companies of which a third person (directly or indirectly) has control; and in this Act 'associated employer' shall be construed accordingly.Thus, at the very minimum we have two employers who are bound together as part of the same group of companies. If one suffers, ultimately they all suffer. So clearly, no employer is going to "join" an associate employer in tribunal proceedings even if—and I must say this seems pretty far-fetched—that associate employer puts pressure on him to dismiss the complainant. And why should an employee want to join an associate employer rather than his actual former employer? Ultimately, any compensation will come out of the same corporate purse.
I feel that the amendments of the noble Lord, Lord Wedderburn of Charlton, are—if I may say so—a little off-target. The right person to defend the unfair dismissal case in the situation envisaged by the amendment is clearly the employer, and there can be no sensible reason why the employee should want to "join" advisers, consultants or associate employers for the reasons I have given. I hope that your Lordships will agree that the Bill will be the better without the amendment.
§ Lord Campbell of Alloway
The noble Lord, Lord Wedderburn of Charlton, made two points with which I wish to deal very briefly. First, there was a sort of ex-cathedra pronouncement that the work-to-rule or go-slow does not involve a breach of contract of employment. That is not necessarily true in law. Secondly, the noble Lord introduced an irrelevance—another of what I have perhaps disrespectfully described on previous occasions as a "red herring". It is an irrelevance beyond the ambit of this clause for what appears to be the purpose of attacking an institution to which he referred as the Economic League. I am not here to defend any institution, least of all the Economic League, of which I know little. But it does seem to be a pointless exercise within the ambit of this clause in unfair dismissal. As the Front Bench says, unfair dismissal must be defended by the employer. It is the only point.
§ Lord Wedderburn of Charlton
May I deal with one of the points, at least, made by the noble Lord, Lord Campbell of Alloway? Perhaps I did not make myself clear. I meant, and hope that I said, that industrial action within the meaning of Clause 6 does not necessarily have to be industrial action which is in breach of a contract of employment.
§ Lord Wedderburn of Charlton
May I just finish the point? It is a very important point, because if it can be lawful but industrial action then it means that one is being joined in a tribunal for something which is less than a breach of one's contract of employment. I do not have the precise reference concerning that authority, although it comes on another clause; I hope to find that reference when we come to it. The name of the case, and it was a recent case, was Power Packing Limited v. Faust. It was either this year or last year, and if the noble Lord, Lord Campbell of Alloway, looks at that case he will find, at great joy 82 to his soul, that industrial action within the meaning of these terms need not involve a breach of contract, as it did not in that case.
I perfectly well apprehend that in most cases a go-slow or work to rule—even a work to rule since 1972 and the ASLEF case which the noble Lord knows of as well as I—usually involves a breach of contract of employment. That is true. Whether that is so in Scotland the noble and learned Lord the Lord Advocate will be able to advise us better. In England it is normally so, but is not necessarily so under the clause because of the authority of that case, if no other.
§ Lord Campbell of Alloway
I am obliged to the noble Lord. The case to which he referred is known to me and is authority for the proposition which he mentioned. It is not authority for the proposition which he mentioned and I noted; and if I am wrong in my notes it will be seen in Hansard tomorrow, and I apologise in advance. The proposition I noted was that the work to rule or go-slow does not involve a breach of contract of employment. It was only on that point that I rose to speak and I hope that I shall be forgiven.
§ Lord Wedderburn of Charlton
I was speaking too fast, I am sure. The work to rule or go-slow does not necessarily involve a breach of contract—not always, not 100 per cent. in every single case, as in the Faust case. That is a minor point.
The point put by the noble Lord the Minister struck me as astonishing. I take the point that consultants consult, that advisers advise, and that managers manage. That is what they are paid to do. What I am saying is that if one asks for some kind of equivalent pressure one will not find it, or at least one will not find it very often. One may find it from the associated employer, but there the noble Lord the Minister is on very weak ground with the associated employer in his answer, and it may well cause noble Lords to come back to this on Report.
Consultants and advisers—well, of course, you will not find the same sort of pressure. What I am saying is, that if it is a matter of social and personal and moral responsibility to be turned into legal responsibility, albeit that you have done nothing legally wrong—that is to say, ab extra to the Bill itself—then I cannot understand why a body which sends black lists with slanted information about some workers rather than others should not be made to come to a tribunal, and for the tribunal to say, just as it says to the shop steward, "You did nothing wrong in law because you did not break the contract of employment and you did not even induce a breach, but you took or organised industrial action, so we are going to make you 10 per cent. 50 per cent, responsible for the £31,000" I do not see why a body which has advised an employer about the trade union activities which cause him to be selected first, when he would not otherwise have been so selected, for this missile, should not come along and for the tribunal to say, "Well, not 50 per cent., not 20 per cent., but you were 10 per cent. to blame and you pay 10 per cent. of the £31,000".
There is a final point. The noble Earl, Lord Ferrers, kept saying that the right person to be the defendant is the employer. But apparently he is not the right 83 person to be defendant when it is a question of trade unionists as third parties. He is not even the right person to decide upon joinder. All power is to be stripped from the employer when trade unionists are the third party and the plaintiff is the non-unionist. But give us a plaintiff as a unionist, with the possibility of, in equal moral terms, joining a non-union or indeed simply third party associated employer, not a bit of it, say the Government. Really, whcn the Government come to read their case in Hansard, can it be surprising that this Bill is seen as an anti-union Bill?
I hate even to suggest to the noble Lord, Lord Wedderburn, that he may be producing somewhat of an irrelevance. I can only bring him back to the position in which we are. It is where the employer was induced to dismiss the complainant by pressure. Nobody else dismisses that man. It is the employer who is in the dock. He is the one who is being criticised; he is the one who has taken the action which is considered to be unfair. When the noble Lord says one ought to bring along a whole lot of people who operate black lists, I really think that is a irrelevance. It is the employer who is the person responsible for the action and he is the person the complainant is making the case against. If it is to be fair and the whole onus of unfair dismissal is against the employer for perpetrating the unfair dismissal, in all these cases it is bound to be the employer who is the person who must carry the can and who must defend himself.
§ Lord Wedderburn of Charlton
Would the noble Earl think that the corollary of that would be an exclusion clause in the Bill for trade union blacklists?
§ On Question, amendment negatived.
§ [Amendments Nos. 64 to 66 not moved.]
§ 8.33 p.m.
Lord Wedderburn of Charlton moved Amendment No. 67:
Page 9, line 12, after ("may") insert ("before the hearing").
§ The noble Lord said: The question involved in Amendment No. 67 relates also to Amendment No. 69. I will try to be very brief on this matter. It is somewhat technical, or at least can become so. I am very glad to see the noble and learned Lord the Lord Advocate with us, because although he always says he is a Scottish lawyer he is always very helpful to your Lordships, more than I could possibly be, on matters of law in both jurisdictions. The 1980 Bill took care that only the employer should be the only party who could join to the action the third party trade unionists, but also that they should be joined before the hearing. It did that because of the arguments put on 11th March, the same occasion to which I referred on previous amendments, by the then Under-Secretary of State, Mr. Mayhew, especially at columns 1073 to 1074.
Perhaps I may summarise, although I am perfectly happy to read the whole passage if any noble Lord so wishes. What the Under-Secretary of State said in
1980 was roughly this. I quote him to begin with. He gave an assurance to the Opposition:
that it is recognised that the trade union or individuals at the sharp end of a joinder case must be notified at the beginning".
Then he goes on to say, "That is what will happen under our Bill". He says this is what happens in a civil court under what is called the third party procedure, which is on all fours; that if a defendant, for example an employer, is served with a writ saying that he is sued for damages, if he believes the fault lies partly at least in somebody else, he notifies the court and the third party is notified that he is being blamed. Then he says that the procedure under the 1980 clause is parallel:
Right across the board the union has the power to take full part. It cannot be made to do so but it has the ability to do so. It is notified at the beginning"—
that is to say, it is notified at the beginning that it is joined, and it has the right to be there. The right honourable gentleman went on—and this is the most important part:
I understand why right honourable gentlemen regard this as fundamentally important. It is fundamentally important and it will take place. All those requirements are met by the clause and by the tribunal's rules of procedure".
§ I put that statement, and similar statements made by Ministers in this House and in another place—especially in another place because it was not much discussed here—on the basis of a moral undertaking to the trade union movement that if it or its officials are being joined in an unfair dismissal case they will be there from the beginning. That is an undertaking which is being reneged upon in this Bill. In this Bill it is possible, with the leave of the tribunal, to join the shop steward, member, official or union from the beginning, or with the leave of the tribunal during the proceedings of the tribunal.
§ This is the technical part. Many noble Lords will know that there are two basic procedures of the High Court whereby further parties can be joined. One is the third party procedure under Order 16, especially under Order 16, Rule 2, of the Supreme Court's rules and orders; and the other is the procedure for adding a party who ought to be joined to the proceedings under the now revised Order 15, Rule 6. Order 16, Rule 2, gives the court the right and the power to add a third party, and it also gives one of the parties the power to add a third party.
§ Without reading the whole of it, I submit that the meaning of Order 16 on contributions by a third party is clear, that first of all he must be added in the ordinary case from the beginning; that is to say, after service of the writ it is necessary to join your third party; albeit that you can join him after proceedings have begun, you should normally do so from the beginning. I say the same about Order 15, Rule 6, which is not a third party procedure but if the Government are going to rely upon it, albeit that parties can be added, then the basis of the thing is the sooner the better. It may be said—I think the Government will say this; I do not think this point has been canvassed before —"Oh well, it will be all right; leave it to the tribunal's discretion", because they have a discretion whether or not to join after the proceedings have begun.
§ I protest that so much in this Bill is now becoming left to the tribunal's discretion—reduction of compensa- 85 tion, whether to add a third party, whether it is just during the proceedings. But there is a difference. It is a difference that ought to be there. In the High Court you have pleadings; you have discovery. You have a certain paraphernalia that of course the laymen make fun of but which has its uses, albeit that I may well have criticised it myself in my time. One of the uses is that if you are adding another party, at least you can have a couple of days' adjournment and you can go away and read the documents and your lawyers can see what it is all about. I am not criticising the tribunals when I say that that is not so. I say that it ought not to be so. There is far too much formality and legalism in the tribunals. They were not set up to be High Courts with pleadings, discoveries and so on. There is far too much of it and it is not fair.
§ So if after three days of argument the claimant says, "And what is more I want to join the shop steward", and if the tribunal exercises its discretion—whether we agree with it or not—and joins him, what on earth is the man to do? What on earth is the union to do? Why should the Government ignore his fate? They believe in justice for minorities. Here is a minority of one. A trade union official joined when he should not have been, but by the discretion of the tribunal. What does he do? They will say "Appeal to the employment appeal tribunal against the exercise of discretion". Appeals against discretion are not easy to win. If you win it in the appeal tribunal, you may have to go up to the Court of Appeal and we all know what happens there. You may have to come to the judicial committee. What an absurd position. An appeal to the House of Lords on the exercise of a discretion?—that cannot be the answer. The answer is to get rid of the phrase, "Before the hearing" and leave it as it is now; namely, that if you want to join a third party in an industrial tribunal, you who, after all, are the claimant and now have unadvisedly been given the power, must make the choice before you start the case in the tribunal. I beg to move.
§ Lord Glenarthur
As the noble Lord, Lord Wedderburn, knows, Clause 6 of the Bill provides that employees or employers only have the right to require a union or other person to be joined to unfair dismissal proceedings if an application is made before the hearing of the complaint begins, as the noble Lord so adequately described just now. It is clearly desirable that, whenever possible, joinder takes place before the start of the hearing so that all parties to the complaint—the employee, the employer and the joined party can be present throughout.
However, Clause 6 also allows joinder to take place once the hearing has begun with the consent—and I underline that word—of the tribunal. The reason for providing for this is, of course, that there may be cases where there is cause for allowing joinder once a hearing has begun. An example of this might be where the employee learns only during proceedings that pressure was in fact exerted by a union on his former employer to dismiss him.
Perhaps I should make it clear to the Committee, however, that joinder will not be possible once a remedy for the unfair dismissal has been awarded. Before then all the facts surrounding the dismissal will have become known and there will have been ample 86 opportunity for joinder to have been requested. Joinder after a remedy had been prescribed cannot therefore be justified.
What is now proposed in the Bill in relation to tribunals having discretion to allow joinder after a hearing has begun, in fact accords, as the noble Lord described, with normal legal practice in the courts. I cannot see why this particular kind of litigation could be any different from any other kind of litigation. While it is difficult to draw exact parallels it is the practice in civil litigation both in England and Scotland to allow a litigant to bring in a third part as of right in the initial stages of a litigation, but only with the leave of the court in the latter stages. So there is no new precedent being created here. On the contrary, the position as regards joinder in unfair dismissal cases is in fact being brought more into line, as the noble Lord said, with the normal practice in the courts, and it is made quite clear in Rule 0.15 r.6. of the Supreme Court Judgment to which the noble Lord referred.
The noble Lord, Lord Wedderburn, quoted the 1980 Act and he indicated that the Government were now arguing a position totally different from that which they adopted in 1980. It seems to me that a perfectly adequate defence to this charge is that joinder under Clause 5 is now, unlike the situation in the 1980 Act, to be available either to the employer or to the dismissed employee. While the right of joinder extended only to employers, it was not essential to make any provision for joinder to take place after the commencement of the hearing, for the very simple reason that an employer will know before a hearing whether or not he has been put under pressure to dismiss and can thus reach his decision on whether to join a trade union at that point.
However, the position changes with the extension of the right of joinder to the dismissed employee. He may not find out, until the evidence at the tribunal's hearing begins to emerge, that there was union pressure on his former employer to dismiss him, as I described just now. Therefore, it can be justifiable to provide a means whereby he, with the tribunal's consent, can invoke joinder at this stage.
The amendment before the Committee would reduce the opportunity for joinder to take place. It would make it more likely that trade unions, which put pressure on an employer to dismiss unfairly, will escape all responsibility for their actions. I really cannot believe that that is right, nor can I ask the Committee to believe it and, therefore, I must ask the Committee to reject the amendment.
§ Lord Wedderburn of Charlton
I find that profoundly disappointing if not wholly surprising. The noble Minister says, "responsibility for their actions". That is what I thought I was asking for in the last amendment, and I did not get it. Now we have got it again, and why?—because the defendant is a trade unionist. The noble Lord points out that there are orders of the High Court—Order 15, Rule 6 and Order 16 whereby other parties can be joined. I was straightforward about this—during the proceedings; during the hearing. That is quite true. I said that the leave that you have to obtain is rather difficult. It is not what you are supposed to do and to obtain leave from the High Court will be very different from obtaining 87 leave from an industrial tribunal because of the nature of the paperwork in the proceedings. It is a completely different type of action. The effect may well be—it may be that the Government intend this, but I hope not—yet again more formalism in the tribunals.
What will happen? This is the final point and the main one. The Minister intimated that the employee will bring the action against the employer and then he will learn only during the proceedings about some aspect of the trade union pressure. Of course, that is what it is all about. The advice to non-unionists will be, "Get the employer in the dock; then get your lawyer along and cross examine him so as to find some union pressure". That is what the freedom association will be saying to its clients. The employer may hand out—as many employers do without any question of closed shops (there may be a closed shop or some informal arrangement)—union leaflets or membership cards when they are taking people on and say "Do you want to join?" Before long any Silk worth his brief fee will make this into pressure. In the middle of the case there will erupt some wrangle about pressure which the employer will try to resist in the majority of cases or if not he will say, "I will give in". What is being done is to legalise the procedures of the shop floor. So if there were anything in that—I give that scenario in all honesty because I think that will happen—then I do not believe it could not have been brought to the attention of the tribunal before the hearing began. It is not a question of asking at the time of the complaint; the complaints will be in; the response will be in.
Let me make a further point; the pre-hearing will have been undertaken. The noble Minister I am sure appreciates that the new procedure for the tribunals, under the 1980 rules, involves a pre-hearing where the parties are sorted out, if there is any problem, because sometimes a claimant is told these days, "Don't go on with your claim or your may get fixed for costs" and normally a claimant will not be in the position of paying costs in a tribunal. But the pre-hearing aparatus was introduced in the last two years in order to sort out the issues. It is still possible at that stage before the hearing for the claimant to add the union. But the Government want more. After the pre-hearing you can still bring the shop steward in if your tribunal will let you, right at the end of the case. In 1980 the Government said that this was unjust. They gave a moral undertaking not to introduce it. They have now gone back on that undertaking.
§ Lord Molloy
lf, as the noble Lord says, the employer shielded from the complaint that he was actually dismissed because of trade union pressure, what then was the excuse of untruth that the employer used to dismiss the employee? If the real reason was concealed initially but nevertheless the worker had the sack, what has happened in between as to why he was dismissed, if the real reason is not given until later on?
§ Lord Glenarthur
First, may I deal with the remarks made by the noble Lord, Lord Wedderburn. It seems to me that he is disputing what is regarded as normal court practice.
§ Lord Glenarthur
Yes, it is. I am no lawyer, but I can assure the noble Lord that the views of the Government's legal advisers on this matter are perfectly plain. I do not propose to debate it point by point tonight; nor do I think the Committee would wish me to. On the noble Lord's other point, it is almost certainly the case that tribunals will be reluctant to allow late joinder. Tribunals are sensible bodies and can be relied upon to act sensibly here, as in every other case. I do not believe that there is any fear that joinder will be too readily granted once a hearing has begun.
As regards pre-hearing, there is still no guarantee whatever that evidence of union pressure to discuss matters will emerge at this stage. On the point raised by the noble Lord, Lord Molloy, it does not matter when the true reason for dismissal emerges so long as the employee has a chance to react when it does emerge, so long as the hearing has not finished. I hope that that is an answer to the question he asked me.
§ Lord Molloy
With the greatest respect, may I say that the hearing is taking place because the employee was dismissed. That is how I understand it and how the noble Lord understands it. The employee was dismissed, apparently for some fictitious reason, and later on, because he was dismissed, the appeal goes to the tribunal and at some stage, lo and behold!, the truth emerges: it was because of trade union pressure.
§ Lord Glenarthur
Yes, the noble Lord has made my point for me perfectly well. It does not matter at all when the true reason for dismissal emerges. It is exactly as I said.
One point that puzzles me is that the Minister seems to be resting his case on his claim that what is proposed in this Bill is in line with normal legal proceedings. If that is so—and I am not one who can judge that—was it not also the case in 1980? Why was it not the Government's position, therefore, to rest it on the normal legal proceedings in 1980? What has changed?
§ Lord Glenarthur
I think that, with all respect, the noble Lord cannot have been listening to the point I made earlier. The point was that while the right of joinder extended only to employers, it was not essential to make any provision for joinder to take place after the commencement of the hearing, for the simple reason—as I said earlier—that an employer will now know before a hearing whether or not he has been put under pressure to dismiss and, thus, can reach a decision on whether to join a trade union at that point. The fact remains that the Bill changes what the case was in 1980.
§ Lord Wedderburn of Charlton
On this amendment, in saying what we shall do with it, I would say this to the noble Lord, Lord Glenarthur, and to the Government. What the noble Lord has said is very true, that upon the back of an unjust extension of the joinder procedure they now build an unjust procedure yet again—an unjust-during-the-hearing joinder. Having 89 extended it unjustly at the whim of the complainant, they now build on an unjust feature. Pelion on Ossa.
In asking your Lordships' leave to withdraw the amendment, we do so, not because we do not feel strongly, but because we know very clearly that this point—it may seem a very small point—is about people who are brought into tribunals: trade union officials from the shop floor. It is already widely known—curiously enough, as a matter of procedure—that this unjust feature is being built into the Bill. There is a widespread feeling in the trade union movement that it is very unjust. I beg leave to withdraw this amendment on the basis that we may wish to come back to it on Report and hope that the Government will also wish to consider it.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 68 and 69 not moved.]
The Deputy Chairman of Committees (Lord WellsPestell)
I would draw your Lordships' attention to the fact that Amendments Nos. 70 and 71 appear to be alternatives and presumably will be debated together.
§ 8.55 p.m.
Lord McCarthy moved Amendment No. 70:
Page 9, line 33, at end insert (", but no award made against a person other than a trade union shall exceed £500 or such other sum as the Secretary of State may designate by order.").
§ The noble Lord said: No, we are in fact moving Amendment No. 70 and we shall move Amendment No. 71 subsequently. If they are alternatives, it is news to us. Amendment No. 70 is a very modest and simple amendment. The object of the exercise here is, once again, to attempt to limit the impact of the joinder procedure, but in particular to limit the impact of the joinder procedure on the individual; that is to say, the individual as against the union. The amendment says that although, obviously, the compensation may extend to £30,000 or so, and if that is decided entirely against the union, or substantially against the union, the union must find that money, there should be a limit on the amount which can be proceeded against so far as an individual is concerned, and that that limit should be £500.
§ We are not here contesting the idea that there should be joinder. We are not here contesting any of the issues that we have argued so far in our amendments. We are saying that where there is a decision which goes against a union, the union should pay, but that if there is to be some joinder also of an individual there should be a limit, and that limit should be £500. We say this because the argument that if you are to go for the union official then you want to extract the maximum possible amount from the individual, makes sense only if the union is not standing behind. In most cases it is quite clear that there is a situation in which a closed shop or union membership agreement is presumed to be of benefit to the union.
§ It is most unlikely that there would be a situation in which a tribunal would say that there was a responsibility, other than the responsibility exerted by the employer, which lay against someone else, either an individual or organisation, and you could have a situation in which there would just be an individual and no union; because the union membership agreement is something which benefits unions.90
§ On the other hand, of course, there could be situations where individual shop stewards or individual workers could become involved because they might have taken industrial action. It might be a union's policy to enforce a union membership agreement, but certain individuals might had taken industrial action which had precipitated the dismissal of the individual which had caused the case to come before the industrial tribunal. Therefore, the tribunal might want to say that not simply was the union involved, but also the individual. We believe it would be very unlikely that the individual would be involved without the union, but that it would be likely in many circumstances that both the union and perhaps a shop steward, a branch secretary or someone of that kind, would be involved.
§ We are saying that it would be very bad in general terms for industrial relations if it were possible—indeed, we would say that it would be extraordinarily unfair if it were possible—for an individual to proceed against a shop steward, a branch secretary or a lay official for the maximum level of compensation which is allowed under this Bill. If the Government take the view that if the union is involved then the union must pay, and that is fair and equitable, we would say there is no need, and indeed it would be a bad industrial relations exercise, also to insist on proceeding to the full rigour against the individual shop steward. I beg to move.
§ 9 p.m.
The noble Lord, Lord McCarthy, argued that the amendment is designed to prevent an individual, possibly a trade union official, finding himself personally liable for an award of compensation of many thousands of pounds. But in arguing that I think that the noble Lord ignored three basic points. First, there is no absolute reason why an individual should ever have to pay this compensation. If a closed shop has been approved in a ballot, then providing the employer does not dismiss those who are protected under the law, the dismissal of the non-unionist will not be unfair. In that case the question of joinder will not arise. Even if the closed shop has not been approved by a ballot, an individual will be liable for compensation only if he does put pressure on his employer to sack non-unionists. If he exerts no such pressure there can simply be no risk of an individual having to pay out a large sum of money. Therefore, anyone who finds himself liable for compensation under this clause will be in that position solely because he chose to be.
Secondly, we must bear in mind that if this amendment were passed it would go in completely the opposite direction from how the law stands at present and how it will remain under this Bill with regard to unlawful industrial action. The noble Lord, Lord McCarthy, knows that there are no limits to the liability of an individual if he organises unlawful industrial action. That was of course the position under the last Government's legislation as well. In this case, there are limits in the sense that the maximum awards of compensation are limited. We see no reason to depart from the general position which does not, so far as unlawful industrial action is concerned, impose any arbitrary maximum on individual wrongdoers.
Thirdly, one cannot ignore the position of an employer who finds himself squeezed, as it were, between Scylla and Charybdis, on the one hand of having to pay 91 unfair dismissal compensation if he dismisses a non-unionist unfairly, and on the other hand of facing a strike threat, being worked up possibly by one individual, if he does not. There seems no reason in equity why that individual, just because he is an individual, should escape his fair share of liability, at the cost of the employer who would be made to bear far more than his fair share. That is exactly what could happen if the amendment were passed. The individual can wholly protect himself simply by not exerting such pressure in the first place. For these reasons, I hope that the noble Lord, Lord McCarthy, will not press his amendment.
§ Lord Jenkins of Putney
When I first read the TUC booklet on the question of this Bill I felt that they might be exaggerating. What they said in their introductory sentence was:If trade unionists had any doubt about the present Government's hostility to trade unions, these have surely been removed by the publication of the Employment Bill on January 28th.I thought that might be pitching it a bit high, but as these proceedings have gone on the Government's hostility has become more and more apparent. That was no more clear than in the case of the refusal of this reasonable amendment. The noble Earl talks about fairness. Where is the fairness between what would be suffered by an individual as a result of penalty and the fairness which would be suffered even by a trade union, let alone by a large company? How can it be regarded as fair to place an individual, who possibly has never seen £30,000 in his life and is never likely to, in exactly the same position as a large trade union or an even larger company? What is fair about that?
As for the question of his knowing what the consequences of his actions are, the noble Earl cannot have considered the situation that arises. The shop steward, as it may be, or the deputy in the case of an Equity deputy operating in a company will be doing no more than he has always done. He may be in no position to know whether there has, or has not, been an effective ballot, because nobody has clarified it to me yet—perhaps it will be done before we come to the end of these proceedings—and at the moment I do not see how the individual shop steward is to know under what circumstances a ballot has taken place on a basis which applies so far as he is concerned.
Is a ballot which has taken place perhaps six months before over the whole of an organisation to be considered to be effective throughout the organisation? Or does there have to be a ballot in relation to each particular group of companies which sign a particular contract? Can one take a ballot which operates in perpetuity in a particular range of contracts? Or every time the contract is renegotiated does there have to be a fresh ballot to discover whether the renegotiated conditions of the contract are sufficiently different to justify a fresh ballot?
These are questions which will be unknown to the individual when he tries to enforce what he always has enforced; that is, the 100 per cent. trade union position in the organisation to which he agreed to act as the unpaid deputy or shop steward. So the Equity deputy calls a meeting of the company and says, "This chap 92 has not paid his subscription." The company says, "In that case, I suppose we ought not to work, because in our contracts it says we only work with members of Equity". He says, "That is right". Eventually, the case comes before a tribunal and it is judged that, whether he knew it or not at the time, the deputy who gave that advice was responsible for the consequences. Is he then, without any protection at all, to become liable to the full rigours of the penalties laid down in this law?
The noble Earl talked about fairness and justice, and being aware of his actions. How can that be in the circumstances of industrial relations as they exist on the shop floor and in the multifarious conditions which exist all over the country? How can that possibly be fair? The small protection which my noble friend Lord McCarthy is seeking to insert—that the individual's liability should be limited to £500, which may be more to him than several thousand pounds would be to the firm that employs him—is surely where the justice of the matter lies, and the Minister should accept it.
§ Lord Mottistone
Let me try to clarify the matter. What we are talking about is discouraging bullying. The noble Lord, Lord McCarthy, may want to hold his hands up in horror at that, but that it is what it is all about and what my noble friend was talking about. These problems arise only when people have power that perhaps they should not have; when a trade union official, of whatever sort, with a trade union behind him, can in certain circumstances exercise pressure on the individual, who does not have that sort of support. It is perfectly easy for that official to avoid getting joined, as my noble friend said, by not taking any action in this area, except perhaps by saying to other people that he would like something done. But he, as an individual, does not have to do anything. So this provision is a discouragement against bullying. There are other parts of the Bill which are a discouragement against bullying by employers, and I believe that as we work our way through it we shall find that the Bill is quite well balanced. We can go into detail on this and that sort of point, but if we keep at the back of our minds that what we want to do is avoid making it easy for people to bully, we shall get matters in better perspective.
§ Lord McCarthy
I do not know whether noble Lords opposite refuse to see or genuinely do not see. It is easy enough to attempt to answer in as reasonable a way as one can the various points that are put to us from the other side of the Committee, and I shall try to do that, but as my noble friend Lord Jenkins reminded me, we are reaching the point when something much more fundamental is involved. It is the fundamental hostility which we felt and which is coming into all the normal procedures and methods of carrying through trade union organisation. With respect to noble Lords opposite, what is most difficult to take is that it is all being done—and all the time it is being said it is being done—by people who have no hostility at all to trade unions. In some ways I prefer the attitude in another place of the Secretary of State, who does not pretend in that way.
The fact is that every time we put a small amendment—in this case it would not mean that anybody would 93 get less compensation or be any worse off—we are told that, for some reason, it cannot be accepted because we must prevent bullying. And every time we ask—we have asked all day today and we asked all day when we last discussed the matter—for the deatils of who the bullies are and what their bullying tactics consists of, we get the same small band of Walsall dinner ladies, Miss Joanna Harris, the three railway-men, and nothing else. We are reaching the point when we must say that we simply have hostility, a determination to make the life of the trade unions as difficult as possible, all in the name of people who say they are not against trade unions. That becomes difficult to take at this time of night. Nevertheless, I shall try to give a reasoned answer to the three arguments put forward by the Minister.
The first was that the said there was no reason why anybody should have to pay up because that person did not have to take action designed to get anybody dismissed. That goes to the heart of it. People will do this because they believe in union membership agreements and genuinely believe that people should accept their obligations. They will do it in the context in which the Government, as a result of this measure and the 1980 Act, have created a in which, as I have said before, the closed shop is virtually unenforceable legally. It is virtually impossible to obtain the ballot figures. In any case, even if you do, almost anybody can argue that he has a conscientious or deep personal objection; and, if those two headings do not get you out, you can be an existing employee.
I have said to the Committee that I am not against that particular escape hatch. But the situation is one in which it is virtually impossible for people to maintain union membership agreements in a legally enforceable and lawful way. Therefore, in order to maintain union membership agreements, they will find themselves in one way or another coming up against provisions of this kind. In his first argument, the noble Earl the Minister is saying, in effect, that they should give up union membership agreements altogether. Yet we are told this—and here again is the hypocrisy—by people who do not proceed against the closed shop per se; they do not make the closed shop unlawful per se. They kill it with a thousand cuts. They make it impossible, by imposing upon it impossible provisions. Then they say, "If somebody is likely to be caught by one or another of the provisions, he could always back off".
The second argument that the Minister puts before me is that to do this small thing, to limit the compensation that could be awarded against an individual, is something that we do not normally do in English law. Well, there are many things that we do not normally do in English law which are in this Bill and which were in the 1980 Act. In other systems of law a limit is quite ordinary practice. For example, I understand that in Swedish labour law from 1928 to 1976 it was perfectly acceptable, in certain circumstances, to have a system of liability for workers and for trade unions, but in the cases of workers the liability was limited to a sum of 200 krona. That is a perfectly normal arrangement to operate in other systems of industrial relations, and I am suggesting that if we are extending joinder in this particular way, then perhaps we could take an 94 example from somebody else. It is not an answer to say that we have not done it so far in our own labour law.
The third defence that is put up by the noble Earl the Minister is to say that we are caught between Scylla and Charybdis, and to say that we might get a situation where an individual trade unionist is in fact the real person behind the whole thing. Well, that is once again for the Government to indulge in their customary belief that there is a small group of individuals who are stirring up workers who would otherwise be perfectly willing to tolerate non-unionists, and are doing it in all kinds of devious ways.
Union membership agreement is an object of trade union policy, Trade unions do not believe that they have to apologise for it. They wish to practise it in civilised ways—and I do not say that they always practise it in civilised ways. But it is a normal object of trade union policy, and one does not get politically motivated minorities who are trying to get rid of individual non-unionists, trying to impose their will upon them in some form of coercion. It is an aspect of union policy. Noble Lords opposite might not like that, but it is the case. Therefore we do not have individuals who necessarily must be struck at. What we are saying is that even if they are struck at, limit the damages, limit the compensation, in the name of common humanity. If there is a trade union standing behind them, why take them for everything they have got?
On Question, amendment negatived.
§ 9.18 p.m.
§ Lord Wedderburn of Charlton
moved Amendment No. 71:Page 9, line 33, at end insert ("but no such award shall be made against a trade union except where the pressure was exercised in circumstances which would have caused the union to be liable for an act authorised or endorsed by a responsible person within the meaning of section 13(3) of the Employment Act 1982.").The noble Lord said: This amendment asks the Government to tell us the answer to a question or a problem. I am not in as good a position, at least by my lights, on this amendment, because whereas under Amendments Nos. 62 and 67 I was able to show to my satisfaction, though not to that of your Lordships' Committee, that the Government were wrong now when they were right in 1980 on a problem, in this case the Government did not face the problem in 1980, and as yet they have not told us the answer to the problem. However, partly because it is a technical problem, but also because it is a practical problem, I am confident that the Government will tell us the answer, either tonight or on Report.
The question is a simple one. Under Clause 6 a trade union is ordered by the tribunal to pay to the claimant a contribution as is,just and equitable in the circumstances",now that we have the trade union joined. The claimant has made it liable, and now it has to pay money. It has to pay money to the claimant. Why?—because of some human being's actions. And the question is, which person's actions? The lawyers know it as the problem of vicarious liability. The employer is liable for his employees in the course of their employment in a very complicated area of the law, where, to put 95 it in a simple way, he is liable for what someone else does because it is his business. The law relates to the employees in the course of their employment, or in the scope of their employment, but at any rate, as some of the judgments have it, not when they are on a frolic of their own. That is the test in the well-known case in 1831 of Joel v. Morrison: that the employer, the company, is liable for their servants up to the point where they are on a frolic of their own.
The question that the Government have not told the trade union movement the answer to is: When are union members, when are shop stewards, when are union officials, to be regarded as acting for the union, so that they engage the union in responsibility and liability to pay, or when are they acting on a frolic of their own? Is that to be considered entirely by common law rules or is it to be considered by some other special code of conduct? We have had this problem before, and we have had it for some time. Every time Conservative Governments have attempted to enact this (I will say it because I believe it is, and I do not see why I should not state my beliefs as other noble Lords can state theirs) anti-union legislation, they have always come up against this problem, because they are always trying to put into the context of trade union law the concept of vicarious liability, which does not quite fit.
Of course, the reason it does not quite fit is that in employment law the employment relationship is a command relationship, at any rate historically and normally and practically in the modern world. So the employer is liable for people he can organise on command. The trade union may be liable for its officials by way of command, although that is a rather far-fetched concept in some cases; and, of course, it is not that kind of organisation. Therefore, in the 1971 legislation the courts had the most terrible problems because the legislature had not faced this question.
Noble Lords will remember the case of the dockers' shop stewards and the dockers' unofficial action on containerisation which led to the case of Heaton's v. Transport and General Workers' Union, reported in 1973 Appeal Cases at page 15, where the blacking of transport by shop stewards was said to make the union responsible vicariously because the stewards had implied authority to act on behalf of the union. I do no justice to the complex arguments in the case by so stating it, but that is perhaps the nub of the question. In looking at that the courts took account—and the House of Lords said that you must take account—of the rule book and also of the custom and practice of the union.
The uncertainty of the matter was stressed two years later in the case, also in the House of Lords, in which by three to two their Lordships in the Judicial Committee decided in the General Aviation Services case, which reached them in 1976, that similar shop stewards in the Transport and General Workers' Union at Heathrow Airport did not engage the responsibility of the union. There was fine argument by lawyers to distinguish the one case from the other, but it is difficult for the layman, I think, to see much of a difference.
The question is: Do the Government want that to happen here? I do not say that in an aggressive way; I just ask. I want to know: Is it a conscious piece of planning to leave it as it was in the 1980 Act? Is the 96 common law principle, as it is sometimes put, of respondeat superior to apply here, even though the difficulty in the trade union situation is to know who is superior, the national executive committee or the membership as a whole? It is a difficult concept; it is a democratic body; and that is the nub of the problem.
The Government have seen this problem elsewhere, because the amendment suggests that there should be applied to the joinder situation that we are discussing the principles of vicarious liability set out in what I shall call the statutory code of agency which is to apply to trade unions under this Bill for the purposes of liability in tort. For tortious liability a code of responsibility is set out in Clause 13, in subsection (3) especially and in the other subsections which follow it, and we shall have to debate that very clearly. It is perhaps one of the most important provisions in the Bill, where the Government do not simply let the common law apply, with all its difficulties but with all its advantages.
The Government have not imposed that code of agency to liability here. Of course, the technical reason might be said to be that they think that appropriate for liability in tort but not for liability in whatever this is—it is not tort and it is not breach of contract; it is a kind of breach of a statutory duty, except that it is not a statutory duty. It is a statutory liability in the discretion of the tribunals, because, as I have explained, it is not a duty not to act in breach of contract of employment; the wrongdoing in this case is whatever the tribunal says it is. So that it is a funny kind of statutory liability. It is even more important, in our submission, to know when and for whom the union is to be liable. If all the Government are going to say is, "Leave this to the good sense of the tribunals" —then we will know where we are. Any important case will be in the House of Lords within two and a half years and the only people who will profit will be the lawyers. I shall not be one of them but I wish luck to those who will. But that is not a very sensible thing to do. It is a responsibility of the Government to save the community the costs of litigation when it can? do so. The Government can save—and I am speaking not only of employees and trade unions but of employers and even of insurance companies and others—a lot of costs and time by saying, by an amendment on Report, if not tonight, what is the principle. I ask the noble Lord who is to reply whether he will tell us in a simple sentence what is the principle of vicarious liability in respect of which a trade union is to be made responsible under Clause 6, inserting Section 76A into the 1978 Act. I beg to move.
§ The Lord Advocate (Lord Mackay of Clashfern)
The answer to the noble Lord's question is that the Government saw it wise to make provisions in relation to the problem of which Clause 13 is concerned, on the lines to which he has referred. On the other hand, in this clause we are not affecting basically the liability which trade unions had under the provisions of the 1980 Act, although we are affecting the people who can raise questions about it. In that situation, it does not seem wise to the Government, as we are presently advised, to make these special provisions which are appropriate for the context of Clause 13 in the context of this particular clause.
97 The noble Lord, Lord Wedderburn, has already pointed out, in language which I think accurately summarises the position, that there is a considerable difference between the problems with which Clause 6 are concerned and those with which Clause 13 are concerned. May I be allowed to say in supplement to what he said on Clause 6 that it is concerned with the statutory right of employees not to be unfairly dismissed on grounds of union membership or non-membership, and, of course, the contribution to such dismissal made by pressure of the kind described in the clause?
In our view, accordingly, it is not necessary in this clause to make special provisions to define those for whom the union is responsible. The question for the tribunal will be: "Did the union act in the way described in the clause?" Certainly, it does not appear to us that it would be appropriate at this stage to add something of the kind here described to assist in the solution of that problem. For these reasons, I could not advise your Lordships to accept this amendment.
§ Lord Campbell of Alloway
I wonder whether my noble friend the Minister might be prepared to think again on this matter because everything on this particular clause that has been said by the noble Lord, Lord Wedderburn of Charlton, is very much, in my submission, to the point. If no special provisions are made, this problem of vicarious responsibility is just going to be a beanfeast for the lawyers. I must say that I am here speaking against my own profession.
§ Lord Molloy
I support the noble Lord, Lord Campbell of Alloway, in his plea to the Minister, and at the same time I support the plea made by my noble friend Lord Wedderburn of Charlton. We all agree that the massive amount of litigation that now exists in our lives is getting frightening. When one considers, as the noble Lord, Lord Campbell of Alloway, has said, that we are making (I think he used these words) beanfeasts for lawyers—well, there are some beans and some feasts.
By way of illustration, may I give the example of the tragic story of the GLC. Those councillors did not make that decision. They went to top flight lawyers in addition to those that they employed. Everybody who works in a trade union knows full well that the trade union has its legal department, people who have been to universities, who have taken legal degrees with honours in all sorts of things. They pay them lots of money to get misled. The GLC councillors were misled—at least so this House assumed. Some people doubt whether that was a correct judgment. This is the kind of thing that is happening.
Are we going to impose what sometimes happens in the realms of very high business on the ordinary life of the working man and woman? Do the noble and learned Lord the Lord Advocate and the Minister believe that we want a situation where every coalminer, steelworker, transport worker or sailor queues up every week to negotiate holidays and rates of pay, one by one by the tens of thousands? The CBI would withdraw their support totally from the Conservative Party if they thought that was the aim. That is what we are moving to.
98 It would be wrong to expect to have an answer to the supplication which I have made and the remarks that my noble friend Lord Wedderburn and the noble Lord, Lord Campbell, have made. But if the Government can say this: "We cannot give a response tonight; it would be unreasonable to expect it", I would accept that. I believe that if they go back and talk to Ministers in another place we can make a realistic approach. We cannot get 100 per cent. agreement but we should try to get that kind of agreement—or disagreement even—where there is no bitterness and we enact legislation which is designed primarily, one way or the other according to our philosophy, to better what we may think is industrial life, and not merely—if I may repeat the phrase—make a beanfeast for lawyers.
§ 9.32 p.m.
§ Lord Wedderburn of Charlton
The noble and learned Lord—I am sure he will not misunderstand me—I felt was in one his of more Hegelian, metaphysical moods tonight. He kept telling us that the only question for the tribunal was: did the union do it? The union does not do anything. The union is some abstract concept. I appreciate that partnerships are incorporated in Scotland; but the whole question arises surely because we need to know when we can say in legal language, "the union did it". If the noble and learned Lord did it, then the Transport and General Workers would not—unless he is a member unbeknown to me—normally be liable. So the question arises because of that.
Then he said that the Government did not see it wise to make provision on this matter in Clause 6. That was an answer. They saw it wise to make provision on this in Clause 13. Perhaps I can put it rather more clearly to the noble and learned Lord that Clause 13, which in this Bill is the Taff Vale clause—now I stop immediately; let us not waste time, for we want to make progress with this Bill and perhaps this will do something to get rid of a misunderstanding—revives liability in tort on the part of trade unions.
The Government do not like the phrase "the Taff Vale clause". In another place they objected. At the time of Taff Vale, in 1901, there was not in the civil law—although there was in the criminal law—any protection in trade disputes. So the Government do not like the title. The principle of the Taff Vale case is the principle of Clause 13, especially when one goes on later and finds that the trade dispute defences are being whittled away to nothing. It ill lies in the mouths of people who whittle away the trade dispute immunities for them to tell us that we must not call it a Taff Vale clause. But the Taff Vale clause is there. As a matter of fact, the noble and learned Lord said it was not wise but I have to remind him of something that I did not say. I left so much out, as I am trying to make progress.
Clause 13 imposes its statutory code of agency only in respect of certain torts—the Taff Vale torts and the industrial conflict torts. It does not impose the agency code for everything. I must ask the Government why, when we get there. That is why, of course, it is relevant here—because it is all very well for the noble and learned Lord to say, "It does not apply here: this is a special statutory liability", 99 although no doubt we could look together for the words that describe the liability of Clause 6, except that the tribunal can do what it likes according to justice and equity. But if it is a new civil liability, it is only not a liability in "tort" because the laywers say it is not. It is the same thing really.
No shop steward who is asked to pay £20,000 is going to care whether the lawyer lost the case because he could not argue the law of tort or because he could not argue the law of Clause 6 of the Employment Bill in civil liability. It is the same thing, and of course I join with the noble and learned Lord in saying that it is right to say that it could be missed out in 1980. It did not perhaps have to define in 1980 for whom the union would be liable because the sums were not very large; but when it is £30,000 you would think that the Government, having missed the point in 1980 and having had it pointed out to them now, would have had a better answer for ordinary men and women faced with such liabilities and for trade unions and even employers, faced with legal proceedings of complexity, than that they are determined to miss the point again.
§ Lord Rochester
I wonder whether it would help if I were to suggest to the Government that there is a case for them to stay their hand for the moment on this particular amendment, if I have understood it correctly, until such time as we have been able to debate and decide on this same principle of vicarious liability in relation to Clause 13 and subsequent clauses, so that there might not be need this evening to press this particular point to a Division, as might otherwise be the case. The matter might be left open until that time. When we are clearer, as no doubt we shall be, as to the decision of principle, which, as a Committee, we shall take in due course on those later clauses, it might then be possible to come back to this at Report stage in a way that we might all find more generally acceptable.
§ Lord Mackay of Clashfern
The noble Lord, Lord Wedderburn, started off by referring to one of my Hegelian moods. There may be advantage on occasions, even on a subject of this kind, for being somewhat philosophical. The situation, so far as the Government are concerned, is that the special provisions which are incorporated in Clause 13 are still to be considered, and I do not know that I can necessarily accept from the noble Lord, Lord Molloy, or even from my noble friend Lord Campbell of Alloway, that legal disputes are necessarily avoided by making particular statutory provisions. For these reasons, I do not feel persuaded that this particular amendment should be acceptable to your Lordships; and I would remain of the view that I expressed earlier that I cannot advise your Lordships to accept this amendment.
§ Lord Wedderburn of Charlton
We understand that. We have criticisms of Clause 13(3) anyway, so we will come to them. We quite understand the position of the Government: they wish to leave it unspecified with all the problems of the Heatons case. However, the noble Lord, Lord Rochester, put the case to the 100 Government that they might look at this again. They have given no undertaking that they will do so, but I suspect that after we debate the matter properly on Clause 13(3) they might well have second thoughts. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9.40 p.m.
Lord Wedderburn of Charlton moved Amendment No. 72:
Page 9, line 33, at end insert—
("Provided that no part of a special award to which section 75A(2) applies shall be awarded against that person.").
§ The noble Lord said: This is a short point. It deals with a concrete case with legal content, but with relative simplicity. That should appeal to all noble Lords on the Benches opposite. There is a bit for everyone. It deals with this case. If your Lordships consider page 7 of the Bill, you will find that in the new Section 75A, which is introduced into the 1978 Act, the minimum special award is put up from £10,000 to £15,000, or the equivalent number of weeks' pay from 104 to 156 in a situation which is very precisely specified.
§ It is the situation where an order has been made against the employer to reinstate, but where he does not satisfy the tribunal that it is practicable to comply with the procedure under Section 69. Unless he satisfies the tribunal that it is not practicable to comply with the order, then he has to pay the extra £5,000. If he joins a union in such a case and the tribunal makes an order for reinstatement, it may or may not be reasonable for the tribunal to make the order or, indeed, reasonable for the employer to resist it.
§ In this connection, I draw the attention of your Lordships to the fact that it is clearly established that the word "practicable" in this context does not mean expedient; it means what it says. As the Employment Appeal Tribunal put it, in the case of Qualcast Limited v. Ross in 1979, you really cannot improve on the word "practicable" itself. It may be said that in many of these cases it will not be practical to reinstate a worker, because the shop floor objections to him going back are, indeed, one of the main reasons why the new high compensation is awarded. But there will be situations in which the employer fails to show that he was reasonable in refusing to comply with the order. If no such case could possibly exist, there would be no reason at all for enacting Section 75A(2), where the extra £5,000 is imposed.
§ So in this case the employee is getting a higher special award where an order has been made, and where the employer has failed to show that it is practicable to reinstate. In that situation, because of the employer's unreasonable failure to comply with the order to reinstate—and I stress that the tribunal may, in many cases, find that it is not unreasonable for an employer, in view of the union situation; but there must be such a case or the subsection would not be there—it is the employer alone, by definition, who must have caused at least the extra part of the special award. The amendment says that, in that kind of case, the special award shall not be enforceable against the third party—shop steward, worker or trade union.
§ I apprehend that the Government may say "Your argument applies only to the excess"—that is, the 101 extra £5,000—"of the increased minimum." If that be so, then although it would be rather a miserly and Scrooge-like attitude, no doubt the Government will consider amending in that form. This amendment goes further, because the employer who fails to reinstate when the tribunal finds that it is practicable and reasonable for him to do so, is surely someone who should take the brunt of the special award. Noble Lords will note that the amendment leaves other parts of the compensation as a possible element of third party contributions.
§ This is the most modest of the amendments which we have so far moved. Where, in the view of the tribunal, the employer is the cause unreasonably of a failure to reinstate a worker in response to an order where it is practicable so to do, and the special award at the new ceiling of £15,000 comes into effect, we say that if you are going to allow the joinder procedure and all the injustices to which we have pointed so far you will surely not leave it to the tribunals. I hope that the noble Lord the Minister will not get up and say that we can leave this to the good sense of the tribunals. We have heard them say that we can leave it to the good sense of the tribunals to reduce the award in other contexts.
§ I think the noble and learned Lord and I can find common ground that one of the reasons for drafting the statute clearly is to save the need to have to fight particular points in court. One could easily say that Section 75A(2) shall not give rise to a contribution on joinder, either to the full extent of the special award, as this amendment seeks to do, or to the excess portion of the minimum, which would be the very minimum of justice which could be done in this case. I find it difficult to see what the answer to that is. On the internal construction of the Government's own Bill, that is the logic of it, and I put it to the Government in that spirit. I beg to move.
I long to be helpful to the noble Lord, Lord Wedderburn. He said that he thought it was difficult to see what the answer is and he asked the Government not to leave it to the good sense of tribunals. Unfortunately, that is exactly what I am going to say to the noble Lord. The amendment provides that where an employer has to comply with a reinstatement order made by a tribunal, the union should in no circumstances be liable for the higher special award. The noble Lord, Lord Wedderburn, argued that in this situation it is clearly the employer who is at fault in not taking the employee back and that therefore it would be wrong to penalise the union or some other third party for his misdemeanour. The noble Lord was very persuasive in what he said. But there is a crucial weakness in that line of argument. It ignores the fact that the employer's refusal to comply with the tribunal's reinstatement order may itself be the result of trade union pressure. For example, the union may threaten to come out on strike if the complainant is reinstated. In that situation, clearly it would be wrong for the union to escape all responsibility. It will, of course, dare I say it to the noble Lord, Lord Wedderburn, be for the tribunal to decide whether that is a sufficient reason for the employer's refusal to comply with the order.
Tribunals are experienced and sensible bodies. If they come to the conclusion that an employer's refusal 102 to comply with a tribunal's reinstatement order was entirely his own fault, one can be quite sure that they would not apportion any of the compensation against the union. I do not know whether the noble Lord, Lord Wedderburn, heard what I said, so I shall repeat it in case his conversation with his noble friend took precedence. I said that if they came to the conclusion that an employer's refusal to comply with a tribunal's reinstatement order was entirely his own fault, then the noble Lord can be quite certain that they would not apportion any of the compensation against the union, for the simple reason that it would no longer be the union's fault that compensation was to be paid. But tribunals must be left discretion to examine all the circumstances of a refusal to comply with a reinstatement order so that if the union were to blame in some degree, the tribunal should have the power to apportion compensation between the employer and the trade union accordingly.
The tribunals are given flexibility in Clause 76A(3) as inserted by Clause 6 of the Bill when the award which they make against the union must be what they consider just and equitable in the circumstances. It may well be that the award is nil, but it may well be that the award should be something, and that should be left to the tribunal.
§ Lord Wedderburn of Charlton
The noble Earl the Minister may rest assured that I have always listened to what he says. I was doing so while at the same time assuring my noble friend Lord McCarthy, that he had said what he did say.
If I may say so to the noble Lord, I have always thought he was so versatile. I never realised he was as versatile as that. He must teach me sometime how to do it.
§ Lord Wedderburn of Charlton
We shall arrange a special amendment for the noble Earl the Minister. The answer that the refusal by the employer, when it is unreasonable, cannot engage the union in any responsibility because the tribunal will never make the award is exactly the case for enacting the amendment. If a tribunal will never make an award in that situation in respect of this part of the compensation, then the case for the amendment stands. However, we shall read in Hansard what the noble Earl the Minister has said. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9.56 p.m.
§ Lord Wedderburn of Charlton moved Amendment No. 73:
Page 9, line 33, at end insert—
("(4) An amount awarded under this section against a trade union shall be an amount "awarded by way of damages" for the purposes of section 15 of the Employment Act 1982.").
The noble Lord said: May I put this point even more speedily. A sum of money awarded against the trade union under Clause 6 does not have a precise character in law under this Bill, at least not as I read the Bill. My question to the noble Earl the Minister is, am I correct? Some things have a precise character, especially under Clause 15. I appreciate that
we are coming to debate that later. Clause 15 is important to trade unions because it deals with amounts awarded, and I quote,
by way of damages, costs or expenses—".
The amount awarded on joinder is not expenses and it is not costs, and it does not seem to be damages. At least, it is not damages without a careful definition, which I cannot find in the Bill. The importance of that is, trade union funds of a particular kind, including provident benefit funds, are protected in certain ways by Clause 15.
§ If the Government wanted to make some almost token gesture of content to the trade union movement, they could perhaps say that money paid under Clause 6 would be "damages" in the context of this Bill, such that the provident benefit funds, as under Clause 15, would not be able to be attacked, in execution of those sums. I beg to move.
§ Lord Mackay of Clashfern
The Government understanding of the position on this Bill is that sums awarded under this clause would not be awarded by way of damages for the purposes of Section 15, as the amendment suggests. The Government's view is that the special limitations to which the amendment refers are not appropriate to responsibility of unions under this clause.
First, in closed shop cases we are talking about individuals who have lost their jobs merely because they are not members of a trade union. We believe it is right that they should be able to obtain the maximum compensation to which they are entitled—whether it be from the employer or the trade union, or from both sharing responsibility. In our view, there is no justification for imposing limits on that compensation just because some element of it is to be recovered from the trade unions.
Secondly, we believe that the more appropriate com- 104 parison here is with the proceedings in tort resulting in personal injury specified in Clause 14(2). As we shall see when we come to discuss that clause, there are no limits on the damages which can be awarded against a trade union in such cases. In our submission it would not be appropriate to limit the sum in the way proposed in the amendment, although the matter we are discussing must be relatively academic, because in most cases the award to the individual will be small in comparison with union liability sums set under Clause 15. For these reasons, I invite the noble Lord, Lord Wedderburn of Charlton, to withdraw the amendment.
§ Lord Campbell of Alloway
I cannot support the wording of this amendment, but surely there is something to be said for making it clear that the provident funds are not at risk.
§ Lord Wedderburn of Charlton
The noble and learned Lord's response is most disappointing. The noble Lord, Lord Campbell, says perhaps the provident funds could be protected. I do not see that the noble and learned Lord has produced any case for their not being. He says, "Look at personal injury; the funds would be fully liable there". Well, that is true, but under the Taff Vale torts or the industrial torts the funds are protected. Which is this more like? Is it more like the case of running down in the street, or is it more like the case that comes out of a strike? If the Government are going to go on analogies what one sees again is that they give the advantage of a false analogy to non-unionists. When the noble and learned Lord looks at Hansard I think he will see that in setting up the two points of reference he has chosen the one which is less like the cause of action involved in order to give an advantage to the non-unionist. However, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.105
§ 9.56 p.m.
§ Lord McCarthy moved Amendment No. 74:
Page 9, line 33, at end insert—
("(5) The Secretary of State shall by order make regulations providing for a member of a tribunal to be excused on grounds of conscience or other deeply held personal conviction from sitting in any case where a request is made under this section.").
§ The noble Lord said: This is a very simple amendment, which goes to a point which we have most taken so far tonight. We are concerned here with the manning of industrial tribunals. As the Committee knows, tribunals are tripartite bodies which consist of a legal chairman, an employer and in normal circumstances a trade unionist. From 1974 at least trade unionists have been fulfilling an extremely useful role, and indeed, in terms of the constitution of the tribunals at the moment, an essential role, because it is a tripartite system, over a very wide variety of industrial dismissal cases. We are concerned about a situation which might become much more common as a result of the 1982 Employment Bill, in which trade unionists could genuinely believe—and I would ask the Committee to admit for a moment that they too can have conscience or deeply held personal convictions, even about the Government's Act—that they did not wish to participate in industrial tribunal proceedings which involved circumstances arising, for example, out of the application of Clauses 2, 3, 4, 5 and 6 of this Bill; that is to say, cases in particular involving the closed shop, and most especially cases involving joinder against trade unionists. The question is, what should these people do?
§ What the amendment says—and we are perfectly prepared to take this amendment back if it is thought to be unsuitable—is that the Secretary of State should by order make regulations providing that members of a tribunal could be excused from sitting on particular tribunals on grounds of conscience or other deeply held personal conviction, in any case where a request is made under this section; that is, in particular joinder against trade unions. What we are saying is that if that is unacceptable to the Government—and I must say, given the direction of their thoughts so far today, it is very likely to be unacceptable to the Government—perhaps they would tell us what is the position for these people.
§ It may be said that when one serves on an industrial tribunal one is normally told in advance what the case is going to be about; at least one is given some indication of what the case is about. People who serve on industrial tribunals are usually contacted by phone by the clerk to the tribunal, who says, "Would you like to come along on Thursday the 14th? We have a couple of cases about this and that", and they look in their diaries to see whether they can do so or not. It may be possible that a trade unionist did not want to get involved in this kind of case, and genuinely felt that he would be the wrong kind of person to judge such a case, because he does not accept the basis on which the legislation is assumed to be about. You might argue in circumstances of that kind that a trade unionist could very well say, "I cannot make it on that day. I do not want to come on that day". You might ask, "What is the problem? Why does he have to assert his conscience or other deeply held 106 personal conviction?" You might further say, "This is the kind of argument that you, Lord McCarthy, have used when you have talked about conscience being a still small voice. Why do people have to make a fuss about it?"
§ Those who know about tribunals will know that for inevitable administrative reasons there are reserve cases. You can get a certain amount of advance notification about what the case is going to be in an industrial tribunal, but you cannot be absolutely certain; because, in the interests of administrative efficiency, if somebody turns up at a tribunal and for some reason or another cannot hear that particular case, or may hear the first case and not the second case the clerks draw up other cases from the reserves and you cannot be absolutely certain what kind of case you will find in front of an industrial tribunal.
§ We are saying that it might be a good idea if the Government would accept—in a way, it would be an act of clemency if the Government would accept—that their particular notions about UMAs, joinder and so on will not find universal acceptance among ordinary rank and file active trade unionists, who, in all kinds of other ways, even this Government accept, perform a very useful service in continuing the tripartite nature of our industrial tribunal system; therefore, maybe they should be excused. Our amendment is a way of allowing them to be excused. If the Government say: "This is unacceptable; we do not want it. Why should we do something for these people?", I am asking them tonight to make some kind of statement as to how they will view members of industrial tribunals—whose record is an excellent one in dealing with 99.9 per cent. of cases that actually come before industrial tribunals—who may not wish to serve on this particular kind of case. If they will not excuse them, will it be taken down and used in evidence against them? Is it in any sense going to be insisted that somebody who serves on an industrial tribunal must be prepared to take, without any reflection at all, any kind of case, including a closed shop case involving joinder? Is that to be the view of the Government?
§ We are asking them very seriously if they will allow a way out; it they will allow a form of formal clemency. But if they turn this amendment down, then please tell us what would their attitude be to members of industrial tribunals who say that they have deeply held conscience or personal convictions which prevent them from serving on cases of this kind. I beg to move.
§ Lord Campbell of Alloway
With great respect to the noble Lord, Lord McCarthy, this surely must be a total misconception. With respect to the noble Lord, he must know that to be so from his own distinguished record because this is a quasi-judicial or judicial function. I cannot say that I get bored trying rate cases and I do not think that the chairman of an industrial tribunal should pick and choose. It is not for me to anticipate the Government's attitude. But, of course, in principle and with the greatest respect, this must be misconceived. The answer to the question is: If you do not want to do the job according to the law of the land, then you do not take it.
§ Lord Renton
I should like to add a word by way of postscript to what my noble friend Lord Campbell has said. When the law is amended as a result of implementing a Government programme declared before the electors at a general election, surely it is right, as my noble friend Lord Campbell has said, that somebody prepared to serve on an industrial tribunal should accept the law as Parliament has amended it, and not consider himself free to pick and choose. It would be impossible (would it not?) to have industrial tribunals manned by people who would be fussy about whether one provision in a statute had been introduced as a result of the initiative of one type of Government and another by another type? They must accept it in the broad, or not at all.
§ Lord Davies of Leek
With due respect, I have listened carefully, but, on this point, there was a case where, after an election, hundreds of thousands of people voted for a group of people to come to power who would reduce transport costs in London. That was completely altered outside by cases in law. In other words, the very tenet that the noble Lord puts forward to this noble Committee was not sustained at that time.
§ Lord Renton
With great respect to the noble Lord, Lord Davies, he does not have this right, because what happened with regard to London Transport was that the law had not meanwhile been amended and the Law Lords were merely declaring the law as it was. They had a duty to do so.
§ Lord McCarthy
The noble Lord has misunderstood me and, before we get worked up, I must correct him. I am not talking about the chairmen of tribunals; I am talking about side members. A tribunal is a tripartite body. The chairmen are legally qualified and I am not talking about them. I am saying that we have here side members and that these side members are trade unionists. With great respect, there is a precedent for what I am saying. I hear what the noble Lord says and I want to know whether the Government agree with him.
There is a precedent for what I am saying. In 1971 we had an industrial tribunals system and when the Industrial Relations Act was passed in 1971, the wicked Trades Union Congress decided that all the side members then appointed should not co-operate with the application and implementation of the Industrial Relations Act 1971. I happened to believe at that time that that was a very unwise thing for them to do, because the great majority of issues that went to industrial tribunals at that time did not concern the Industrial Relations Act 1971, or, rather, they did not concern those aspects of the Industrial Relations Act 1971, to which the trade unions objected. They concerned the run-of-the-mill unfair dismissal. Nevertheless, the trade unions could not be compelled to serve on industrial tribunals if they did not want to and they withdrew. As a result, some very funny people served on industrial tribunals and it took quite a bit of time 108 to get industrial tribunals running smoothly in 1974. I want to avoid that happening again.
There is a movement inside the trade unions to boycott industrial tribunals. There is a movement inside the tribunals to boycott all forms of tripartism which now exist. There may be some people on that side of the Committee—I do not say existing Members—who would like to see that happen. I would regard it as a tragedy. Therefore, we must have a little bit of understanding. It would be perfectly possible to define the regulations in such a way that the side members were not compelled to serve on all cases. Even today, as I say, you cannot compel people to serve on particular cases. One volunteers to serve on particular cases.
If this amendment is turned down and irrespective of what the noble Lord the Minister may say, I would continue to urge that trade unionists should serve on industrial tribunals. If they do not want to serve on cases of this kind, they should not be compelled to come along and they should feel free not to come along. No one serves on an industrial tribunal on a full-time basis. You can go once a month or once every six months, as you wish. But I want to get this matter cleared up. I want it to be precise. I want to know what the Government's point of view is. I want to know whether the Government—as noble Lords opposite seem to be saying—will hold it against trade unionists if they find that they are not serving on cases of this kind. I think that that would be wrong; I think that it would be unwise; and I am trying to prevent it.
§ 10.10 p.m.
§ Lord Renton
May I say, with respect, to the noble Lord, Lord McCarthy, that he is ignoring the British genius which is to accept the verdict of democracy as expressed in a general election and in Parliament. As a result of doing so, people who are placed in a responsible position, whether as High Court judges, chairmen of tribunals, or, as the noble Lord, Lord McCarthy, describes them, side members of tribunals, should be prepared objectively to apply the law as decided by Parliament and not to start being selective. If we cast aside our objectivity, we lose one of the great advantages of our democracy. I hope that on further consideration the noble Lord will not persist in that view.
§ Lord McCarthy
Would the noble Lord take it from me that all the phrases he has used—fussy, objectivity, abiding by the majority—are the language which trade unionists use about non-unionists: about oddballs. They say, "Why must they be fussy? Why must they be objective? Why cannot they accept the majority view?" He understands that people can have genuine, conscientious objections which make them stand out, which make them look fussy, which make them look subjective, which make them reject the majority view. What he cannot do is allow that those things can genuinely be a part of the outlook of a trade unionist.
§ Lord Glenarthur
I have listened with great care to the noble Lord in his arguments, and I am grateful for the contributions made by my noble friends behind me. I must start by saying that this amendment is totally unacceptable to the Government. The noble Lord has argued that it is the equivalent of the closed shop conscience provision of the Bill. However, that is not a valid comparison. I shall not weary the Committee now by repeating the reasons why conscientious objectors to union membership in a closed shop need to be protected. These arguments were accepted by the Donovan Commission and by the TUC during the winter of discontent, as the noble Lord knows. But there is one point that I must stress yet again. The person who objects to union membership in a closed shop on conscientious grounds risks the loss of his livelihood if his objections are not respected. Therefore, to keep his job he must swallow his conscience.
The noble Lord's amendment smacks of double standards to me. The industrial tribunal member who decides on grounds of conscience that he can no longer remain a tribunal member is in a totally different position. He has a clear option—he can resign. His livelihood is not at stake. Therefore, if there were to be tribunal members, who, after the passage of the Bill, decided that they could no longer sit on a tribunal in certain circumstances for reasons of conscience, they would have the perfectly simple option of resigning. Unlike the employee who resigned his union membership in a closed shop, they will not lose their job as a result.
The noble Lord went further. It is of course possible that a few tribunal members may refuse to sit on closed shop cases once the Bill is through. It is unlikely that there will be many since, in the Government's view, the majority would have more good sense than to start picking and choosing between cases. Nor is it likely that there will be many closed shop cases. But if an individual did refuse to sit for certain types of case he would no doubt he warned that if he persisted he would not be called for other types of case. Equally, I imagine, he would have to be replaced.
The noble Lord, Lord McCarthy, talked about the TUC's boycott. Of course the Government are aware of the TUC's call for union members of tribunals to boycott closed shop cases once the Bill is law. Whether that call is likely to have much effect is doubtful, but the Government will in any case take whatever measures are necessary to ensure that the tribunal system remains fully effective, and it is too early to say, or speculate, what those measures might be. What is totally unacceptable is the provision for tribunal members to be able to pick and choose the types of case that they are prepared to hear. The industrial tribunal system is an important part of the judicial system in this country; a system which exists to uphold the law passed by this Parliament. It would be nothing short of monstrous if persons who are part of this system of justice were able to pick and choose between the laws which they are prepared to uphold and those which they are not. Yet that is precisely what would be the effect of the amendment, and I must therefore ask the Committee to reject it.
§ Lord Renton
Is there not the further danger that if the amendment were accepted, the trade union view 110 which the noble Lord, Lord McCarthy, would wish to have expressed, might remain unexpressed?
§ On Question, amendment negatived.
§ On Question, Whether Clause 6 shall stand part of the Bill?
§ 10.16 p.m.
§ Lord McCarthy
We hope not to delay the Committee for long at this time of night but we feel that we must make our point about the clause as a whole and divide on it. We have said repeatedly in relation to the many amendments we have moved, why we regard joinder as a mistaken procedure. The Government have not put forward any arguments which in any way improve on the arguments which were adduced so unsuccessfully by the Member for Rochdale in another place at the time, in 1980, when he sought to make the 1980 Act substantially as this Bill now is under Clause 6.
The arguments which were deployed—and they were rehearsed by my noble friend Lord Wedderburn earlier—by the Government spokesman on that occasion stand as they were then, and the Government have in no way advanced on any of them. All they have done is to seek to say that there is a great deal of public feeling—which the Government have done their best to work up, anyway—and somehow, in some unspecified form, that public feeling sets aside the strong and effective arguments which were used in 1980 against a provision of this kind. In our attempt to modify it, we have moved a whole series of amendments, which I shall not rehearse again at this stage, some of them of a very modest kind and some of them declaratory in that all we have sought to get the Government to do is to make clear in the Bill something they said was the case in any event. On each occasion the Government have refused to move. We should, therefore, be in a very inconsistent and illogical position on this fundamental, important and criticial clause if we did not divide the Committee, and that is what we intend to do.
§ Lord Jenkins of Putney
I wish to reinforce what my noble friend Lord McCarthy said, and on another occasion, when we come to the appropriate clause, I will spell out in detail why the Bill as at present drafted, and in particular this clause, will torpedo completely the entire Theatre Council arrangement on which the theatre depends. I could spell that out in detail on this clause, but I should prefer, having regard to the time, to do it on a later clause which is particularly relevant.
If the Committee wishes to sustain the Theatre Council situation, which is required both by employers and employees and has been sustained ever since it was created by the third Viscount Esher many years ago, this clause and a later one which supports it will have to be amended, not particularly in relation to that situation, but generally so as to provide for those situations which can be sustained only by agreement by the employers maintaining a contractual situation which is applicable throughout the whole of the area along with making it legal to carry out those activities which have so far sustained the entire operation. At present, this clause and provisions like it, as I say, torpedo the entire position, and at a later stage I will, 111 if I may, take the opportunity of spelling that out in chapter and verse.
§ Lord Mottistone
Before we move on, and while we are still considering the clause, I should like to ask the noble Lord, Lord McCarthy, to clarify a point that he mentioned earlier. He was speaking very quickly in answering the debate on Amendment No. 7, but he quoted another country—I think it was Sweden—and referred to a strange currency, with which I am not familiar, since I do not travel to that country. As I understood it, the country placed a limit on joinders for individuals. Is that right? If it is so, it seems therefore that that country, which I know noble Lords opposite admire greatly in terms of industrial relations, has joinders for individuals. Therefore perhaps there is more to this clause than we might otherwise have thought.
§ Lord McCarthy
The situation that I was describing existed in Swedish law, on which I am not an expert, and I dare say that the noble Lord would not need three guesses to find out from where I got the information. It was a situation in which there was a peace obligation clause, which was of course legally enforceable in Swedish law, and which when broken was enforceable against the trade union. But it was also enforceable against individuals, and as I understand it, in those circumstances the damages were very limited. It was a peace obligation clause; it had nothing to do with unfair dismissal.
I am not an expert on Swedish law either, and therefore I shall contain myself to English law, on which I am also not an expert. Rather like the noble Lord, Lord McCarthy, who was commendably brief, I, too, shall contain myself to what the clause does. The noble Lord said that he was going to divide on it in any case, and so I do not suppose that it matters very much what I say. Therefore I shall content myself by saying merely that the whole purpose of the clause is about what happens in a position of unfair dismissal. In particular we think it right that where a union or other person uses industrial pressure to force an employer to dismiss an employee unfairly for not being a member of a trade union, that union or other person should be liable to pay its or his fair share of the price for its or his actions. The union or the person should bear its or his fair share of any compensation which may be awarded to the dismissed employee. That compensation may be none, it may be some, but we think it right that the union or the person should pay its or his fair share.
§ 10.22 p.m.
§ On Question, Whether Clause 6 shall stand part of the Bill?
§ Their Lordships divided: Contents, 58; Not-Contents, 26.112
|DIVISION NO. 4|
|Airey of Abingdon, B.||Beloff, L.|
|Avon, E.||Belstead, L.|
|Aylestone, L.||Boardman, L.|
|Bellwin, L.||Boyd-Carpenter, L.|
|Caldecote, V.||Lyell, L.|
|Campbell of Alloway, L.||Mackay of Clashfern, L.|
|Craigavon, V.||Mancroft, L.|
|Craigmyle, L.||Mansfield, E.|
|Davidson, V.||Monk Bretton, L.|
|De La Warr, E.||Montgomery of Alamein, V.|
|Denham, L.—[Teller.]||Mottistone, L.|
|Drumalbyn, L.||Orr-Ewing, L.|
|Elton, L.||Renton, L.|
|Ferrers, E.||Rochester, L.|
|Forester, L.||Saltoun, Ly.|
|Fortescue, E.||Sandford, L.|
|Gardner of Parkes, B.||Sandys, L.—[Teller.]|
|George-Brown, L.||Seear, B.|
|Glanusk, L.||Sharples, B.|
|Glenarthur, L.||Skelmersdale, L.|
|Greenway, L.||Stodart of Leaston, L.|
|Grimston of Westbury, L.||Strathcarron, L.|
|Harmar-Nicholls, L.||Terrington, L.|
|Harris of Greenwich, L.||Thomas of Swynnerton, L.|
|Harvington, L.||Trefgarne, L.|
|Killearn, L.||Trenchard, V.|
|Kilmarnock, L.||Wilson of Langside, L.|
|Long, V.||Winstanley, L.|
|Lucas of Chilworth, L.||Young, B.|
|Ardwick, L.||Llewelyn-Davies of Hastoe, B.—[Teller.]|
|Bishopston, L.||McCarthy, L.|
|Boston of Faversham, L.||Oram, L.|
|Collison, L.||Pitt of Hampstead, L.|
|David, B.—[Teller.]||Stewart of Alvechurch, B.|
|Davies of Leek, L.||Stewart of Fulham, L.|
|Elwyn-Jones, L.||Stone, L.|
|Ewart-Biggs, B.||Strabolgi, L.|
|Hatch of Lusby, L.||Underhill, L.|
|Jeger, B.||Wedderburn of Charlton, L.|
|Jenkins of Putney, L.||White, B.|
|John-Mackie, L.||Wynne-Jones, L.|
§ Resolved in the affirmative, and Clause 6 agreed to accordingly.
§ [Amendment No. 75 not moved.]
§ Clause 7 agreed to.
§ Clause 8 [Dismissal in connection with strike or other industrial action]:
§ [Amendment No. 76 not moved.]
§ The Deputy Chairman of Committees (Lord Drumalbyn)
Amendment No. 77 seems to have been left out in the reprint of the Marshalled List.
§ [Amendment No. 78 not moved.]
§ On Question, Whether Clause 8 shall stand part of the Bill?
§ 10.30 p.m.
§ Lord Wedderburn of Charlton
Many of your Lordships may have been mystified by the failure to move certain amendments which preceded the debate on "Clause stand part". The reason was that it appeared to my noble friends and to me that it was more sensible, perhaps, in view of the hour, to take the points on Clause 8 in general. Clause 8 is a clause to which my party and many working people in the trade union movement object strongly. It is about the right to strike, about the right to withdraw labour; and the mere fact that, at the moment there may or may not be hostility towards a particular strike or other industrial 113 action, has nothing to do with this clause. As the American union leader, Samuel Gompers, said in 1908—and he was hardly a revolutionary:It is our aim to avoid strikes but I trust the day will never come when workers in our country will have lost their manhood and independence so as to surrender the right to strike.The right to strike is enshrined in the social charter of Europe to which the United Kingdom has acceded and it must imply a limitation upon the dismissal of those on strike.
I have already, on a previous amendment to a previous clause, spoken of the strange compromise which our law adopted, on a more or less non-controversial basis after 1974, that in cases concerning strikes where all the strikers were sacked by the employer or where all were engaged after, were re-engaged or not re-engaged, the tribunal at first had to find that it was a fair dismissal and, later, by subsequent amendment in the statute, was given no jurisdiction at all in that situation. But if that had been left without qualification, there can be no doubt in anybody's mind that the right to strike would have been made a laughing stock. Therefore, the line was drawn that if the employer victimised some of the strikers, if the employer picked and saw fit to choose, if he re-engaged some and not others of the relevant employees (as the section of the statute has it: Section 62 now of the 1978 Act) then "the jurisdiction of the tribunal would revive".
A lot of the debate on this matter—and this is a matter on which feelings go very deep, I am aware, on both sides; but it is a very fundamental matter—and a lot of misunderstanding is probably caused by failing to pay sufficient attention to that last phrase:the jurisdiction of the tribunal is revived".It does not mean that everyone dismissed is necessarily able to get compensation for unfair dismissal. Indeed, there are many cases which are well known (especially the case of the sacking of the stable lads at Newmarket) where the tribunal and the EAT have gone into detail about the considerations which they might consider proper or improper for an employer to take into account when dismissing only some of the strikers. "Fair" or "unfair" is still up for grabs. But it becomes very important when applying those rules, which are full of compromises, where the line is drawn in each case.
The Government are changing the rules of the game in a way which we say is thoroughly unjustifiable. First, they are changing the reference group of relevant employees from all of those taking part in the strike to those who work at one establishment. There is case law on this matter, but unless the noble and learned Lord the Lord Advocate wants me to do so I shall not cite it because it does very little better than the Bill itself.
The Bill is quite remarkable. On page 10 it tells you that, in defining "establishment", establishment means that establishment of the employer at or from which the complainant works. It is like telling you, if you want to know whether someone is riding an elephant that that elephant is the elephant which he is riding. "Establishment" will give rise to a great deal of difficulty but it is not just the legalism that is important. What is important is that it cuts the work group up into little packets.
114 Even in the toughest industrial situation on both sides with passions high, most British employers do not sack strikers; but there are some who do, and the ones who do will benefit from this Bill and that will not help industrial relations at all. If they can look at each group and say: "We will have that little lot; they will go; and we will have that little lot, and they will go—but not the others", then everyone can see how feelings will be inflamed instead of pacified.
So too with the other part of the amendment in the Bill, the amendment which says that the employer does not have to look at all of those who are taking part in the industrial action because he can now look only at those who are on strike—or, to be more accurate, who are taking part in the industrial action—at the complainant's date of dismissal.
If the Committee will consider that for just one moment, it means that instead of having to take account of all the group who take part in the industrial action, the employer can tempt back the workers one by one. He can erode the industrial action at the edges. Noble Ministers may find that amusing; if you are out on the streets in industrial action, you do not find it amusing if the employer is eroding at the edges and it does not help settle the dispute; it does not help at all. It will not help ACAS; it will not help anyone in the long run.
This clause is to get a few back, break the strike and then dismiss the hardcore. This is a clause which legalises the dismissal of those who are prepared to stand in solidarity the longest. In so doing, the Government are putting our law in breach of international obligation, going far beyond anything that is reasonable compared with other systems, Compared with other systems, this is totally unreasonable.
There is a final point. When we said, "At least all of those who are taking part in the strike are the reference group", we were talking about all the people who lost their unemployment benefit. Now we are going to look at that group in packets and at the time of the complainant's date of dismissal. The effect of the whole clause can he no other than to make it more difficult to settle industrial disputes, inflame passions and find at the same time—and I say this quickly—no answer to the problem which is said to be there; some of the case law such as Stock v. Jones. The Stock v. Jones problem has been settled by later cases, and I hope that the Government will not rely upon a legalism of the Judical Committee's decision a few years ago in the Stock v. Jones case. That was dealt with in Williams v. The National Theatre Board in 1981. I hope that the noble and learned Lord will accept that. Therefore, there is neither a legal reason nor an industrial reason for this clause and morally it should be thoroughly rejected. I hope that the Committee at this late hour will tell the Government that they should look at this matter again.
§ Lord Rochester
I had something to say on this clause at Second Reading: that it would effectively enable employers to dismiss strikers selectively. I think on reflection perhaps it would have been more accurate for me to have said that the effect of subsection (2) appears to be to reduce from "perpetuity" to "three months" the possibility of an employer being open to legal action for selectively re-engaging. But is it not 115 the case that in future, subject to the provision in subsection (3) confining the term "relevant employees" to those taking part in industrial action at the same establishment, that it will be open to employers to discriminate against certain people by not re-engaging them as long as three months have elapsed since the date of dismissal? I think that is perhaps another way of saying what the noble Lord, Lord Wedderburn, has put. Like him, as I have understood it, if people have been engaged in industrial action and the employer has wanted to sack someone regarded as a particular trouble maker, he has not been able to do so. He has had to dismiss either all of them or none. I stand open to correction, of course, on that interpretation, but that is my understanding.
At this precise moment I am not taking up a rigid position on this matter. It is rather that we on these Benches certainly need to be satisfied why the Government consider it desirable to introduce now, from what the noble Lord, Lord Wedderburn, has said, what clearly trade unions will certainly regard as a provocative change of the law, and which may be represented—indeed he has just represented it—as effectively limiting the individual's right in the long term to withdraw his labour. We are concerned about this and look forward to hearing a little more precisely than has been apparent from the discussions in another place what the Government's answer to that contention is.
§ Lord Underhill
I should like to support my noble friend in his challenge to Clause stand part, and also to follow up the point made by the noble Lord, Lord Rochester, because he and I raised this point on Second Reading. The noble Earl, Lord Ferrers, replied. I will not weary the Committee by going through what he actually said, but he referred to the fact that it is necessary for an employer to dismiss all those on strike—which is what we knew already—but he made no reference to this part on re-engagement and one has to look very carefully to compare what he said with what the notes on clauses say. The notes on clauses say, referring to subsection (2);It has the effect that if three months or more have elapsed between the time an employee was dismissed while he was taking part in a strike or other industrial action or whilst he was locked out, and an offer to him of re-engagement, then that offer does not open up the possibility of an industrial tribunal hearing a claim for unfair dismissal from another relevant employee.That is the important point we were making, that it opens the way to selective dismissals and for an unscrupulous employer, after three months have passed, to get rid of a "troublemaker", a shop steward or a trade union activist. There is no other interpretation one can put upon the notes on clauses than that.
Differences have come in regard to dismissing all employees. Whereas if they were all engaged in a national dispute, taking in a number of plants, then the employer had to take cognisance of the fact that they were all in the same dispute, now this clause makes it only those who are engaged in one particular establishment. In the eyes of any active trade unionist or in the eyes of anyone who is a trade unionist at all, that can only be held to be an attempt, either wittingly or unwittingly, to break the national spirit in a strike.
The only reason why people go on strike is to cause 116 dislocation. If you do not cause dislocation you are not going to win the strike. We hope to avoid strikes by proper industrial relations. Once you start to pick and choose between one establishment and another, you are whittling away the unity of the trade unionists in that strike. That may be the intention of the Government. Our intention from these Benches is to get such good industrial relations that we can avoid the necessity for strikes. But when the strike comes, the workers must be put in a position where they can effectively carry out the strike. What is proposed in this Bill is aimed at that.
But the most serious thing about this clause is the opportunity for selective dismissal after a period of three months. I hope that the noble Earl will read the report of what he said at columns 622 and 623 of Hansard, in reply to the noble Lord, Lord Rochester, and myself, because he will find that it does not fit in completely with the notes on clauses and with what the Bill says about selective dismissal.
§ Lord Harris of Greenwich
I wonder whether the noble Lord, Lord Wedderburn, could assist us in one matter. I realise that he was speaking as briefly as possible on this clause. I think he suggested that the clause represented some breach of an international obligation so far as the British Government were concerned. I am not clear whether he was referring to the European Convention on Human Rights, or to some other international obligation on this point. It would be helpful if he could assist us in the matter, in order to give the noble and learned Lord the Lord Advocate the opportunity of answering this point.
§ Lord Wedderburn of Charlton
With leave, I shall read the document that I cited. It is the European Social Charter—not the Convention on Human Rights, which is much weaker on this matter—signed in Turin on 18th October, 1961. Article 6 reads as follows:With a view to ensuring the effective exercise of the right to bargain collectively, the contracting parties undertake and recognise:(4) the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.That is the document.
§ Lord Campbell of Alloway
May I ask the noble Lord, Lord Wedderburn of Charlton, how long it is that he says an employee is entitled to remain on strike, exercising his right to strike, before an employer can dismiss him? Unless one can answer that question, one is not coming to grips with the essence of this problem.
§ Lord Mackay of Clashfern
In our submission, Clause 8 is a rather modest measure, which is designed to tidy up the existing provisions and make them more workable, just as the Labour Government did in 1974 and 1975. Despite what has been said, we are introducing no new principles, no hidden weapons against employees who choose to strike and no new attack on union power. We are maintaining the principle enshrined in legislation since 1971, that if an employer discriminates between employees taking industrial action in like circumstances, he risks having to justify his action before an industrial tribunal.
117 May I remind your Lordships of the three anomalies which Clause 8 seeks to correct? First, there is the question of re-engagement. As the law stands, if an employer dismisses a complete group of strikers in 1982 without discrimination, but re-engages one of them in 1983 or even in 1990, he faces unfair dismissal complaints from all the rest. We believe that this is wrong—indeed, absurd—and I noticed that there was no specific Opposition amendment directed to this matter. In our view, the three months' time limit which we are proposing to introduce is reasonable.
It might be asked: why not take the end of the industrial action? This has been tried and, in practice, it has been found difficult to determine when industrial action has ended. In fact, less than 1 per cent. of industrial stoppages recorded last more than three months. Indeed, only about 6 per cent. last more than one month; and, of course, the shorter they are the better we should be pleased. Once three months has elapsed from the time an employee was dismissed, the employer should be able to re-engage without any question of discrimination being raised.
The other two changes we are seeking to make are equally sensible and I find it difficult to understand why they are thought in some quarters to be so objectionable. The two changes that are particularly referred to are concerned with the definition of "relevant employees". That is the group with whom a dismissed striker must compare himself in determining whether he has been a victim of discrimination. As your Lordships have heard, a ruling of this House in 1978 means that it is discrimination, and therefore unfair dismissal complaints can be brought, if the employer does not give equal treatment to everybody who has ever taken part in the industrial action, including those who have returned to work. On the other hand, if the employer does dismiss those who have returned to work, then they can go to an industrial tribunal. It is surely nonsensical to leave this Catch-22 situation unresolved.
The other problem with the current definition of "relevant employees" is that it requires an employer to treat employees striking at different establishments as if they were taking industrial action in like circumstances. This does not, in our view, reflect reality and we do not believe that it fits with the original intention of the provisions.
The noble Lord, Lord Wedderburn, says that we have not defined "establishment". It is true that there is no specific definition of "establishment". It is a feature which this proposal shares with a good number of provisions already on the statute book. The noble Lord compared "establishment" to the elephant. It certainly shares with the elephant perhaps the ease of being recognised as an elephant with the difficulty of definition that the elephant poses. Therefore, it seems to us that to put people in the different establishments of a large employer in like circumstances is eminently reasonable.
Of course there are other matters which one could raise to justify that. For example, if a group divides itself into subsidiary companies and operates each establishment as a separate company the situation will be different from that where the same group adopts a divisional structure, with one employer through all the establishments. Accordingly, our 118 view is that this is nothing but making realistic the necessity to avoid discrimination in like circumstances as a basis for going to the industrial tribunal. So what we are saying is that the principle already in the law is simply being applied with somewhat more reality to the circumstances than hitherto, and I invite your Lordships to agree that Clause 8 should stand part of the Bill.
§ Lord Wedderburn of Charlton
I have the greatest respect and regard for the noble and learned Lord, but I have never heard such a shocking case. If this is modesty in dealing with the right to strike, the Minister should blush for shame. We shall vote against the clause.
§ 10.53 p.m.
§ On Question, Whether Clause 8 shall stand part of the Bill?
§ Their Lordships divided: Contents, 39; Not-Contents, 19.
|DIVISION NO. 5|
|Airey of Abingdon, B.||Killearn, L.|
|Avon, E.||Long, V.|
|Belstead, L.||Lucas of Chilworth, L.|
|Boardman, L.||Lyell, L.|
|Campbell of Alloway, L.||Mackay of Clashfern, L.|
|Craigavon, V.||Mansfield, E.|
|Craigmyle, L.||Monk Bretton, L.|
|Davidson, V.||Montgomery of Alamein, V.|
|De La Warr, E.||Mottistone, L.|
|Denham, L.—[Teller.]||Renton, L.|
|Drumalbyn, L,||Saltoun, Ly.|
|Elton, L.||Sandys, L.—[Teller.]|
|Ferrers, E.||Sharples, B.|
|Forester, L.||Skelmersdale, L.|
|Fraser of Kilmorack, L.||Stodart of Leaston, L.|
|Gardner of Parkes, B.||Strathcarron, L.|
|Glanusk, L.||Thomas of Swynnerton, L.|
|Glenarthur, L.||Trenchard, V.|
|Harmar-Nicholls, L.||Young, B.|
|Birk, B.||Oram, L.|
|Bishopston, L.||Pitt of Hampstead, L.|
|Boston of Faversham, L.||Rochester, L.|
|David, B.||Seear, B.|
|Davies of Leek, L.||Stone, L.|
|Elwyn-Jones, L.||Strabolgi, L.—[Teller.]|
|Jeger, B.||Underhill, L.|
|Llewelyn-Davies of Hastoe, B.—[Teller.]||Wedderburn of Charlton, L.|
|McCarthy, L.||Winstanley, L.|
Moved accordingly, and, on Question, Motion agreed to.
§ Resolved in the affirmative, and Clause 8 agreed to accordingly.
§ 11.1 p.m.
§ Clause 9 [Action relating to trade union membership]:
§ [Amendment No. 79 not moved.]
§ Lord Glenarthur moved Amendment No. 80:
Page 11, line 19, at end insert—
("(3) After subsection (1) of that section there shall be inserted—
(1A) Every employee shall also have the right not to have action (short of dismissal) taken against him for the
purpose of enforcing 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.
(1B) For the purposes of this section, any deduction made by an employer from the remuneration payable to an employee of his in respect of that employee's employment shall, if the deduction is attributable to the employee's 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, be treated as if it were action (short of dismissal) taken against the employee for the purpose of enforcing a requirement of a kind mentioned in subsection (1A)."").
§ The noble Lord said: This amendment which is in the name of my noble friend is intended to parallel Amendments 27 and 61, Government amendments to Clauses 2 and 5. Amendment 27 to Clause 2 was designed to put beyond doubt that if a person is dismissed for refusing to make a payment in lieu of union membership, that dismissal is to be treated as if it had been for refusing to be a union member. This ensures that a person dismissed for refusing to make a payment in lieu of union membership enjoys all the same protections Clause 2 provides for the person dismissed for failing to be a union member. The amendment merely extends this line of reasoning to include the case where someone is being pressed by action short of dismissal to make a payment in lieu of union membership. Its effect is to give an employee the right not to have action short of dismissal taken against him by his employer to force him to make a payment in lieu in a situation where if he was dismissed for refusing to make such payment that dismissal would be unfair.
§ In just the same way as the Government consider it indefensible to dismiss an employee for failing to make a payment in lieu of membership outside an approved closed shop, so we regard it as indefensible that pressure short of dismissal should be put on him to make such payments. The earlier amendment ensured that non-membership and non-payment in lieu are treated as the same thing for the purpose of Clause 2, and this amendment ensures that it is the same for the purpose of Clause 9. I beg to move.
§ Lord McCarthy
This is running over the ground that we ran over on Clauses 2 and 5. It does not make it any more acceptable. In fact it makes it less acceptable, because we are dealing here with action short of dismissal and not with actual dismissal. What is being said is that the convenient way of seeking to deal with one of the problems of non-unionism, by offering the conscientious objector or the reluctant trade unionist a possibility of paying to a charity or some other organisation, indeed on occasion to the union which is a form of agency shop, shall be denied, shall be unlawful, and it shall be unlawful even if the action taken to bring it about is only action short of dismissal.
We have to ask ourselves what kind of action that would be. The Government never spell out what this kind of pressure short of dismissal would be which would find itself actionable in the circumstances envisaged by this clause. For example, let us take one of the perennial solutions which opponents of the 120 closed shop put forward as an alternative to the closed shop; that is to say, benefits for members only—a situation in which the trade union negotiated wage increases confined to its membership, which is indeed quite common in the United States; a situation in which people did not get the benefits from certain pension schemes, pension schemes to which the union itself might contribute; or the most common discrimination between unionists and non-unionists—access to the procedure.
It is quite universal in industry today that if you are not a member of a union, then the union will not progress your case through the procedure. No shop steward will act for a non-unionist. It is beyond all to expect someone to work, represent and look after the interests of somebody who is not a member of the organisation. But it is arguable that if you do not get your case progressed through the procedure, if you do not get access to the higher levels of management because a shop steward will not take up your case, then that is action short of dismissal, and action short of dismissal is unlawful under the Bill. We believe that that is wrong. We believe that the Government should clear up these questions and in the meantime we are moving this amendment. I beg to move.
§ Lord Glenarthur
I thought that we were moving the amendments and not the noble Lord. However, the noble Lord has really asked for clarification.
§ Lord Glenarthur
The noble Lord is asking for clarification on what comprises action short of dismissal. I am sure he realises what it is—it is anything which leads to an effect on a person's wages. It can involve promotion, wages—indeed, all sorts of things. I do not think that there is any point in my expanding on the matter any further at this time of night because, as the noble Lord has said, we have already been over the agreement in relation to the earlier amendments. I hope that the noble Lord will accept the amendment.
§ Clause 9, as amended, agreed to.
§ Clause 10 [Awards against third parties]:
Lord Wedderburn of Charlton had given notice of his intention to move Amendments Nos. 81 to 86:
Page 11, line 28, after ("union") insert ("or of preventing or deterring him from being a member of an independent trade union or from taking part in its activities at an appropriate time or of penalising him for so being or so taking part").
leave out line 29 and insert ("(b) the employer").
Page 11, line 36, at end insert ("or which was exercised by acts done by a person acting or purporting to act on behalf of the employer or as a consultant or adviser to the employer ").
Page 11, line 37, leave out ("or the complainant").
after ("may") insert ("before the hearing").
leave out lines 41 to 45.
§ The noble Lord said: I do not wish to move Amendments Nos. 81 to 86, but I should like to add the note that we have already spoken on the principle in relation 121 to Clause 5 and the same arguments apply. It would perhaps be pointless to go over them again in view of the Government's response.
§ [Amendments Nos. 81 to 86 not moved.]
§ Clause 11 [Prohibition on union membership requirements]:
§ Lord Wedderburn of Charlton had given notice of his intention to move Amendments Nos. 87 to 99:
§ Page 12, line 13, at beginning insert ("Subject to subsection (8) below,").
§ Page 12, line 14, after ("services") insert ("other than a contract between an employer and a worker").
§ Page 12, line 21, at end insert ("and in this section "worker" has the same meaning as in the 1974 Act").
§ Page 12, line 21, at end insert ("but no such term or condition shall render void or voidable any other term or condition of the contract").
Page 12, line 21, at end insert—
("(1A) Subsection (1) above does not create an offence and contravention of that subsection does not of itself constitute a tort or unlawful means for the purposes of the law of tort.").
§ Page 12, line 22, at beginning insert ("Subject to subsection (8) below,").
Page 12, line 33, at end insert—
("unless in any such case he so acts or fails to act by reason of grounds of conscience.").
§ Page 13, line 1, leave out ("ground, or one of the grounds,") and insert ("principal ground").
§ Page 13, line 16, leave out ("ground, or one of the grounds,") and insert ("principal ground ").
§ Page 13, line 26, leave out ("ground, or one of the grounds,") and insert ("principal ground ").
§ Page 14, line 2, leave out from ("above; ") to end of line 4.
§ Page 14, line 4, at end insert ("and against whom that contravention was directed ").
Page 14, line 7, at end insert—
("(8) Nothing in this section shall apply to an act done for the purpose or principal purpose of ensuring compliance with the terms of an agreement or arrangement between one or more employers and one or more independent trade unions in so far as that agreement has the effect of requiring that the terms and conditions of employment in an area defined in that agreement require persons working in that area to be employed under contracts of service.").
§ The noble Lord said: I would be failing in my duty, especially to my noble friends, if I did not make the point that I wish to make. On 2nd July, Clause 11 stood in the Marshalled List for your Lordships to consider. Clause 11 states that you cannot make arrangements to force people who are employed by another employer into union membership, or you cannot have a stipulation that work shall be done by union members only. We object to that. Indeed, we have many amendments which bring out the particularly vicious and nasty facets of the clause. They range from Amendment No. 87 to Amendment No. 99.
§ However, we looked at the second Marshalled List of Amendments to be moved in Committee on 6th July—only four days afterwards, but some six or seven months since the formulation of the Government's proposals in the Bill after it has been through another place. I pause only to say that the lateness of the hour is one thing, but let us remember that the Government imposed a guillotine on this Bill in another place from Clause 4 onwards and we are now at Clause 11. However, it is true that Clause 11, bad though it is, pales into insignificance besides the new clause that was put down on 6th July. Therefore, it seems to my noble friends and myself that Clause 11, the new clause, and 122 Clause 12 must be taken as a whole. If that cannot be done at the moment, it would be better for us to withdraw Amendments Nos. 87 to 99 and debate the matter properly in a session when it can be considered properly in relation to the new clauses and Clause 12, which refers back to Clause 11. Therefore, I shall not move Amendments Nos. 87 to 99.
§ [Amendments Nos. 87 to 99 not moved.]
§ Clause 11 agreed to.
§ Lord Denham
I think that this is probably as far as we can usefully get tonight, and so I beg to move that the House do now resume.
§ House resumed.