§ Further considered on Report, on Clause 3.
Lord Underhill moved Amendment No. 14:
Page 6, line 33, leave out ("section 58 or 59(a)") and insert ("a ground described in section 71(3)").
§ The noble Lord said: My Lords, I beg to move Amendment No. 14, and, with leave, will speak also to Amendment No. 17. Under present legislation when a case of unfair dismissal is upheld, the basic award is generally 13 weeks' wages as a minimum and 26 weeks' wages as a maximum. There is a slight increase in the award of 26 weeks' wages as a minimum and 52 weeks' wages as a maximum, where the grounds for dismissal involve trade union membership activities and cases of sex discrimination and racial discrimination under the 1975 and 1976 Acts respectively.
§ The Bill brings in a fourth special category of dismissal on the grounds of not being a member of a trade union. For this additional category the minimum basic award is £2,000, plus the possibility of a special award of up to £10,000, as well as the possibility of a compensatory award making a total of, I think, £32,000. But these provisions do not at all cover dismissal on the grounds of sex discrimination or racial discrimination, as in the present legislation. In this amendment we ask why. Why should the special awards and the new compensation be limited only to two categories of dismissals—although there are now four special categories—that is, where trade union membership or refusal to join a trade union are concerned?
The Government say that it is necessary to have the additional awards in those two cases as a sufficient deterrent, and that point was made by the noble Earl, Lord Gowrie, in Committee. But, surely, the same argument could be used in the case of sex discrimination and racial discrimination; that we must have a deterrent order to stop employers from acting in that way. If I may quote the noble Earl, he said during the Committee stage in column 12 of the Official Report for 12th July:
It is our view that unfair dismissals, because of non-union membership of a union in a closed shop or because of trade union membership or activities call for substantially greater compensation than is the case in regard to the generality of unfair dismissals.
But I am not referring to the generality of unfair dismissals. I am referring to the special cases for which there is now an additional minimum award outside the generality of cases; that is, the racial discrimination dismissals and the sex discrimination dismissals.
§ I have read very carefully the report of the Committee stage, but I shall not take up the time of your Lordships by making quotations. I appreciate that the noble Earl, Lord Gowrie, accepted the position advanced by my noble friend Lord Wedderburn and he shared his condemnation of unfair dismissals involving race or sex. I readily accept that the noble Earl is as much concerned, and I think that he used the word "condemnation" as being stronger than the word 299 "distaste". But the noble Earl's general case seemed to be that, because there were very few cases of dismissal involving sex and racial discrimination, there was therefore no need to put anything into the Bill.
§ I ask your Lordships: Can we regard that as an acceptable argument? I am certain that such an argument would not impress a young black, who already feels discriminated against in many parts of the country. Even if there are only a few limited cases, we can surely say that there are only a few known cases of dismissal for non-trade union membership—a point which my noble friends Lord McCarthy and Lord Wedderburn have made time and time again. There is only a handful of cases. Therefore, the argument that there are insufficient cases of dismissal because of sex discrimination or racial discrimination does not hold up.
§ The issue is that, at present, there are three special categories and the Government have added a fourth. In this clause we are asking: Why should these special awards cover only two of these special categories? Why should there be a possibility of upwards of £12,000 compensation for those two cases of dismissal for trade union activities, or for not joining a trade union, when there is only minor compensation for dismissal due to racial discrimination or sex discrimination?
My noble friend Lord Wedderburn referred in Committee to the statement by the General Council of British Shipping, and as that council was mentioned in another context, I should like to quote what he said. The General Council of British Shipping stated—and I am quoting my noble friend Lord Wedderburn at column 18 of the Official Report for 12th July—
It seems paradoxical to suggest that a special award for dismissal for non-compliance with a closed shop agreement could be three times that for dismissal on the grounds of sex or race.
Here we are not arguing about the principle of bringing in the new class of dismissal for non-membership of a trade union; neither are we arguing about the principle of the new award. What we are saying is that it is absolutely wrong to cover those two special cases, and to leave the most important cases of racial discrimination dismissals and sex discrimination dismissals outside the provisions of this clause. That is the principle involved, and I hope that the Government may feel disposed to accept the amendment.
§ Baroness Seear
My Lords, I should like very strongly to support this amendment. I understand that the reasons given for the very high levels of payment in the closed shop cases were, first, that there should be a deterrent; and, secondly, that such cases were in breach of a piece of legislation and contrary to the law. Both those arguments apply in relation to offences under the Sex Discrimination Act and the Race Relations Act. It is embodied in Acts of Parliament that there should be no discrimination. So, to that extent, closed shop considerations are on all fours with being embodied in an Act of Parliament. Similarly—and I would argue even more strongly than in the case of closed shop cases—there is a need for deterrence in relation to both sex discrimination cases and race relations cases. We know that the law in this country is much weaker in both regards than the law in the 300 United States. I am not arguing that the law should, in itself, be greatly strengthened, although some changes would be advantageous. But it is not a strong deterrent and this would give that extra element of deterrence which our present legislation does not possess. I very much hope that the Government will accept this amendment.
§ Lord Hatch of Lusby
My Lords, I should like to add my voice, very briefly, to the pleas that have been made by my noble friend Lord Underhill and by the noble Baroness, Lady Seear, particularly as I was the first to raise this issue during the Committee stage and pressed the noble Earl, Lord Gowrie, to explain to us how he saw the difference between unfair dismissal on the grounds on non-union membership, and unfair dismissal on the grounds of sex or racial discrimination. His answer to me—and I quote from column 723 of the Official Report for 6th July—was:I made no apology for the strong element of deterrence in this legislation.But as both my noble friend and the noble Baroness who have preceded me have said, surely the issue of deterrence is as important in the case of unfair dismissal under either the Sex Discrimination Act or the Race Relations Act. All the way through the Bill the Government have stoutly objected to our accusation that the Bill is anti-union. If they want to maintain that position, surely it is incumbent upon them to include all forms of unfair dismissal rather than, as the Bill now stands, to give a preference, in deterrence and in compensation, to the person who is objecting to union membership or to the closed shop.
I would go further than the noble Baroness. It seems to me that it is even more important to have a deterrence against unfair dismissal on grounds of sex or race than on grounds of conscientious objection, whatever form it may take, to membership of a union. Surely the difference here is that one is born with one's gender and one's skin colour. One is born with these, and there is no way in which an individual can change them. On union membership, while I fully sympathise with those who have a conscientious objection to membership of anything, that is a decision of the mind. They can decide, Yes or no. But on sex and race there is no question of deciding. You are permanently of one gender or the other and of one skin colour.
Although I know that a number of members of the noble Earl's party would be somewhat hesitant about accepting the argument on sex or race, particularly on race, I am certain that he himself is not. I am also quite certain that the pleas which are being made to him tonight on the ground of unfair dismissal because of sex or race would to him be at least equal if not more serious than the ground of unfair dismissal because of objections to union membership. So I would plead with the noble Earl at least to take this back and look again at it. If he does not, it will appear, not just in this country but elsewhere, as though the Government consider that the objections to membership of a union are more important and warrant greater deterrence and greater compensation than unfair dismissal on grounds of either sex or race.
§ Lord Campbell of Alloway
My Lords, may I be permitted to say a word in opposition to this amendment. Let us assume that there is a common element in deterrence. Let us assume that there is a common element in what the noble Baroness, Lady Seear, referred to as the breach of law clement. But superimposed on this there is something which is not a common element. The reason for this distinction is that in these days it is difficult to find employment and that the loss of employment which arises from this situation can cause very substantial damage to the workman. It is not only difficult to prove through the ordinary, judicial process of the courts, but often in practice it involves a delay of some two to three years—as I know, having appeared in the High Court for workmen in such circumstances. With the utmost respect to the noble Lords opposite, there is a real distinction. It is therefore wrong to equate all this as though it were covered totally by a common element.
§ 8.15 p.m.
§ Lord Pitt of Hampstead
My Lords, I had intended to wait until the Minister had spoken before intervening, but I cannot wait any longer. The very arguments which the noble Lord, Lord Campbell of Alloway, has used for supporting the additional award because of people being dismissed for conscientious objection to belonging to a union hold equally true for people dismissed because of their colour or their sex. The truth of the matter is that it is common knowledge that people do have difficulty in getting employment because of the colour of their skin. If, therefore, they are deprived of such employment as they have managed to secure because of the colour of their skin they are in a very serious plight. So it is an even stronger argument for them than for people who are deprived of their employment because of conscientious objections to being members of a trade union.
How shall I put it? The problem of discrimination is more of a continuing one than the problem of facing up to the fact that you will or will not join a union. As my noble friend Lord Hatch of Lusby said, you may decide that you cannot take the pressure any more and that although you have a conscientious objection you will join the union. You still have that choice. But if you are black you are black, and if the objections to your having a job are because you are black there is nothing you can do about it. Therefore, I am afraid that they are not on all fours.
The noble Earl's argument for a special award was that there should be a strong deterrent. I should have thought that that argument was stronger still on the deliberate abuse of the Race Relations Act. Under that Act it is illegal to discriminate against a person because of race, colour, ethnic or national origin. However, as the law now stands, the employer who has been brought before a tribunal can elect to pay.
If he can elect to pay, he should have to pay such a large sum that he will hestitate to elect to pay. Again, I am merely using the argument which the noble Earl used earlier. If you need a strong award in order to deter employers from deliberately flouting the law, which is what will happen if they dismiss people because of their conscientious objection to joining a trade union, they should also be flouting the law if they dismiss people because of the colour of their skin or 302 because of their sex and the same principles should therefore be at stake.
Since I cannot speak again—that is why I was going to wait until the Minister had spoken but the noble Lord, Lord Campbell of Alloway, forced me to use my right at this stage—may I say that I hope the Minister will recognise the points which have been made to him. I know that the Minister may personally share many of the views I am expressing, and I hope that the brief he has been given of the situation vis-à-vis the department will enable him to take all this on board. If he cannot say tonight that he will accept the amendment then I hope he will at least undertake to look at this matter again.
§ Lord McCarthy
My Lords, I was going to jump up at the precise moment at which the noble Lord, Lord Pitt of Hampstead, did to answer the points made by the noble Lord, Lord Campbell of Alloway, although I wanted to intervene briefly in order to put one or two points to the noble Earl, Lord Gowrie. But the noble Lord, Lord Pitt of Hampstead, has covered virtually all the points that I was going to make to the noble Lord, Lord Campbell of Alloway, except one. The point he made which was not answered by the noble Lord, Lord Pitt of Hampstead, was that in cases which he had been concerned with—especially, I believe he was saying, in relation either to exclusion or expulsion from a union, or it could have been unfair dismissal—sometimes a case took a long time; that it might take two years. That is exactly what could be said about any dismissal case or any case of unfair exclusion from any organisation. It all takes a very long time. So far as I know, there are no figures which would justify our giving extra compensation on the basis that a particular kind of dismissal takes rather longer to get to the tribunal than any other kind of case. I do not think that is a distinction which we can accept.
To come to the point I want to put to the noble Earl, a number of arguments have been put forward today and all of them make the point that we are seeking to make in this amendment. The only point on the other side is something which the noble Earl said on 12th July (Hansard, column 23), and which I will come to. What has been said tonight by the noble Baroness, Lady Seear, and it is very true, is that public policy is quite clear: sex discrimination and race discrimination is particularly ruled against in the 1975 and 1976 Acts. So as far as public policy is concerned, if we want to stand by what we say we believe, then we should put race discrimination and sex discrimination at the very least alongside union membership and union activity. Those things should be square so far as public policy is concerned.
From the point of view of options and of choices, as the noble Lord, Lord Hatch of Lusby, has said, it is additionally and especially the case that we should have extra compensation — not even the same, but extra compensation, because union membership or non-membership is a matter of choice whereas one cannot opt not to be of a particular race or of a particular sex; at least, if one tried to do the second it would be all rather complicated.
So we come to the final reason, and I think the only reason, which was put forward by the noble Earl on 12th July, when he said: 303We have not in the sex and race fields had the unsavoury sight of public sector employers engaging in politically motivated defiance of statutory rights provided by Parliament. If we found some notionally extreme Right-wing council sacking somebody as a result of the colour of their skin,and I suppose one might say, as a result of their sex,and if we did not feel that the compensation was adequate to deter other such notional councils in this regard, no doubt we would bring in legislation accordingly.The difficulty with that is that we do not have any facts on which the noble Earl rests his case. It is true that we have had our old friends Salford Council and one or two other examples given to us. Maybe the noble Earl has such figures and I should be pleased to see them. We have not been given figures, for example, in respect of the number of unfair dismissals by local authorities which relate to sex or race, and whether in relation to sex or race there are fewer or more cases of unfair dismissal by local councils going against those councils, cases which are therefore, presumably, equally in defiance of the Act as the two cases we have been given in respect of trade union membership. If we do not have these figures, how can the noble Earl come before us and say,If we found some notionally extreme Right-wing council … ",because he does not have the figures? If he says that this is being done for the deterrent effect, I suppose that is his final answer. What we are saying is, why not have an equally deterrent effect, if you do not have the figures to support your argument, both for sex and race as well as for trade union membership?
§ 8.25 p.m.
The Earl of Gowrie
My Lords, some frustration occurs in debates not when people disagree but when they are in very substantial agreement and both parties cannot understand why, given the overall level of agreement, the other party cannot see the point of view being, expressed. This was put very clearly by the noble Lord, Lord Pitt of Hampstead, when, admittedly in a different context, he said that the provision was not "on all fours" with the sentiments expressed deploring sexual and racial discrimination.
The provisions in this part of the Bill are indeed not on all fours with sexual and racial discrimination. Sexual and racial discrimination is covered by the law. It is unlawful to refuse to engage someone on the grounds of their sex or race, except in a very few cases which nearly everybody agrees about as being reasonable. It is not unlawful to refuse to engage somebody in respect of union membership or non-membership. This is where the point made very eloquently by my noble friend Lord Campbell of Alloway comes into being. If someone is dismissed in an era of rising high unemployment on account of his sex or the colour of his skin, then of course that is a very grave matter for him. But the matter is somewhat different when he is dismissed on grounds of refusal of or conscientious objection to trade union membership or a closed shop problem, because the withdrawing of the union card may preclude the person statutorily or quasi-statutorily from further employment. That is why we sought to make this distinction in this part of the Bill.
Coming to the point made by the noble Lord, Lord McCarthy, I make no apology for saying that this 304 part of the Bill was partial. We were out to "clobber" certain types of person; certain types of employer. We were out to "clobber" the rogue public employer, and we gave as the instances the Sandwell and Walsall cases where a public authority was using its authority and its public position to behave in a way we thought was quite wrong. The Government have always made it clear that where industrial relations legislation is concerned they are committed to a step-by-step approach. On an earlier occasion, I tried to gloss this by saying that a step-by-step approach was really an abuse-by-abuse approach.
If it is clear that there are these rogue public authorities who are dismissing people because they are black or some other colour, or because they happen to be male or happen to be female, it would be perfectly reasonable to amend the legislation in this way. But there is no evidence whatsoever that I am aware of that any public authority is behaving in that manner. It was for what we thought were the two sensible reasons of providing a deterrent effect to public authorities, occasioned by known and consciously effected abuses in the Sandwell and Walsall cases, and because of the distinction which is engendered by the possession of a union card in terms of much modern employment, which has been brought to the attention of the House by my noble friend, that we decided to have this special level of deterrence. I really cannot apologise for that. It seems to me to be in no way on all fours with the sentiments on racial and sexual discrimination which have been expressed from the opposite side of the House and with which I myself and indeed my party are in total agreement. I just do not think that in this amendment we have been comparing like with like at all, and that is why I think the House should resist the amendment.
§ Lord Rochester
My Lords, would not the noble Earl, however, agree that, although, as we understand it, he has openly said that he and his party are out to clobber certain public authorities in the closed shop area, there are also cases in the private sector of employers who, on the grounds of race or colour, may find it possible to make people redundant, for example? Are there not cases of injustice of that kind which it is fair to treat on a par with those he mentions in relation to public authorities in another connection?
The Earl of Gowrie
My Lords, if you are an employer, and you unfairly dismiss on grounds of sex or race, you can be sued for unfair dismissal. The higher level of compensation in the cases of unfair dismissal where a closed shop situation is involved is distinguished precisely for the reason given by my noble friend Lord Campbell, that a person may be precluded from getting another job because of his refusal to become a member of the union. That is the reason for the distinction. I go back to the point made by the noble Lord, Lord Pitt. He says very fairly that it is equally grave to lose your job if you are black or a woman or whatever, and of course it is equally grave, but in terms of future hiring you are covered by anti-discrimination legislation, which does not cover you in the case of union membership or non-membership. So the distinction is quite clear.
§ Lord Underhill
My Lords, I think the noble Earl, frankly, has done his best with a bad case. The reference he makes to the fact that discrimination on grounds of sex and race are included in other Acts does not alter the matter; if we want to be logical, where is the deterrent? I do not want to be unfair, but at the Committee stage I see that in column 23 the noble Earl said:Until I was translated to Northern Ireland I was the Minister at the Department of Employment concerned with discrimination in employment on sexual grounds and on grounds of race.So the Department of Employment was sufficiently worried about discrimination to put the noble Earl in charge of that particular matter. Surely that will justify making an adequate deterrent to stop its going on.
That is what we are trying to do in this amendment The noble Earl has not moved at all on behalf of the Government. I think the case has been made from this side. It is a principle. We are not arguing about the merits or demerits of the new classification brought into the Bill; we are not arguing about the merits or demerits of the additional awards. What we are saying is that if there is sufficient justification for special awards in the case he has mentioned we ought to do likewise and have an adequate deterrent for the detestable practice of discrimination in employment on grounds of race or sex. On that basis we must ask the House to divide.
§ 8.35 p.m.
§ On Question, Whether the said Amendment (No. 14) shall be agreed to?
§ Their Lordships divided: Contents, 49; Not-Contents, 69.306
|DIVISION NO. 3|
|Ardwick, L.||Mais, L.|
|Aylestone, L.||Milner of Leeds, L.|
|Birk, B.||Molloy, L.|
|Bishopston, L.||Oram, L.|
|Blease, L.||Parry, L.|
|Brockway, L.||Peart, L.|
|Byers, L.||Phillips, B.|
|Caradon, L.||Pitt of Hampstead, L.|
|Cledwyn of Penrhos, L.||Ponsonby of Shulbrede, L.—[Teller.]|
|Davies of Leek, L.||Rea, L.|
|Evans of Claughton, L.||Rochester, L.|
|Ewart-Biggs, B.||Ross of Marnock, L.|
|Hatch of Lusby, L.||Seear, B.|
|Hirshfield, L.||Sefton of Garston, L.|
|Jeger, B.||Stedman, B.|
|Jenkins of Putney, L.||Stewart of Alvechurch, B.|
|John-Mackie, L.||Stewart of Fulham, L.|
|Kilmarnock, L.||Stone, L.|
|Llewelyn-Davies of Hastoe, B.—[Teller.]||Taylor of Gryfe, L.|
|Lloyd of Kilgerran, L.||Underhill, L.|
|Lovell-Davis, L.||Wade, L.|
|McCarthy, L.||White, B.|
|Mackie of Benshie, L.||Wynne-Jones, L.|
|Alexander of Tunis, E.||Beloff, L.|
|Auckland, L.||Belstead, L.|
|Avon, E.||Boardman, L.|
|Bellwin, L.||Campbell of Alloway, L.|
|Cathcart, E.||Lyell, L.|
|Chelwood, L.||Mackay of Clashfern, L.|
|Cork and Orrery, E.||Mansfield, E.|
|Crathorne, L.||Marley, L.|
|Cullen of Ashbourne, L.||Marshall of Leeds, L.|
|Davidson, V.||Massereene and Ferrard, V.|
|De La Warr, E.||Mersey, V.|
|Denham, L.—[Teller.]||Mottistone, L.|
|Drumalbyn, L.||Moyne, L.|
|Eccles, V.||Murton of Lindisfarne, L.|
|Elles, B.||Orkney, E.|
|Elton, L.||Platt of Writtle, B.|
|Fairfax of Cameron, L.||Rochdale, V.|
|Ferrers, E.||Romney, E.|
|Ferrier, L.||St. John of Bletso, L.|
|Fortescue, L.||Sandys, L.—[Teller.]|
|Gainford, L.||Sharples, B.|
|Gardner of Parkes, B.||Skelmersdale, L.|
|Glenarthur, L.||Sudeley, L.|
|Gowrie, E.||Teviot, L.|
|Gridley, L.||Thomas of Swynnerton, L.|
|Hayter, L.||Tranmire, L.|
|Henley, L.||Trefgarne, L.|
|Hives, L.||Trenchard, V.|
|Holderness, L.||Trumpington, B.|
|Home of the Hirsel, L.||Vaux of Harrowden, L.|
|Hornsby-Smith, B.||Vickers, B.|
|Inglewood, L.||Vivian, L.|
|Killearn, L.||Windlesham, L.|
|Kilmany, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ [Amendment No. 15 not moved.]
§ Clause 4 [New special award]:
§ 8.42 p.m.
Lord Mottistone moved Amendment No. 16:
Page 7, line 32, after ("74") insert ("but to which the provisions of section 75 shall not apply where the dismissal is to be regarded as unfair by virtue of section 58 or 59(a)").
§ The noble Lord said: My Lords, I beg to move Amendment No. 16. I am advised in my amendment by the Institute of Journalists. It deals with a slightly different aspect of what we have recently been discussing. I understand that when the Government published their proposals for the Bill last November, they intended not only to introduce new and basic special awards for workers unfairly dismissed for trade union reasons, but also to remove the upper limit on the compensatory awards in such cases. The new basic and special awards survive in the Bill, but the upper limit on the compensatory awards—currently £7,000—has not been removed. The Government, it is understood, modified their original attitude on this point in response to fears widely expressed by employers that unlimited compensation combined with the special awards would encourage greedy and unscrupulous workers to engineer their own dismissals for trade union reasons. These fears, though natural, do not stand up to examination.
§ The Government themselves have conceded in a letter from my honourable friend Mr. Waddington, the Parliamentary Under-Secretary of State for Employment, to the general secretary of the Institute of Journalists, on 17th March this year, that the removal of the limit on compensatory awards will make no difference, save in the most exceptional cases. This view receives full support from the statistics.
§ In 1980, the latest year for which figures are available, total awards were less than £750 for 58.3 per cent.
307 of the successful applicants and less than £1,500 for 80.9 per cent. The median award was £598. The maximum compensatory award, which was then £6,000, applied in only 0.4 per cent. of the cases. The figures for preceding years are comparable. In any case, as I see it, under Section 74 the amount actually awarded, whether with a limit or not, is at the discretion of the tribunal, subject to all kinds of rules set out in that section. It follows that the retention of the limit on the compensatory award does nothing in reality to meet the employers' fears but it does create the possibility of injustice, unless it is thought that exceptional victims do not deserve justice.
§ The special awards are substantial and it is not difficult to think of cases in which they could be too little. For example, the dismissed worker might be a middle-aged, highly-paid person in an occupation in which closed shops are general or in an area where opportunities are limited. Not only will his dismissal mean the immediate loss of substantial income, but he is likely to face the choice between permanent unemployment and a bady paid job without the opportunity to use his talents, with the frustration that this will induce.
§ But the greatest injustice is created for a dismissed worker who does not apply for re-employment. As the concluding words of the subsection make clear, he will be ineligible for special awards and receive only the basic and limited compensatory awards. However, he may have excellent reasons for not wanting his job back. He may know that if he gets it, his employer or fellow workers will set out to make his life intolerable or, at the earliest opportunity, a new pretext will be found to dismiss him; yet his dismissal may have been grossly unfair and his consequent loss particularly severe. It cannot be right that the sum that he is awarded should be substantially and automatically less than that given to a worker whose loss may be much slighter, but who elects to apply for re-employment.
§ I suggest that this simple amendment meets all those points. It adds nothing in reality to the financial burden on employers and trade unions, save in that minute portion of cases when it is only right that their liability should be greater. Furthermore, I must re-emphasise that in removing the upper limits on compensatory award the amendment simply accords with the Government's original thinking on this Bill as announced last November. I beg to move.
§ Lord McCarthy
My Lords, the noble Lord, Lord Mottistone, is a dangerous man because he always sounds so reasonable. This amendment is what I call, "the insult to injury amendment". It is an attempt to add still further to the discrimination, to the bonanza, which the Government insist on introducing for the non-unionist. As the noble Lord says, it has the effect of removing any limit on compensation at all for this one single group of unfairly dismissed people. The Government have just turned down our attempt to put sex and race discrimination at square with this. Now we are being asked further to widen the difference between those who are dismissed on grounds of union membership and all other forms of dismissal.
308 It is perfectly true, as the noble Lord said, that it is possible for there to be a dismissal of someone in a non-union situation where the consequence, the damage, the disadvantage, goes beyond £31,000. Of course, it is possible. If somebody is earning £21,000 a year and he is dismissed and he does not get a job for two years, you have gone beyond £31,000. But the case, as I have been arguing all day, is that a middle manager who gets £10,000 goes beyond the maximum on unfair dismissal grounds on every other reason when he goes beyond £7,000. So, of course, unless the sky were the limit for all forms of unfair dismissal, someone could always, in any category, go beyond the limit. But, since the sky is not the limit in any category of dismissal, we must ask ourselves why, now that the Government have made this special provision for union membership, we should further put them in, as it were, an extra special category and make them the only people who, in effect, can get full compensation for what they do. I do not think that in that respect the noble Lord has put forward any answers at all. He has not really used any arguments. He has merely pointed out that these people may sometimes go beyond the limit of £31,000. Of course—but other people's limit is much lower than that now and we see no reason whatever specially to privilege this man further.
Earl De La Warr
My Lords, I should like to support this amendment. What my noble friend has said very ably, which I do not think the noble Lord, Lord McCarthy, has taken account of, is that if a man seeks to get his job back and fails, he can then get the special award. If, as is very likely, he is, say, a highly-paid ournalist—he does not have to be a journalist; he may be a highly paid executive—who finds that it would be intolerable for him to go back on account of the conditions of his dismissal and relationship with his colleagues, then he is not able to ask for that which, if refused, would give him the opportunity to get the special award. He is then limited to the basic award and the compensatory award. There may be cases—and I think what my noble friend has said has shown us that there will not be very many, but they can be significant—where a man is inadequately compensated if he is subject to the limit, which is at present £7,000.
My noble friend is not asking the Government to give away very much in money, because we know what few people are likely to be affected. But surely they can properly be said to be disadvantaged if they find it understandably desirable not to seek to get their jobs back, but to go off and seek their livelihood in some other way that may well be considerably lower paid. I very much hope that the Government will take this on board and do what they can.
§ Lord McCarthy
My Lords, before the noble Lord sits down, is it not true to say that it is not quite as he said? It does not stop at £7,000. He gets the £2,000 basic in addition. Of course, if he applies and the tribunal decides that it is not practicable, he still qualifies.
Earl De La Warr
My Lords, as I understand it he gets the £2,000, but he cannot get more than a compensatory £7,000 in addition. So it is £9,000, and our case is that for a highly-paid executive who suffers in this way that may be too little.
§ Lord Underhill
My Lords, I hope that we may receive some firm explanation as to why these special categories are deserving of this special consideration. A tribunal decision can inform a person that he has been unfairly dismissed and he can be offered his job back. But he knows very well that if he goes back people will make merry hell for him. At the moment he only comes under the very low level; he does not come under special awards at all. Surely there is a justification there as well. For some strange reason certain people are being put on a pedestal, which is something that we have said throughout our consideration of this Bill.
§ 8.55 p.m.
The Earl of Gowrie
My Lords, it may help your Lordships in considering my noble friend's amendment if I very briefly recap on the compensation which the Bill will introduce for cases of unfair dismissal because of non-membership of a union or for union membership or activities. First, there will be a basic award which, as now, will reflect the employee's age, salary and length of service but will be subject in the cases we are considering to a minimum of £2,000 under Clause 3. The maximum of this award is currently £4,050.
Secondly, there will be a compensatory award which is not affected in any way by the Bill's provisions. This is currently subject to a maximum of £7,000 and is to cover actual losses such as loss of earnings or pension arising from the dismissal. Finally, where the employee requests but does not obtain reinstatement, he will be eligible for a special award under Clause 4. This award, as noble Lords will know, will comprise two years' pay, subject to a minimum of £10,000 and a maximum of £20,000, where an order for reinstatement is not made; and three years' pay, subject to a minimum of £15,000, where a reinstatement order is made by the tribunal but defied without good cause by the employer.
This amendment seeks in addition to these increases to remove the £7,000 limit on the compensatory award. My noble friend Lord Mottistone has pointed to the higher paid employee who may not seek reinstatement after an unfair dismissal, in which case he will only be eligible for the basic and compensatory awards which might not, in my noble friend's view, cover his total loss. I, of course, understand the concern that has led by noble friend to move the amendment, but I wonder whether I can ask him and the House to reflect with me for a moment on what an employee unfairly sacked from a closed shop is likely to receive as compensation even if he does not seek reinstatement. In such a case he will normally be eligible for a basic award of £2,000 which in the case of an older higher paid employee could rise to over £4,000. In addition, depending on the actual losses which he has suffered as a result of his being unfairly dismissed, he will be eligible for up to £7,000 as a compensatory award. We are, therefore, talking of a potential maximum award of over £11,000, which is far from an insignificant amount.
I accept that even so there may be the very odd case—and I think that my noble friend Lord De La Warr said that there would not be many cases here—where the £7,000 limit on the compensatory award will limit the compensation which might otherwise be received. That is precisely why when we issued our consultative paper with proposals for legislation on 23rd November 310 last year we proposed that in trade union membership cases the limit on the compensatory award should be removed. However, the response to that proposal, particularly from employers' organisations, convinced us that the prospect of "unlimited" compensation—however theoretical or unlikely to be applied—might have been an incentive to unscrupulous employees to seek to engineer their dismissals simply to obtain compensation. Employers also pointed out that it was not normal for tribunals—as opposed to courts—to be able to award unlimited compensation. The Government listened carefully to these arguments as part of our consultation process, and we were persuaded by them. We therefore decided to retain the existing limit on the compensatory award.
Although my noble friend has, as always, presented his case forcefully he has not convinced me that our decision to retain the upper limit on the compensatory award, taken as it was after consultation and representations by many employers, was wrong. In taking this view, I am mindful of just the risks which my noble friend pointed to in Committee in relation to shipping, when he argued that overall the Bill's proposals on compensation were in danger of causing disruption, and he argued, of course, cogently about the problems which might be caused by rogue or piratical employees. I think that my noble friend's fears along those grounds could, indeed, be aggravated by this amendment and I, therefore, hope that, on reflection, he will agree to withdraw it.
§ Lord Mottistone
My Lords, I feared that my noble friend might see that I was arguing a case the other way at Committee stage for another purpose. I must say that at that stage I had not read Clause 74 of the 1978 Act. I made this point in my opening remarks, but I think there is great significance in the fact that we are only talking about maximums, we are not talking about "actuals". People get fixed in their minds if there is a special maximum, or an unlimited position in this sort of situation, it is automatically going to the people you do not like. The answer to that is that it is not.
It is clear to me—and I shall not bore your Lordships by reading the whole of Section 74—that the tribunal carefully directed as to what it should award the compensatory amount on. It could well come to the conclusion as a tribunal that in the case of these relatively few people—and I think we are all agreed that it is relatively few—who might be otherwise unfairly dealt with, it will follow the strict rules in Section 74 and give the award accordingly.
However, it could well be that there will be certain cases in which the £4,000 plus £7,000 that my noble friend mentioned would not be enough to meet the rules of Section 74. All we say, where this happens, is: could it not be permissable for the tribunal to go up to whatever the right figure should be? I do not know whether my noble friend would care to comment on that before I finally reach a conclusion on this point.
The Earl of Gowrie
My Lords, I do not, I am afraid, think that I have much to add over what I have said. The general principles under which the Government have been guided throughout not only the present Bill but the 1980 Act have been to make 311 proposals, to take consultations, to try to see how things would work out on the ground, and in the light of the representations made to us we are not convinced that it would be right to change things in the way that my noble friend suggests.
I do not think that I can add more to that. My noble friend was kind enough, in his courteous way, to give us notice of what he wanted to say. We looked at it closely. It is always painful not to be able to give in to one's most experienced and loyal supporters, and it is with that grief that I have no more comment to make.
§ Lord Mottistone
My Lords, courtesy will get you nowhere! I accept the points made. I am not entirely happy. Although it would be unusual, I appreciate, I should like to reserve the right to say something perhaps by way of an amendment at Third Reading when we come to it, and in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
(Amendment No. 17 not moved.)
Lord McCarthy moved Amendment No. 18:
Page 7, line 34, after ("59(a),") insert ("and the tribunal determines that special compensation should be awarded having regard to equity and the substantial merits of the case,").
The noble Lord said: My Lords, the purpose of this amendment is to reduce what we might term the automaticity of the special award which can, as we know, carry the compensation up to £31,000. We say that there should be a kind of trip, and that the tribunal should determine, at the point where the complaint could go on to the special award, that special compensation should be awarded
having regard to equity and the substantial merits of the case".
§ The position at the moment, as we all know, is that the complainant, if he sustains his case before a tribunal in a trade union membership dismissal, gets the basic award. That is an automatic, and not reducible for contribution to dismissal, £2,000 minimum. It may advance to £4,000 in certain circumstances but it is £2,000 minimum. There then comes the compensatory award. That, as the noble Lord, Lord Mottistone, said, is based on the provisions of Section 74 of the 1978 Act.
I am bound to say, having listened to what the noble Lord said in his last contribution to our debate, that I do not see why he is so concerned that the non-unionist, or would-be trade unionist, would not get, under the calculations of the compensatory award, everything to which he is entitled. The compensatory award is related to the loss attributable to the action taken by the employer. That is what Section 74 says. It says:
The said loss shall be taken to include—
any expenses reasonably incurred by the complainant in consequence of the dismissal, and
subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal".
§ Therefore, so far as his actual loss is concerned, if he can show himself to have had a £7,000 loss, then he will get the maximum of the compensatory award. If he has not got a loss of £7,000, if he got an equally 312 good job the next day, then he will not be in need of anything more than £7,000. But he will still have the basic award, which is automatically not reducible for contribution, going to run at £2,000. Therefore, we say: why should he automatically go on to what I will term the Rolls-Royce award, which is a minimum of £10,000 if no reinstatement is awarded and a maximum of £15,000 if reinstatement is awarded but not accepted?
§ To go back to a point made in the earlier debate, note that the complainant does not have to take reinstatement. He has to offer himself for reinstatement, and there is no particular reason why he should not because of course it is up to the tribunal to decide whether reinstatement is reasonable. The tribunal might decide that no reinstatement should be awarded because it is not reasonable, and therefore he qualifies for the £10,000 minimum, but if they think it is possible and they offer £15,000 and the award is not accepted, then £15,000 is what he gets.
§ It is true, of course, that the special award can be reduced. We do not know enough to say how it will be reduced. The Bill suggests that it could be reduced, for example, if the worker goes beyond the anniversary date for calculation of the pay due. Or it is where the conduct of the worker is thought to justify it, though we are not told what that conduct would be. Or if he is given by the tribunal an offer which has the effect of reinstatement and he unreasonably refuses such an offer. None of that, at least so far as I can see, is related to the actual degree of loss. The only element in this complicated structure related to the actual degree of loss is the compensatory award.
§ None of it is related to the actual degree of loss and none of it is related to the difficulty of finding an alternative job, or whether indeed he even looks for such an alternative job. As I read the Bill—I hope the noble Earl will tell me if I am wrong—the only part of this complicated structure which leads to a possible maximum of £31,000 which relates to the conduct of the employee himself, in terms of the actual loss or the attempts he makes to mitigate that loss, is the compensatory award. The implication surely is that in most circumstances the complainant will go on to the maximum, irrespective of the circumstances of the dismissal. The object of the amendment is to put in a trip and to say: The man has his £2,000 minimum. He has whatever compensation he requires because he suffered actual loss up to £7,000. Surely at this point the tribunal might stop and consider the equity and substantial merits of the case and introduce the special award only if it thinks that is justified.
The Earl of Gowrie
My Lords, the amendment would mean that instead of a special award being payable virtually automatically—I must say that "auto-maticity" sounds like something dreamed up by Saatchi & Saatchi for the Electricity Board—to employees who are unfairly dismissed for non-membership of a union, the special award would be payable only at the discretion of the tribunal where they thought it should be paid having regard to equity and the substantial merits of each case.
I understand the concern of those who are worried that employees could gain large amounts of compensation by engineering their dismissals, but, as I said 313 earlier, we have provided extensive powers in the Bill to cope with that possibility. On the noble Lord's point that the compensatory award is enough, the point surely is that many people dismissed unfairly for non-membership of a union will not have very high actual losses. The compensatory awards to the four Walsall dinner ladies were, in three of the four cases, under £850. The point therefore is that compensation of this size is clearly not enough to deter such dismissals, and hence, as I have argued previously, the special nature of the awards.
If an employee opts out of trade union membership in a closed shop—this is back to the point about engineering ones own dismissal—and then sets about disrupting his employer's business in order deliberately to be dismissed, he would surely be judged to be fairly dismissed because of that conduct. But even if the dismissal were judged unfair—because he was dismissed for non-membership—he would almost certainly have any special award reduced under Section 75A(4) which requires the tribunal to reduce the special award where it considers that it would be just and equitable to do so on account of any conduct of the complainant before dismissal.
There is a further answer to these worries. If you are an employer, why not ballot your employees? And if you are a trade union, why not co-operate with the ballot? If your closed shop is genuinely popular you have nothing to fear, and if, as a result of the ballot, the closed shop is approved, you will have no cause for concern about the unscrupulous employee; so both objections and both anxieties are covered. For all those reasons I hope the noble Lord will not press the amendment.
§ Lord McCarthy
Automaticity or not, I am afraid it was automatic that the noble Earl would reject the amendment, and we shall have to leave it there.
On Question, amendment negatived.
§ Clause 5 [Reduction of compensation: matters to be disregarded]:
§ 9.13 p.m.
Earl Ferrers moved Amendment No. 19:
Page 9, line 35, leave out from ("and") to ("him") in line 36 and insert ("requires").
The noble Earl said: This is virtually drafting, my Lords, the parliamentary draftsman cutting down on superfluous words. The amendment replaces the words,
has the effect in practice of requiring
with the single word, "requires". I hope that meets with the approval of the noble Lord, Lord McCarthy, because compared with his words such as "auto-maticity"—which apparently is not even in the dictionary—and such phrases as "recrudescence of voluntarism", this amendment is short, simple and intelligible.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 20:
Page 9, line 37, after ("of") insert ("any trade union or of").
The noble Earl said: My Lords, in moving this amendment, if I may, I should like to speak at the
same time also to Amendments Nos. 21, 29, and 30. These amendments are all virtually drafting amendments. Clause 2 of the Bill establishes a general right, that is qualified in some circumstances in a closed shop, not to be unfairly dismissed for not being a member
of any trade union, or of a particular trade union, or of one of a number of particular trade unions".
We are concerned that that particular phraseology should be used throughout the Bill. Therefore, I beg to move Amendment No. 20, which seeks to achieve that.
§ On Question, amendment agreed to.
§ Clause 6 [Awards against third parties]:
Earl Ferrers moved Amendment No. 21:
Page 10, line 19, at end insert ("or of one of a number of particular trade unions").
§ On Question, amendment agreed to.
Lord McCarthy moved Amendment No. 22:
Page 10, lint 20, after ("or") insert ("(with the leave of the tribunal on an application made by him before or during the hearing)").
§ The noble Lord said: My Lords, I am a little worried about this amendment because I was going to say that it is the one about joinder, but I am not sure that that is in OUD, either. I think that the terms are all in Webster, but it is obvious that the noble Earl, Lord Ferrers, does not use Webster—
I wonder whether they are in Gennard, too, which the noble Lord, Lord McCarthy, will realise we have not seen, though which I believe he has seen.
§ Lord McCarthy
Well, the noble Earl must be the only one left in the world who has not seen Gennard—he and the Secretary of State. It is worth seeing, believe me; but it will be too late when the Government publish it.
So, as I way saying, the present amendment is about joinder, and the aim of the clause as it stands is to create a situation where the complainant is given equal rights with the employer to join the union in an action. The clause as it stands provides that the tribunal must grant the request if it is made before the hearing begins; that is to say, before the consequences of the justice of the matter can be assessed. The purpose of our amendment is to preserve that arrangement for the employer only. We are saying that the tribunal must give leave.
This returns us to another argument which we used at the Committee stage, when we debated the dangers of the joinder procedure. Members on this side of the Chamber quoted, for example, the Donovan Report, which stated that the decision to dismiss was the employer's decision and that he should take the responsibility. Personally, I consider that more persuasive than that was the argument that any other action which would join the union, or which would result in joinder, would involve the courts in making a decision as to the justice or equity of particular forms of industrial action, and we believe 315 that that is something that the courts should do very sparingly, and indeed not at all if they can help it.
But, of course, joinder is especially dangerous when it can be invoked by the complainant unilaterally—which is the position under the clause, which the amendment wants to change—and when the complainant can do that irrespective of the wishes of the employer, and in a way which, I emphasise, has no effect whatever on the compensation. The compensation is awarded by the tribunal and the complainant receives the compensation, whatever it is. So in fact joinder is not affecting the complainant per se in terms of the money he receives; it is simply the point that presumably he wants the union to be joined.
Not surprisingly, we have not had from the Government any general arguments as to why they particularly want the provision. All we have had is an argument advanced by both the noble Lord, Lord Glenarthur, and the noble Earl, Lord Ferrers. At col. 65, on 12th July the noble Lord, Lord Glenarthur, put it with commendable frankness. He said:The extension of this right to the dismissed employee is intended to increase the likelihood of unions being joined"—Well, of course we know that; but why?—in unfair dismissal proceedings and, therefore, of becoming liable to pay compensation where they force an employer to dismiss unfairly".In reply to that we asked the Government, why do you want to join the trade union? Why, in particular, do you want to join the trade union if the employer does not want to join the trade union? To that Lord Glenarthur replied, "So what?". Or, rather, he said:We know that employers, for their own industrial relations reasons, will often be reluctant to join unions in unfair dismissal proceedings. They may, for example, fear the industrial relations consequences of doing so.So the Government admit this. The noble Lord continued:However, the result is that unions at the moment know that they have a pretty good chance of getting away with it if they force an employer to dismiss unfairly. But, of course, a dismissed employee is unlikely to be swayed by the same considerations as his former employer. He may well choose to use his right of joinder where his ex-employer declines to do so.So we say: What about the industrial relations consequences? What about the employer, and his fearing industrial action? To that we are told:… in the Government's view it is not the case that employee joinder will cause industrial relations difficulties",which seems to be a contradiction. It goes on:If any employer does not 'join' a union in unfair dismissal proceedings, but his dismissed employee does, how can the employer be held responsible for that by the union concerned? The employer would be able to make clear to the unions that he had nothing whatever to do with his ex-employee's decision; that the employee was no longer on his premises, and was thus out of his sphere of influence.I suggest that this is nonsense and that the Government know it is a nonsense. I suggest that the Government are much more honest when they said, in the first quotation I made from the noble Lord, Lord Glenarthur, that in fact they do not really care if the result is industrial action; that they want the union to be "got", and they want the union to pay irrespective of what the employer wants to happen and, in fact, 316 in defiance of the employer's wishes. It is nonsense to say that if people feel that this is disruptive industrial relations they do not know about it and the Government do; and that the Government's view is that it will not have the effect which in the employer's view it will have, because the Government believe that the workers will say, "How can the employer be held responsible by the union concerned, because he did not start the action?"
I suggest that the Government know that that is not true. I suggest, in fact, that the arguments which the Government used when a similar proposal was put forward in another place in 1980 by the Member for Rochdale are the proper arguments, which they know are as true now as they were when they were put forward then. Because, on 11th March 1980, in col. 1072, in the Official Report, the then Under-Secretary of State said, answering the Member for Rochdale:There is a potential here for considerable industrial disruption, to the disadvantage of the firm and its workers as a whole, to say nothing of the employer himself. It will be open to the individual, for example, not to sue the union as to sue individual workers. One might then have a kind of running sore, which could lead to a great disruption and bring harm to the firm itself".We suggest that the Government know this all too well. Indeed, it is pitifully obvious; and the object of this amendment is to let the tribunal have a reserve power to take action to prevent it if they think there is good reason to do so. I beg to move.
§ Lord Glenarthur
My Lords, the noble Lord, Lord McCarthy, has quoted at length what I said at the Committee stage. We made it clear that the main intention of Clause 6 of the Bill is to increase the likelihood that trade unions will have to face the consequences of their actions where they force an employer to dismiss an employee unfairly for not being a union member. It is with this firm intention in mind that I approach these amendments.
I accept that the amendments do not take away entirely the employee's right of joinder, but they do reduce that right considerably. Clause 6 of the Bill currently provides that either the dismissed employee or the employer has the absolute right to require a third party to be joined in unfair dismissal proceedings if such a request is made before the hearing of the complaint begins. If a request is made during the hearing but before a remedy for the unfair dismissal is awarded, then joinder will take place only with the tribunal's consent. This is perfectly normal practice in civil litigation.
These amendments seek to qualify the employee's right of joinder but not the employer's, so that the employee can join a third party to proceedings only with the tribunal's consent, no matter when he requests that that joinder should take place. I submit that there is no justification on procedural grounds for these amendments. Where joinder takes place before a hearing begins, whether it be through the employer's or through the employee's request, all parties to the complaint can be present throughout the hearing. Additionally, if a late request for a joinder is made, whether by the employer or the employee, and this request is allowed by the tribunal, any inconvenience to the joined party can be accommodated through an adjournment.
317 But there is no case for treating the rights of a dismissed employee and employer differently on procedural grounds. They give rise to precisely the same issues of timing and convenience. We have heard the argument that tribunals should have discretion over whether to allow employee joinder because otherwise this could harm the employer's industrial relations. We had this argument in Committee. Again, I can only repeat our view that we do not believe that an employee joinder will cause industrial relations difficulties. If an employer does not join a union in unfair dismissal proceedings but his dismissed employee does, how can the employer be held responsible for that by the union concerned? The employer would be able to make clear to the union that he had nothing to do with his ex-employee's decision, that the employee was no longer on his premises and thus was out of his sphere of influence.
If we were to accept these amendments, there would be no automatic right of joinder by an employee and, therefore, much reduced prospects of unions being made to pay where they force an employer to dismiss an employee unfairly for not being a union member. That is simply not acceptable. Therefore I must ask your Lordships to reject the amendment.
§ Lord McCarthy
My Lords, the noble Lord says that it is not acceptable. We know that it is not acceptable. He does not give us any reason; he just keeps saying that he does not think it will happen. He does not say why we should not believe the Under-Secretary of State on 11th March 1980. I do not withdraw the amendment.
On Question, amendment negatived.
[Amendment No. 23 not moved.]
§ 9.28 p.m.
Lord McCarthy moved Amendment No. 24:
Page 10, line 41, at end insert—
("(4) Pressure is exercised by a trade union within the meaning of subsection (1) above where and only where one or more of the acts which constitute the pressure are done by a person acting on behalf of the union.").
§ The noble Lord said: My Lords, the aim of this amendment is to start a debate about the principles of trade union pressure. This may be the amendment on which we are going to get a change of batting on the part of the Government; I am not sure. If so, then I shall probably be out-classed on this matter, but I struggle on all the same. The aim of this amendment is to start a debate on the principles of trade union pressure. We want to ask the Government to help us by defining the kind, type and rules—the code—which will govern the pressure and the responsibility for exerting pressure in this Part of the Bill.
It seems to us that there are two alternative sets of principles which could govern the rules of responsibility in respect of pressure. In the past, in the area where unions were liable for the acts of their agents, we relied in crude terms on the common law, on what one might call the Heaton principle; that is to say, in broad terms the union was responsible under the rules, or rather, was responsible under the rules as modified by the custom and practice of the union concerned.
This was summarised by the noble and learned Lord, Lord Wilberforce, when he said:
If the authority to take a particular type of action is not excluded by the rules and if the authority is reasonably to be implied by custom and practice, then such authority will continue to exist until it is unequivocally withdrawn".
We take the view that our amendment would have the effect of embodying what I have called the Heaton principle from the point of view of responsibility for pressure.
§ The alternative would be the approach of the Bill. This Bill has a different code of responsibility, as set out in Clause 14. In Clause 14 the Government create this artificial construction of the responsible person. The union is responsible if the responsible person does something, whether he is the general secretary, president, or a principal of the executive committee or some other authority, unless of course he repudiates it in ways which are laid down in the Bill. That is one code of responsibility; the common law code of responsibility is another.
§ We tried in Committee to get the Government to say that they would have one code of responsibility both for industrial torts and what might be termed non-industrial torts. But the Government were not prepared to say that. They preferred a mixed system and they seem to prefer an equally—if not mixed—confused system. There is nothing in this Part of the Bill which tells us exactly what principles, code of responsibility or rules the tribunals are to use in deciding in joinder whether the union really was in terms of the organisation responsible for what has been done. What we are really asking in this amendment is whether it would be a good idea to say what those principles would be. Our personal preference is for the Heaton principles. I beg to move.
§ The Lord Advocate (Lord Mackay of Clashfern)
My Lords, I have to compliment the noble Lord on the accuracy of his forecast in one respect, but one respect only. Regarding the argument that he has advanced, having attended to it as closely as I can, I consider that the amendment still seems to me to be unnecessary and potentially confusing. The amendment seeks to provide that a union cannot be found liable for compensation as a result of having been joined in an unfair dismissal case unless the pressure, or some part of the pressure, which has been exerted on the employer has been exerted on behalf of the union. The point is surely a simple one: whether one includes such words or not there can be no question of a union becoming liable for something not done on its behalf.
As the noble Lord pointed out, we have provided detailed rules in relation to industrial torts later in the Bill; but it does not appear necessary to provide detailed rules at this stage and the basic provisions on which this amendment operates are the provisions which were incorporated in the 1980 Act. It was not found necessary to depart from the principles of the common law in relation to the 1980 Act and I do not see why it should be thought necessary to depart from that principle in relation to this same basic liability in the joinder provisions of this Bill. Equally, it was not thought necessary in the 1980 Act to make explicit that unions were only to be liable for compensation 319 where action had been taken by them or on their behalf. That was considered to be, and remains, self evident.
§ Lord Molloy
My Lords, does that really mean that if an ordinary trade union member committed some act or made some threat which was nothing to do with his branch, region, national officers, general secretary or president, nevertheless they could be held guilty for the behaviour of one single member? That act might be done deliberately to get somebody in an embarrassing situation. Does it mean that?
§ Lord Mackay of Clashfern
No, my Lords. The answer to that is short and immediate. The law, without the amendment, is the same as the law with the amendment. The amendment appears to me to be unnecessary and confusing. The union will be held liable only if the court regards the pressure as exerted truly on behalf of the union or exerted truly by the union. So the point that the noble Lord, Lord Molloy, made is very properly met—a point which think ought to be met and is met. I hope for these reasons that your Lordships will find it possible not to accept this amendment.
§ Lord McCarthy
My Lords, I do not know whether the noble and learned Lord the Lord Advocate was present when the Government were saying in a previous amendment that of course they knew it did not make ally difference but they could not be sure, so they would accept it. I said at the time that I wished they would be equally generous all night, but they are clearly not going to be. We will not press this to a Division.
On Question, Amendment negatived.
[Amendment No. 25 not moved.]
§ Clause 8 [Dismissal in connection with strike or other industrial action.]:
Lord Underhill moved Amendment No. 26:
Page 11, line 36, leave out from ("who") to end of line 37 and insert ("took part in it").
§ The noble Lord said: My Lords, at present efforts by an employer to victimise some of the employees who may be involved in industrial action have some limitation placed upon them. If an employer was enabled to re-engage just some of the employees involved, that would imperil almost every industrial action, and as noble Lords opposite have agreed with those from this side of the House that workers have the right to strike where the circumstances justify it, I am certain the Government would not wish to see any industrial action imperilled by victimisation by any employer.
§ The present law enables a tribunal to consider a claim for unfair dismissal where an employer makes an offer of re-engagement to only some of the employees who have been involved in industrial action. In this clause, the Government are seeking to change the rules in two ways. First, it is narrowing the description of the establishment to be at or from that which the complainant works. Therefore, industrial action in a number of different departments or depots will no longer cover all the plants but only the particular 320 plant at or from which a particular complainant works.
§ The second change proposed by the Government is varying who are the relevant employees to be considered. The Government are proposing that an employer does not have to consider all the employees involved in industrial action. He has to take account only of thoses who were actually taking part in industrial action at the date of the complainant's dismissal. That is a considerable change from the present law, and under the Bill as drafted an employer could tempt some employees to go back to work and break the strike and maybe he could do that by picking off employees one by one. In effect, the Bill will do what I asserted at Second Reading—legalise the dismissal of those who are the activists, maybe the leaders of the majority of the employees.
For that reason I spoke against this on clause stand part, at the Committee stage. In the debate that followed, the noble and learned Lord the Lord Advocate dismissed the objections put forward because he said it was very a modest measure. Subsection (3) of the clause relates a strike or other industrial action to—here I quote:
those employees at the establishment who were taking part in the action at the complainant's date of dismissal.
I would say to the noble and learned Lord that this amendment is also a very modest measure, because it proposes to leave out certain words and replaces them by other words so that the new phrase would read:
in relation to a strike or other industrial action at the establishment who took part in it.
That would refer to any employee who took part in the industrial action and not just those who were still taking part in it at the date of the complainant's dismissal. That is a very important change, and the amendment says that we must go further to encourage any unscrupulous employer to have legal support in splitting his employees where there is industrial action. I hope that all noble Lords who believe that the workers have a right, where it is justified, to take industrial action will support this amendment, because it puts the law back to where it ought to be and does not restrict it as proposed by the Government. I beg to move.
§ Lord Mackay of Clashfern
My Lords, as the noble Lord, Lord Underhill, has explained, this amendment would preserve an anomaly in the existing provisions which Clause 8 seeks to correct. It may be helpful if I seek to remind your Lordships of the background. When the principle that employees have a right not to be unfairly dismissed was introduced for the first time in 1971 by the then Conservative Government, it was decided that a balance had to be struck between the need for employers to be able to dismiss employees in fundamental breach of their contracts, and the right of individual employees to be protected against dismissal which could be accounted unfair, even though by their actions they had repudiated their contract of employment. The balance was struck in the test of discrimination which is currently set out in Section 62 of the Employment Protection (Consolidation) Act 1978.
Section 62 excludes the industrial tribunals from jurisdiction to hear a complaint of unfair dismissal made by an employee who was participating in a strike or other industrial action, or involved in a lockout, 321 at the time of his dismissal, provided the employer has dismissed all the "relevant employees":—that is, those who took part in the action in question—and either does not make any of them at any time an offer of re-engagement, or makes an offer of re-engagement to all of them.
A decision of your Lordships House sitting judicially in 1978, in the case of Stock v. Frank Jones (Tipton), found that there was discrimination, and a claim of unfair dismissal could be heard, if the employer had not dismissed all employees who had participated at any time in the industrial action in question, rather than, as had previously been generally thought, just those who were striking or taking other industrial action at the time of the dismissal in question. This means that if an employee who had participated in the action returned to work, the employer could face a claim for unfair dismissal from any of the other employees who continued with the action, even if he dismissed them all. However, if the employer also dismissed those who had returned to work, then they would be able to complain to an industrial tribunal, because they were dismissed while not taking industrial action. So at present, under the clause as so construed, an employer with a strike on his hands is, so far as this provision is concerned, in a "Catch 22" situation.
Some very strange examples can arise from this and let me just give one. An employer could allow strikers back to work in the belief that the action was ended, without knowing, or having any means of knowing, that others who possibly could be based in a different part of the country proposed to continue the action, even at a later date. If he accepted the return to work of the first group, he would risk complaints of unfair dismissal in the way described if he dismissed those who continued to strike. On the other hand, if he delayed their return until he was certain that none other of his employees intended to participate in the action, then he would be ignoring the wish of the first group to remedy the fundamental breach of contract involved in taking industrial action, and might be held to have locked-out his employees although he had been forced into that situation by the anomaly in the law as it now operates.
The noble Lord, Lord Underhill, referred to the possibility that the leaders or activists might be victimised, if our provision proceeds in its present form. But the truth of the matter is that our provision would differentiate between those who have returned to work and those who have remained on strike. Therefore, if what the noble Lord is saying is that those who remain on strike are the leaders, then they have ceased to lead because they have lost their flock and the flock have returned to work. Why should the law not recognise the fact that the flock have voluntarily decided, on their own, to go back to work, that the leaders no longer lead and are now taking action in which the flock do not follow them? Why should the law operate in this way in that situation? Accordingly, in my submission, the proposal that we are making for a change is a very reasonable one, and I ask your Lordships not to accept this amendment.
§ Lord Underhill
My Lords, I have listened very carefully to what the noble and learned Lord the Lord Advocate has said and there are two points which 322 I wish to take up. First, he said that one could have a situation where workers have returned to work from other parts of the country; but the clause being put forward by the Government defines the establishment where the employees are concerned as being only at or where or from which the complainant works. Therefore the question of other parts of the country must be dropped from this argument.
Secondly, the noble and learned Lord spoke about all the flock having gone back to work. We are discussing a situation where the employer can reengage just a few people and take them back into work but not take the whole lot back. All the trade unions regard this as legalisation of the possibility of victimisation. This is a principle which I am certain everybody in this House would stand for, and in the light of the Government's refusal we must press it to a Division.
§ 9.46 p.m.
§ On Question, Whether the said amendment (No. 26) shall be agreed to?
§ Their Lordships divided: Contents, 35; Not-Contents, 60.324
|DIVISION NO. 4|
|Ardwick, L.||McCarthy, L.|
|Aylestone, L.||Mackie of Benshie, L.|
|Birk, B.||Mais, L.|
|Bishopston, L.||Milner of Leeds, L.|
|Blease, L.||Molloy, L.|
|Cledwyn of Penrhos, L.||Oram, L.|
|Collison, L.||Parry, L.|
|David, B.—[Teller.]||Peart, L.|
|Ewart-Biggs, B.||Rochester, L.|
|Hirshfield, L.||Seear, B.|
|Houghton of Sowerby, L.||Sefton of Garston, L.|
|Jeger, B.||Stedman, B.|
|Jenkins of Putney, L.||Stewart of Alvechurch, B.|
|John-Mackie, L.||Stewart of Fulham, L.|
|Kilmarnock, L.||Strabolgi, L.|
|Llewelyn-Davies of Hastoe, B.—[Teller.]||Underhill, L.|
|Lovell-Davis, L.||Wynne-Jones, L.|
|Alexander of Tunis, E.||Elliot of Harwood, B.|
|Auckland, L.||Elton, L.|
|Avon, E.||Ferrers, E.|
|Bellwin, L.||Ferrier, L.|
|Belstead, L.||Fortescue, E.|
|Boardman, L.||Gainford, L.|
|Campbell of Alloway, L.||Gardner of Parkes, B.|
|Cathcart, E.||Glenarthur, L.|
|Chelwood, L.||Gowrie, E.|
|Cork and Orrery, E.||Gridley, L.|
|Craigmyle, L.||Hives, L.|
|Crathorne, L.||Holderness, L.|
|Cullen of Ashbourne, L.||Home of the Hirsel, L.|
|Davidson, V.||Hornsby-Smith, B.|
|De La Warr, E.||Killearn, L.|
|Denham, L.—[Teller.]||Lauderdale, E.|
|Drumalbyn, L.||Long, V.|
|Eccles, V.||Lyell, L.|
|Elles, B.||Mackay of Clashfern, L.|
|Mansfield, E.||Romney, E.|
|Marley, L.||St. John of Bletso, L.|
|Marshall of Leeds, L.||Sandys, L.—[Teller.]|
|Mersey, V.||Sharples, B.|
|Mottistone, L.||Sudeley, L.|
|Murton of Lindisfarne, L.||Thomas of Swynnerton, L.|
|Renton, L.||Trefgarne, L.|
|Rochdale, V.||Trenchard, V.|
|Trumpington, B.||Vivian, L.|
|Vaux of Harrowden, L.||Windlesham, L.|
|Vickers, B.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.325
§ 9.53 p.m.
Lord Oram moved Amendment No. 27:
Page 11, line 40, at end insert—
("(3A) After subsection (4)(c) there shall be added—
("(d) "taking part in the action" in paragraph (b) above means taking action with the same or a connected interest in a dispute, whether or not different groups of those employees take the action by way of a strike or of other various forms of industrial action.".").
§ The noble Lord said: My Lords, I beg to move Amendment No. 27. The House will remember that at Committee stage, because at that time we were under timetable pressure, we dealt not with specific amendments to Clause 8 but with the clause as a whole. In so doing the noble and learned Lord the Lord Advocate took the same stance in relation to this clause as the Government do to the Bill as a whole. As my noble friend Lord Underhill pointed out in relation to the last amendment, the noble and learned Lord the Lord Advocate suggested that this clause was modest in its intention and effect. He suggested that its purpose was little more than to clear up anomalies which had emerged, particularly in case law. In fact, I believe that that argument is but the sheep's clothing that attempts to conceal the wolf underneath.
§ The effect of this clause, in my view, as of the Bills of which it is a part, is to undermine certain fundamental pillars of trade union strength. Its purpose and its method are to make unity of action by trade unionists much more difficult to achieve. On the one hand, it seeks to divide those who are resolute about a particular dispute from those who are less resolute, and, on the other hand, it seeks to divide employees in one establishment of a business from those in other establishments.
§ Unionists often quote the slogan, "United we stand, divided we fall". Clause 8 seeks, in my view, to ensure that trade unionists shall be divided and therefore shall fall, and it will give to employers a greatly increased capacity to divide and conquer. That I believe to be the effect of the clause if it goes un-amended, because by virtue of Clause 8 the employer no longer has to look at all those who are taking part in the industrial action, but only at a more narrowly defined reference group at a particular establishment, and, as I see it also, at those engaged in a narrowly defined dispute.
§ The purpose of the amendment which I am moving is to prevent at least some of the stresses and divisions between workers which the Bill will bring about. The amendment would ensure that a wider range of employees would be able to bring valid complaints to an industrial tribunal than would be the case if Clause 8 were not so amended. It would ensure that the definition of "relevant employees" for the purposes of Clause 8 was not so restricted as to isolate a few workers from their fellow employees who might be taking similar action, such as working to rule rather than striking, in relation to a different but clearly connected grievance. If my amendment is accepted, as I hope it will be, it would not, of course, remove the fundamental objection which my noble friends and I have to the clause as a whole, but it would at least, in my judgment, limit to some extent the harm that 326 the clause as it stands threatens to cause. It is for those reasons that I beg to move.
§ Lord Mackay of Clashfern
My Lords, as I understand the amendment, it seeks to define the phrase "taking part in the action", which I must say at first sight seems a fairly simple phrase, readily comprehensible, by a fairly long formula, and not to do much more than that. As the noble Lord, Lord Oram, has said, the amendment is concerned with the definition of "relevant employees". The amendment aims to include explicitly in the definition of "relevant employees" all employees with the same or a connected interest in the dispute and all employees involved in industrial action irrespective of the form the action takes. We believe that these classes of employees are already included in the provisions and, as it seems to us, included more simply in the phrase "taking part in the action". When one looks at the factual situation one sees what the action is and you just take all the employees taking part in that. I must say, with great respect, that I do not see that the noble Lord's amendment adds anything to that or does anything to effect the general purpose he mentioned.
I understand perfectly, of course, his objection and that of his noble friends to Clause 8, which has been expounded very clearly both tonight and earlier. But, at the moment anyway, I do not see that this particular amendment assists the matter and for our part we would prefer to rest with the simple words, "taking part in the action". I hope that your Lordships will find it possible to agree with us.
My Lords, I do not think that the noble and learned Lord the Lord Advocate dealt with the point that I attempted to make, that "action" is not sufficiently defined. It might or it might not include action like working to rule where one group might be on strike and another group might be working to rule, and they might be involved in a related, but not exactly the same, dispute. It is the purpose of my amendment to make sure that that wider definition is incorporated in the Bill. However, I heard what the noble and learned said about how, in his view, the present wording is wide enough for that purpose. I wish to look at what he said more closely. Certainly, I do not wish at this stage to press this particular amendment to a Division and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 9 [Action relating to trade union membership]:
Lord McCarthy moved Amendment No. 28:
Page 12, line 16, at end insert—
("(1A) In section 23 of the 1978 Act there shall be inserted after subsection (1)—
(1A) An employee shall not have the right conferred by subsection (1)(c) above except in respect of action which deprives or threatens to deprive him of some benefit or advantage relating to this employment which has not been the subject of collective bargaining between the employer and a recognised trade union.".").
§ The noble Lord said: My Lords, I beg to move 327 Amendment No. 28. In my opinion this is the most reasonable amendment that we have put before the House in the entire Committee stage and Report stage. It is an attempt to preserve the right of benefit for members only. We did not move it at the Committee stage because there was not time and it is rather complicated and needs some explanation. However, I will deal with it as quickly as I can.
§ The Government have now created a right to be protected from action short of dismissal to force someone into a union. Indeed, the aim of the present Clause 9, as we debated in Committee, is to make it clear that it is action short of dismissal to operate an agency shop—that is even if you do not belong to the union, you might pay an equivalent in dues. We are not concerned with the agency shop aspects of Clause 9 tonight: we are aiming to use this to add a new section to the 1978 Act dealing with the general extent of the liability of action short of dismissal in the case of non-unionism. We do not want to prevent a situation where all that the employer is doing is to deprive the non-unionist of the results of collective bargaining. That, in effect, is a rather legalistic way of providing benefits for members only.
§ There was a time when the Conservative Party was very much in favour of benefits for members only. This was one of the ways in which they argued against a need for the closed shop. They used to ask at the time, for example, of the giant strength, why the trade union movement needed a closed shop, and when the answer was that it was to make people accept their obligations and not to be free-riders they said, "There is a simple way out of that; you just give the trade union benefits to members of the trade union and if you are not a member of the trade union you do not get the benefits, you do not get the wages, you do not get the conditions. That is perfectly fair and as a result people will join the union because they will see the relationship between benefits and union membership"—benefits for members only.
§ There always were good reasons why the trade unions were somewhat reluctant, in this country at least, to operate the principle of benefit for members only. Traditionally, trade unions have believed that the way in which you demonstrate to non-unionists the benefits of trade unionism, is to get benefits for all so that you operate what the Webbs called "the common rule"; and when people ask, "What are the benefits of trade unions?", you can say, "The benefits are the terms and conditions of employment which you enjoy, whether you are a member of a union or not. Do you not think that as we have all these things for you and you are enjoying all these things, you ought to join a union?" That was the traditional argument against benefits for members only.
§ But, secondly, of course, they always feared—particularly where they were weak and where they had certain suspicions of employers—that the employers might be given an incentive to employ non-unionists; if you could not get non-unionists at lower rates and conditions of employment, then you had to pay trade unionists. So, for these reasons, in this country at least, the trade union movement—not universally, 328 but generally—turned its back on benefits for members only.
§ But there were examples. For many years, there were some examples in, for instance, the Post Office of certain benefits negotiated for members only, and there are many more examples in other industrial relations systems. The United States' benefits for members only for a period was a very common way of inducing people to join the union. We are saying, "Let us make this lawful; let us make this legal". In the days when the closed shop was easily enforceable, benefits for members only were perhaps not an attractive alternative. But if you are making the closed shop—as you are—increasingly impossible to operate, as we have sought to argue tonight, as we have argued in particular in respect, say, of Equity and as I think we shall also go on to argue in respect of certain other amendments when we come to Clause 11, for unions that are in a very difficult situation, surely it ought to be possible for them to operate benefits for members only.
§ It may be that the noble and learned Lord the Lord Advocate will tell me that, in fact, Clause 9 does not strike at benefits for members only—I do not know. If he does, I say let us have this amendment because he cannot prove it, in the same way as he or his noble friends could not prove it earlier about professional men. But, if there is any doubt, let us have it.
§ Of course, it would mean that such things as wage increases and reductions in the working week—all the things that were quite clearly the result of collective bargaining—could, if the employer and the union agreed, be confined to members only; whereas other things, for example, promotion opportunities, non-negotiated benefits, merit ratings and so on—all those aspects of the employer's relationship with the employee which he does not bargain about, and there are still a large number of those—would not be covered by this clause.
§ It is not just that we are trying to make something possible for unions which they do not do now and which you might say that they have shown very little sign up to now that they would necessarily want to do. There is a real problem here, and I should very much like the Government to tell me what they take the law to be.
§ There is one way in which trade unions universally now give benefits for members only, as has always been the case. You cannot gain access to a procedure in industry, if that procedure is a joint procedure and if it is operated by, for example, shop stewards. No shop steward will ever take up a grievance for a nonmember and I think that that is reasonable. If the stewards operate the system and represent the people in the system, they will not represent the interests of non-members. One of the traditional ways in which open shop unions have members, is that a non-unionist has not seen the point of trade unionism until he has a problem and he has wanted someone to go to the foreman and argue on his behalf. The foreman may say, "I think you ought to get yourself a shop steward".
§ So the non-member has said to the shop steward, "I would like you to take up this grievance", and 329 the shop steward has said, "You are not a member". Of all the recruiting agents that is probably the single most important recruiting agent of trade unionism—people with problems who want a representative. We are not certain—perhaps the noble and learned Lord the Lord Advocate is certain—whether a practice in which trade unionists said, and in which employers co-operated, that you could not get access to the higher levels of the procedure (for example, you could not get a grievance raised about whether or not your job evaluation assessment was correct) because that is a benefit which is confined to trade unionists only, could be said to be something which was against this clause—that is, action short of dismissal. There are a range of benefits which de facto tend to be confined to trade unionists, so we are saying, let us make this clear, self-evident and lawful, and let us accept the amendment.
§ 10.10 p.m.
My Lords, as the bowling has returned to me, the noble Lord, Lord McCarthy, will have the satisfaction of knowing, as he put it in his own words, that he will not be outclassed, so he may relax. The noble Lord generously acknowledged that his amendment was complicated. I will also acknowledge that Clause 9 is complicated and is quite difficult to follow. It may therefore help if I briefly explain the background to the clause before I deal directly with the noble Lord's amendment.
Section 15 of the 1980 Act provides a general right in closed shops, although it is one which is qualified, for an employee not to have action which is short of dismissal taken against him by his employer in order to compel him to join a union. What might be action short of dismissal has in fact never been defined in legislation, but it could clearly cover actions such as withholding promotion, or taking away fringe benefits, or even giving lower pay. Of course it was the Government's view that it was right that where no closed shop existed employees should not be forced by these methods into union membership.
The position, though, where a closed shop is in operation is of course a different one. The 1980 Act recognised that fact by giving the right not to be forced into union membership only to those employees who cannot be fairly dismissed if they are not members in a closed shop under the 1980 Act. Clause 9 of the Bill does no more than to extend the rights of an employee in a closed shop not to be forced in this way to be a member to the additional situations in which dismissal for not being a member will be unfair under the provisions of Clause 2. This will be principally where a closed shop has not been approved in a secret ballot.
Lord McCarthy's amendment adopts an alternative approach whereby all employees in a closed shop would have the right not to have action short of dismissal taken against them to compel union membership, except if the action against them amounted to depriving them of benefits which have been negotiated by a trade union, in which case such action would be all right. It has been argued that if a union has negotiated benefits for its members and certain employees refuse to join or remain in that union, they should not be entitled to the union-negotiated benefits—the old argument of the free rider. Therefore, if an employer 330 deprives them of these benefits he is, goes the argument, justified in doing so and he should not be subject to tribunal proceedings on that account.
This line of argument, I suggest with respect, misunderstands the right given to employees in the 1980 Act and which is extended by this clause. For this right to apply it must be shown that the employer has taken action against his employee for the purposes of compelling him to be a trade unionist. There is nothing to stop an employer negotiating a benefit for his employees with a trade union, such as an extra week's holiday, but withholding this from his nonunion employees. That is perfectly fair, so long as he does not do this in order to compel them to join a union.
May one give an example. It is perfectly acceptable for union members to be paid, say, 5 per cent. wages above non-union members, but it would be obviously unfair to have wage increases for union members but none to those who are not union members. An employer is not prevented from ever differentiating between his union and non-union employees. But the whole point of this clause is that he must not use this differentiation process as a backdoor method to force into union membership an employee who does not wish to join, and whose employer knows that dismissing him for non-membership would constitute an act of unfair dismissal. The amendment, by contrast, could allow such an employee to be squeezed into membership without a remedy. I do not think that is reasonable, and that is why I hope the noble Lord will not press the amendment.
§ Lord McCarthy
My Lords, I must say immediately that I acquit myself of any desire to put myself in the same class as the Minister. I was not trying to do that at all but merely implying that the noble and learned Lord the Lord Advocate outclassed me, certainly when it came to the case law, or what I always refer to, in relation to my noble friend Lord Wedderburn, as "Stock v. Jones and all that jazz". When it comes to that, he outclasses me.
Having said that, I come to remarks of the noble Earl, and a considerable part of them I found reassuring. I only hope that some such legal luminary as the new Master of the Rolls might take a similar view if the matter ever came before him. He said, if I understood the noble Earl aright, that you could take action as an employer, for example, to give 5 per cent. more wages to the trade unionist than the non-unionist, and that that would not be action short of dismissal. That is well worth having on the record. I was not so happy when he said you could not give any increase to the non-unionist, because I am not sure of the difference between giving 5 per cent. more—that is, 5 per cent. of nothing—rather than 10 per cent. and 5 per cent., and I am not sure the Master of the Rolls would follow that either. It is, however, helping us.
The difficulty of what the noble Earl says is that you must not do any of it with the purpose of compelling anybody to join a union, when in a way that is the purpose; it benefits the members only and it is a way of getting people to see the point of trade unionism. I gave a concrete example of what actually happens, but he did not answer me on that. Take, 331 for example, the case where somebody is deliberately—by the shop steward and with the acceptance and encouragement of the employer—blocked off from the use of certain procedures, which may or may not result in upgrading. Would that be action short of dismissal? There could be no doubt about the purpose; namely, to compel people to join the union. What the shop steward says is, "I am not going to do all this work for somebody who is not even a member. Go away and be a member". I am not sure whether the noble Earl is saying that that is action short of dismissal and would or would not be unlawful. As, therefore, he has not reassured me on all those matters but only some of them, I cannot withdraw the amendment.
§ Baroness Seear
My Lords, may I ask the noble Earl, Lord Ferrers, to say what he means by "compel"? If you offer somebody a lower level of pay, which is not a nice thing to be offered, it might induce them to go, without compelling them to go; they could still take a lower level of pay if they wished to do so. You may be inducing them or motivating them in that direction, but not compelling them. May I ask the noble Earl to explain that rather more fully?
My Lords, I will, with the leave of the House, try to answer that question and the point worrying the noble Lord, Lord McCarthy. I would say that it is perfectly reasonable to have a differentiation, for instance, between wage rates for union and non-union members. It is perfectly reasonable to say, "Those who are union members will get a 5 per cent. rate above non-union employees", and I take that merely as an example. When negotiating new wage rates, maybe they will all go up, and you will still have a 5 per cent. differentiation. What would be unfair would be to say, "We shall negotiate a wage increase for union members and union members will have a wage increase, but meanwhile non-union employees will have no increase". However, it would not be unfair to have differentiation between the two.
The noble Baroness asked what is meant when one talks about "compelling". Clearly, it would be unfair if an employee were, for instance, to have taken away from him his company car because he was not a member of a trade union. Likewise it would be unfair if it were said that because a person were not a member of a trade union, he would be denied promotion. That would be unfair, but it would not be unfair to have a differentiation between rates of pay, provided that they are consistent.
§ Lord McCarthy
My Lords, I should like to raise just one point before the noble Earl finally sits down. This is a very important matter, and the noble Earl is giving us great help. But I should like to ask, how does one move towards that situation? There is now the situation where everybody is on the same rate of pay, and one wants to move towards a situation, which the noble Earl says would be lawful, where trade unionists receive 5 per cent. more than non-trade unionists. But the only way to achieve that is to give a 5 per cent. increase to trade unionists and nothing to non-trade 332 unionists. That is how one would reach the situation which the noble Earl says would be lawful, but it would be reached by what he says are unlawful means.
On Question, amendment negatived.
Earl Ferrers moved Amendment No. 29:
Page 13, line 4, at end insert—
("(4) In subsection (1)(c) of that section, for the words "a trade union" there shall be substituted the words "any trade union or of a particular trade union or of one of a number of particular trade unions".").
§ The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 20. I beg to move.
§ On Question, amendment agreed to.
§ Clause 10 [Awards against third parties]:
Earl Ferrers moved Amendment No. 30:
Page 13, line 13, leave out ("a trade union") and insert ("any trade union or of a particular trade union or of one of a number of particular trade unions").
§ The noble Earl said: My Lords, this amendment is in the same vein; it is also consequential. I beg to move.
§ On Question, amendment agreed to.
§ Clause 11 [Prohibition on union membership requirements]:
§ [Amendments Nos. 31 and 32 not moved.]
§ The Deputy Speaker (Earl Cathcart)
My Lords, in calling Amendment No. 33 I should say that, if it is agreed to, I cannot call Amendment No. 34.
§ 10.23 p.m.
Lord Ardwick moved Amendment No. 33:
Page 15, line 34, leave out from ("above;") to end of line 36.
The noble Lord said: My Lords, I beg to move Amendment No. 33, with which goes Amendment No. 34. We are endeavouring to amend and make narrow in its scope subsection (7). The subsection defines those to whom a duty is owed to comply with subsection (2), which deals with lists of potential suppliers and people who may be invited to tender. If the duty is not carried out, there is a contravention and damages may be claimed. Subsection (7)(d)—which we are seeking to amend—adds to the people to whom a duty is owed and who can claim damages,
any other person who may be adversely affected by its contravention".
Surely that is far too wide a category. The danger is that we have here a subject which can easily feed the litigious, or feed the zeal of a paranoid or a crank. The subsection in effect opens the front door and invites anyone and everyone to come to the party and try to win a piece of cake.
§ The amendment simply proposes that the obligation to comply is a duty owed only to the excluded person against whom the contravention was directed. But as it appears in the Bill, subsection (7) is a step in the dark, a step into the unknown. It refers to any person "adversely affected". How long must the train of causation be before someone is excluded from taking 333 action? Can damages be claimed, for example, by the creditors of a company who have not been paid because the company was left off a list? The sub-contractor of an excluded main contractor may presumably claim damages, and so presumably could an employee of the sub-contractor who has been made redundant through its plight.
§ Of course, the courts have rules about the remoteness of damage, but where does the remoteness stop? It is argued that a plaintiff would have to show a locus standi, but will this be really difficult? How far can a plaintiff get in an action before proving that he has suffered damage? Can he drag a defendant into court on what may prove to be a useless but expensive and time-consuming exercise? It is these fears that have caused us to put down this amendment, and surely it is one which is sheer common sense and which the Government ought to accept.
§ Lord Campbell of Alloway
My Lords, very briefly, I see the problem raised by the noble Lord opposite, but persons adversely affected, questions of causation and questions of remoteness of damage really and truly belie exact definition, and any attempt to do so could only add a wholly unworkable provision. All that one can do within this sphere is to take aboard the case law in the three aspects of this problem that exist and allow the tribunal to adjudicate accordingly. There is no way that this can be improved by definition. One of the problems of law is seeking to over-define, and, in submission, there really is no advantage in this amendment.
§ Lord McCarthy
My Lords, if I may say this to the noble Lord, look at the clause. In number and circumstances the clause already defines these things in the widest possible way. If you ask to whom a duty is owed, then already a large number of people are mentioned in a whole range of circumstances. The clause covers all or part of work done under a contract for the supply of goods or services; it covers lists of suppliers; it covers failing to permit a particular person to submit a tender; it covers work done or likely to be done.
Then there are the circumstances in which the liability is to arise. If one asks who, then, is to be compensated, the clause says the would-be supplier of goods or services; any other party to the contract who is affected; any other person covered by subsection (3), which is a person excluded from the tender process, a person not permitted to submit a tender; or a person otherwise affected—otherwise determining not to enter into a contract with a particular person for the supply of the goods or services".Surely one would be justified in thinking that, already, the clause included virtually everyone under the sun; and yet at subsection (7)(d)—and this is all that my noble friend is saying—we have yet another unspecified general character:in any case, any other person who may be adversely affected …".All we are saying is, can we not drop that paragraph from the clause?
§ Lord Mackay of Clashfern
My Lords, with this amendment we return to the question of who can bring a legal action for a breach of statutory duty under Clause 11, and since we did not perhaps debate this 334 question fully at Committee stage it may be helpful if, at the outset, I remind your Lordships how Clause 11(7) is constructed.
As the noble Lord, Lord McCarthy, has just said, subsection (7) sets out those who have a right of action under Clause 11. Paragraphs (a), (b) and (c) of subsection (7) give that right to those who are directly on the receiving end of the unlawful practices described in subsections (2) and (3). In other words, broadly the non-union firms who are excluded from a tender list or a party to a contract which is terminated or otherwise prevented from tendering for or entering into a contract on union membership grounds. The purpose of paragraph (d) is to cover anyone else who may be able to show that he has suffered loss as a result of such union membership requirements. It is this paragraph which the noble Lord, Lord Ardwick, by this amendment, seeks to remove.
Perhaps I should say, in passing, that if the noble Lord, Lord McCarthy, is right that (a), (b) and (c) cover everything under the sun, (d) adds nothing; so there is no point in removing it. Paragraph (d) is based on the simple principle that someone who suffers loss or damage as a result of an unlawful act should have the right to bring court proceedings against the wrongdoer to recover the loss. This is not a new principle. It runs through much of the statute and civil law of this country; and it is fenced around with the principles that the noble Lord, Lord Ardwick, referred to, of remoteness of damage and the courts take a realistic view of these matters in considering particular cases.
I believe that, in another context, even noble Lords opposite would not want to question this general principle very much. The reason they do so in this case is that they disagree not just with this paragraph or this subsection but rather with the clause as a whole. They do not accept that union membership requirements should be made unlawful and therefore they want to limit as much as possible the rights of those who are on the receiving end of such requirements. This is the fundamental difference between the Government and noble Lords opposite on this question. At root, it is not a difference of legal interpretation or application but a difference of policy.
We believe that union membership requirements imposed on contractors are unacceptable. It follows from this that anyone who suffers loss as a result of these practices should have a legal remedy. That is why we cannot accept the noble Lord's criticism of paragraph (d). The noble Lord has questioned who will come into the category covered by paragraph (d). The answer is: anyone who can show he has suffered loss directly as a result of the unlawful acts described in the clause. This does not mean that everyone will have a cause of action, however remote he is from the unlawful act, or however slight the effect he has suffered. I think that Lord Ardwick in moving his amendment recognised that.
As my noble friend Lord Gowrie explained at Committee stage, anyone bringing proceedings will have to show that he has sufficient locus standi to establish his case; that is to say, that he is party to a legal relationship sufficient to enable him to state a case. Nevertheless, we believe that if he can show a sufficient cause of action he should have the right to 335 bring legal proceedings. Perhaps I can give two examples of people who might be able to show a sufficient cause of action to bring legal proceedings and who might be deprived of that right if paragraph (d) were removed. First, there is the employee of the contractor who may, for example, be made redundant by the contractor because the contractor fails to get a contract or has his contract terminated on union membership grounds. Secondly, there is the subcontractor—and this is one of the questions the noble Lord asked—to the main contractor who is not a direct party to the contract concerned but who may suffer loss as a result of the main contractor having his contract terminated because of union membership requirements.
There is, of course, also the point that the only people who have anything to fear from Clause 11 are those who continue with the practices which it makes unlawful. In other words, they will only be liable to be sued under any branch of subsection (7) if they act unlawfully under one of the earlier branches of the clause. From the Government's point of view, the possible widening by paragraph (d) of those who may take action to advantage must surely increase the effectiveness of the main provisions. I hope that in the light of these reasons the noble Lord may feel able to withdraw his amendment and that, if he does not, your Lordships will feel able to reject it.
§ Lord Ardwick
I do not propose to withdraw it. We dealt with the contractor, and the sub-contractor; but you can have the sub-sub-contractor. It does seem that it can go on for a long, long way and has its absurdities.
On Question, amendment negatived.
[Amendments Nos. 34 and 35 not moved.]
§ 10.34 p.m.
Lord Jenkins of Putney moved Amendment No. 36:
Page 15, line 39, at end insert—
("(9) Nothing in this section shall be held to void a contract which is a contract of service or a contract for the supply of services between parties whose relationship is that of employer and employee or whose service is or services are provided personally by one of two contracting parties.").
§ The noble Lord said: This amendment refers to Clause 11 but, as noble Lords will be aware, Clauses 11, 12 and 13 (to which I also have amendments) deal with the same subject and come under a general heading. Therefore, although I am moving only Clause 11, at this late hour it might be for the convenience of the House if I spoke not only to the amendment to Clause 11, but also to the amendments we have down to Clauses 12 and 13. I do not know whether that is going too far; but I think it would be generally agreed that these clauses are all dealing with a single subject. Therefore it might be for the convenience of the House if we were allowed to speak to all the amendments.
§ The point one wants to make, dealing with the amendment to Clause 11, is this. In seeking to prevent the enforcement of a trade union obligation upon contractors, these clauses catch a group of people whom it was not intended to catch. They appear to me—and correspondence with the noble and learned 336 Lord the Lord Advocate has not entirely removed the problem—to catch any person who is in an employee relationship if that person is engaged on a contract for services and not on a contract of service.
§ I accept the point made on behalf of the Government by the noble and learned Lord in a letter that he has been good enough to send me, that if a person is an employee in the ordinary sense of the word and is engaged in a contract of service, as is the case with an employee—that is, somebody who pays PAYE and is in the ordinary position of an employee—then he is not caught by any of these three clauses.
§ The noble and learned Lord will agree with me when I say that there is a group of people, those who are on a contract of service who are in the business of providing a service rather than selling their services, who are still caught under these clauses. That is why the amendments have been put down. The amendments seek to exclude from the clauses a group of people which the Government did not intend to catch in them but which nevertheless are caught. The three amendments with which I am associated all seek to protect the interests of this group.
§ There is a good deal of confusion in the documents which have been issued in support of an explanation of the clauses. In the Notes on Clauses, referring to Clause 11 and Clause 12 the explanation begins by saying that the clause will make void any term in a commercial contract requiring a contractor to use only union labour or only non-union labour in fulfilling the contract. It envisages, in other words, a contractual situation between a contractor and a principal. It is not the intention—and it is not suggested in the explanation—that it covers a person whose relationship is in effect that of an employer and employee.
§ If one looks at the Notes and Guidance, it says that Clause 11 makes void any term in a commercial contract requiring the contractor to use only union labour. The document from the Conservative Central Office is in a state of total confusion. This document, issued by the Conservative Research Department confuses—I think accidentally—Clausel2 with Clause 11; and Clause 10 with Clause 11. In a section about Clause 13 it talks continuously about Clause 12. This confusion which exists in the Conservative Research Department document of explanation can only do harm in what is a complex clause by creating a certain amount of confusion in the minds of noble Lords if they are relying on this document to understand this rather complex situation.
My amendment seeks to insert the following words:
Nothing in this section shall be held to void a contract which is a contract of service or a contract for the supply of services between parties whose relationship is that of employer and employee or whose service is or services are provided personally by one of two contracting parties".
I accept that the exact wording of this amendment may not necessarily be acceptable to the Government, and if in replying to this debate the Government were able to give an assurance that they accept that the clause as at present drafted embraces a body of people it was not intended to embrace, and if they would say they will look at this problem with a view to excluding the kind of people I have in mind, I—and I hope my noble colleagues will agree with me—would not seek to press this to a Division. But if the Government
are not able to do that, then I hope that my noble friends on this side of the House will say that it must be pressed to a Division, because I believe that in these clauses the Government are doing something which they did not seek to do. In my opinion, it is impossible for any rearrangement to be made which will exclude the freelance person who offers his services.
§ I believe that person is caught under the clause as at present drafted. I believe that the Government recognise that they are caught; and in saying that the employee or employees should rearrange their arrangements so as to exclude themselves they are in fact saying: "We have drafted the clause in these words and they catch these people: so these people must do something to get themselves out of it". That is not right. It is the legislation which should be altered and not the relationship between people. For that reason, I beg to move this amendment.
§ Lord Ardwick
My Lords, if I have got it right—and after what my noble friend has just said I am not at all certain that I have got it right—this amendment and these other amendments are an endeavour to distinguish between an ordinary commercial contract and a contract between an employer and a worker for the supply of his services. The definition of a worker of this kind was given in the Act of 1974, which refers to the worker who is an independent contractor, provides his own labour and hires out his labour on the basis of an independent contract.
The object of the amendment in effect is to exclude such contracts from the clause. Such workers are in one respect self-employed persons and in another they are employees and they are, or have been until now, responsible not only for their own national insurance payments but also for directly paying their own income tax. It is not, or was not, the responsibility of the employer of people who are under contract for services to deduct tax, but I will come back to that in a minute.
I have worked in various newspaper offices alongside a number of people who have had a contract with our employer for their services. Usually these were "star" writers, celebrities, people with several strings to their how—novelists, broadcasters and so forth. Sometimes they are earning more than the editor himself, but in a newspaper office they were indistinguishable from all of us who were working under ordinary contracts of employment. They belonged to our union, they took part in the meetings of the chapel—indeed, they were eligible for positions in the chapel—and, of course, they responded normally, like the rest of us, to editorial disciplines.
On some newspapers that I have served it was part of their contract that they must be members of the National Union of Journalists, or more delicately, that they were expected to be members of the NUJ. When I was an editor, if there had been an Act of this kind I should not have been able to recruit the services of some highly gifted people without making it a condition that they should be members of the union. But now an editor might not be able to recruit a star writer or a cartoonist, because he cannot insist that he should be a member of a union. Yet if he is not willing to become a member, there will be trouble with the chapel. The Minister 338 may say that it is impossible to distinguish between a virtual employee on a contract for services and an outsider who contracts to do the occasional job—like the late T. W. H. Crosland, who described himself as a jobbing journalist, on his card, adding "Cashiers waited on in their own apartments."
Although the Department of Employment may not be able to distinguish between the two, the Inland Revenue has, only during the past few weeks, found a way. An edict has been issued that newspaper managements in Fleet Street who have journalists employed under contracts for their services must deduct PAYE, and they are saying that these employees can no longer be treated as Schedule D payers. I understand that the Musicians' Union, and even people on North Sea oil rigs, have recently been caught in this same net. The Revenue seem to regard people in these circumstances, whatever their contracts, as having a master and servant relationship, which I think is precisely what the Department of Employment is denying. The Department of Employment says that it can make no such distinction. You may not insert a condition about union membership in a contract for the service of somebody, though you may insert it in a contract of employment. It seems to be an absurdity, an inconvenience to employers and a potential cause of unnecessary friction.
§ Lord McCarthy
My Lords, I do not want to delay the House for very long. I merely want to point to something at the end of a very helpful letter from the noble and learned Lord. Lord Mackay of Clash-fern, in which he says—and if he thinks about it, he knows that he connot mean it—There is, of course, nothing to prevent Equity or the theatre managements from exempting themselves from the provisions of these clauses by ensuring that in future contracts under which performers work are contracts of employment".Everything that has been said from our side of the House tonight has been to show that there is everything to prevent Equity, theatre managements, the National Union of Journalists, the Daily Mirror or anybody else from acting in this way. The fact is that the nature of the work is such that these performers or jobbing journalists cannot be dealt with as though they were simply routine contract of employment workers, and that is the essence of our amendment.
§ Lord Mackay of Clashfern
My Lords, this amendment, as has been explained, is primarily designed to exempt members of, for example, the British Actors' Equity Associations, with the particular arrangements that they have, from the provisions of Clause 11. Because the principles are the same in relation to the later amendments to which the noble Lord, Lord Jenkins of Putney, referred, it is helpful to discuss them all at the same time.
As noble Lords are aware, Clause 11 is about the imposition of union membership requirements through commercial contracts—about the practice of companies and councils refusing to do business with other firms or individuals because they do not use trade union members to carry out the work. I think I should say at the outset that Clause 11 and the subsequent clauses 339 do not affect the requirements about union membership or recognition which appear in contracts of employment or contracts of service. This means that it does not impinge upon the normal employment relationship between an employer and his employees.
I think there may have been some confusion about this point at earlier stages and it perhaps appears again in the amendment. When we talk about employees as a matter of law, we are referring specifically to those who work for an employer under a contract of employment or a contract of service. If a person works under any other contract, he is not regarded by the employment legislation or by the law generally as an employee. So, in saying that the clause does not affect the relationship between an employer and his employees, we have in mind specifically those who work under contracts of employment or contracts of service.
Perhaps I should say at this stage that on the previous occasion when we discussed this I think the noble Lord, Lord Jenkins of Putney, referred to an undertaking given by my right honourable friend the Secretary of State for Employment and made some remark about the reliability or worth of such undertakings. I felt it right to inquire into this. So far as I know, my right honourable friend the Secretary of State for Employment has given no undertaking of any kind to Equity. He was not himself able to meet Equity. They did in fact meet my honourable and learned friend the Parliamentary Under-Secretary of State for Employment who sought to explain the position to them. But so far as I understand the matter, no assurance was given in relation to the matters that were then raised.
§ Lord Jenkins of Putney
My Lords, if indeed I have made a statement which was incorrect, I unreservedly withdraw it. However, my strong impression is that Equity have the idea, rightly or wrongly, that some kind of undertaking was given to them. If, however, I am wrong, I withdraw.
§ Lord Mackay of Clashfern
I am much obliged to the noble Lord. All I can do is to state the position as I understand it to be. It may be just as well to clear up the point in case there is any misunderstanding. I am sure it will be in the nature of a misunderstanding and not anything deliberate in the way of misleading people. It is useful that we should take the opportunity to dispose of any misunderstanding which may exist, and I am obliged to the noble Lord for what he has just said.
Following our earlier debate, the noble Lord, Lord Jenkins of Putney, very kindly supplied me with a copy of an Equity standard contract which I undertook to study with Clauses 11 to 13 in mind. This standard contract, under which many actors and performers work, includes many detailed provisions of minimum standards and terms and conditions of work. While many of these are features which would also be found in a contract of employment, it seems likely that for the purposes of the law the contract would be regarded not as a contract of employment but as a contract for services.
After saying that, perhaps I should pause to point out that the noble Lord, Lord Jenkins of Putney, 340 himself kindly wrote at the end of the contract that this, although a contract of employment, is also a contract for the provision of services. I think he recognised that it is hardly possible to be both. Therefore, closing the quotation, he added an exclamation mark. The situation is that many actors wish the benefits of being self-employed for tax purposes. If that is what they seek, then it is not surprising that the contract under which they work is a contract for services and not a contract of service. In taking work in that form they forgo the benefits which accrue to an employee working under a contract of service.
The problem underlying this amendment is therefore that, in some circumstances, actors and actresses work under contracts which are not contracts of employment. This applies to others who the noble Lord, Lord Ardwick, figured in the course of his observations. By choosing to work under contracts for services they are not employees but are in what the law regards as a commercial relationship with theatre managers. This means that they come within, and are affected by, the provisions of Clauses 11 to 13, in the same way as the other self-employed people and small businessmen whom the clauses are designed to protect.
I should emphasise that we do intend to protect people in this category. Because it is impossible to distinguish between the actors' contracts for service and contracts for service under which other small businessmen perform work, it follows that it is impossible to exempt the acting profession, for example, from Clause 11 in the way proposed in the amendment. If we were to accept the noble Lord's amendment, it would exempt from the provisions of the first part of this clause all self-employed people; freelance artists, draughtsmen, building contractors—some of the people who are most in need of the protection against the imposition of union membership requirements which Clause 11 provides. In other words, although the amendment of the noble Lord, Lord Jenkins of Putney, arises principally from his concern about actors and performers, its effects would be very much wider.
I must, however, question the noble Lord's assertion that Clauses 11 to 13 will have a very important effect on employment in the theatre and entertainment industry, or on the agreements which Equity has negotiated with such as the Society of West End Theatre Managers—a copy of which he kindly provided. The Bill is concerned only with the specific problems of union membership and recognition requirements in commercial contracts. It does not invalidate any provision of a collective agreement between a trade union and an employers' body. Nor does it make unlawful other provisions of commercial contracts or contracts for service which do not involve union membership requirements.
I believe it is important to emphasise this last point, because it means that the minimum standards and minimum terms and conditions of employment which Equity has negotiated—many of which are contained in the standard form of contract—can continue to be enforced as before. There is nothing, for example, in Clause 11 to prevent a theatre manager from agreeing with Equity that the theatre will employ only actors who 341 have served their time with a repertory company or have attained an agreed level of proficiency.
There is nothing in Clause 11 to stop other Equity terms and conditions from being imposed through contracts. The fact that Equity has negotiated them does not mean that one has to be an Equity member to be paid a particular rate or to work for so many hours. Indeed, if Equity contracts are used unchanged after the passage of this Bill, the only effect of Clause 11 on the terms of the contract will be to make void the union membership requirement. The other terms and conditions would retain their enforceability under the contract.
To sum up, we understand the concern which underlies this amendment but we would not accept it—even if we thought it desirable to do so—because it would go much wider than the acting profession, or the journalistic examples which the noble Lord, Lord Ardwick, gave, and would deprive many self-employed people of the protection of Clause 11, which in our belief is very much required. I hope that in the light of that explanation, at least the position is clear between us, even if I have not been able to meet fully the position which the noble Lords would desire to attain.
§ Lord Denham
Order! My Lords, if the noble Lord, Lord Ardwick, wants to ask a question, he may say something before my noble friend sits down. But he really must not ask a question at this stage.
§ Lord Jenkins of Putney
My Lords, the noble and learned Lord the Lord Advocate places us in a very difficult situation. He does not in fact say, as I hoped he might, that the Government would see whether they could devise a form of wording which would exclude from the provision persons who, although not contractually and legally in an employer/employee relationship, had a relationship which was nonetheless that of an employer and employee. This clause does not intend to catch people who are in that relationship.
I accept that my own amendment has not succeeded in excluding such persons, because, in wording it to cover as wide a group of people in that area as possible, I may have gone too wide for the Government's convenience. At the same time, it seems to me that the Government have not answered the point that the clause as at present drafted does in fact catch a large and important group of people whom it does not intend to catch. In view of the fact that the noble and learned Lord the Lord Advocate has not been able to say that he will devise a form of words, or even try to devise a form of words, which would have the effect of excluding that group of people, it is my own feeling that we have no alternative but to press this amendment.
§ 11.1 p.m.
§ On Question, Whether the said amendment (No. 36) shall be agreed to?342
§ Their Lordships divided: Contents, 17; Not-Contents, 55.
|DIVISION NO. 5|
|Ardwick, L.||Lovell-Davis, L.|
|Birk, B.||McCarthy, L.|
|Bishopston, L.||Oram, L.|
|Blease, L.||Peart, L.|
|Brooks of Tremorfa, L.||Ponsonby of Shulbrede, L.—[Teller.]|
|Ewart-Biggs, B.||Underhill, L.|
|Jeger, B.||White, B.|
|Jenkins of Putney, L.|
|Llewelyn-Davies of Hastoe, B.—[Teller.]|
|Alexander of Tunis, E.||Long, V.|
|Avon, E.||Lyell, L.|
|Aylestone, L.||Mackay of Clashfern, L.|
|Bellwin, L.||Mackie of Benshie, L.|
|Belstead, L.||Mansfield, E.|
|Boardman, L.||Marley, L.|
|Cathcart, E.||Marshall of Leeds, L.|
|Chelwood, L.||Mersey, V.|
|Cork and Orrery, E.||Mottistone, L.|
|Craigmyle, L.||Mountgarret, V.|
|Cullen of Ashbourne, L.||Renton, L.|
|Davidson, V.||Rochester, L.|
|De La Warr, E.||Romney, E.|
|Denham, L.—[Teller.]||St. John of Bletso, L.|
|Drumalbyn, L.||Sandford, L.|
|Eccles, V.||Sandys, L.—[Teller.]|
|Elles, B.||Seear, B.|
|Elton, L.||Sudeley, L.|
|Evans of Claughton, L.||Thomas of Swynnerton, L.|
|Ferrers, E.||Tordoff, L.|
|Fortescue, E.||Trefgarne, L.|
|Gardner of Parkes, B.||Trenchard, V.|
|Glenarthur, L.||Trumpington, B.|
|Harmar-Nicholls, L.||Vickers, B.|
|Hives, L.||Vivian, L.|
|Holderness, L.||Windlesham, L.|
|Hornsby-Smith, B.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 11.9 p.m.
§ Lord Denham
My Lords, I think that this is probably the time, in what has been rather a long session, at which we should interrupt the proceedings tonight. I therefore beg to move that further consideration on Report be now adjourned.
§ Moved accordingly, and, on Question, Motion agreed to.