HL Deb 14 April 1983 vol 441 cc344-67

6.9 p.m.

Earl Ferrers rose to move, That the draft revised code of practice laid before the House on 2nd March be approved.

The noble Earl said: My Lords, the code of practice which is before your Lordships today is not new. It first came up for consideration in November 1980 and was accompanied by the code of practice on picketing. Both codes were designed to reinforce the measures in the 1980 Employment Act which had recently become law. But today we are only concerned with the code of practice on the closed shop. The law on picketing, which has been established by the 1980 Employment Act, has not been changed by the provisions of the 1982 Act, and the code of practice on this subject is not in need of amendment. Indeed, its provisions have secured widespread acceptance.

Unlike the code of picketing, the revision of the code of practice on the closed shop is necessary for two reasons. First, the code has to be updated in order to take account of the changes to the law on the closed shop which were made by the 1982 Employment Act. As a result of that Act, Section B of the code—which explains the main provisions of the law regarding the closed shop—has been extensively revised. Secondly, the existing code needs revision in the light of the abundant evidence that the closed shop is still causing substantial injustice to individuals.

The closed shop code of practice is essentially a set of guidelines which both employers and trade unions should follow in relation both to new and to existing closed shop agreements. The legal status of the code is set out clearly in paragraph 5. It imposes no legal obligations, and failure to observe it does not of itself make anyone liable to proceedings. But the provisions of the code must be taken into account in proceedings before any court or industrial tribunal where they consider them relevant. That is the code's sole legal effect.

This code reflects not only the views of the Secretary of State but also the views of those who commented to him on its content during the recent consultation period. As a result of those consultations, my right honourable friend made a number of changes to the text which are now incorporated in the code before the House. This makes it all the more regrettable that the TUC did not see fit to make any detailed suggestions on the code to my right honourable friend, unlike some of the non-TUC unions who did comment and whose views he took carefully into account.

I need hardly remind your Lordships that, since the code was originally approved in November 1980, abuses of the closed shop have, I regret to say, continued to occur, and to occur on a scale which could not have been foreseen when the code was originally drafted. The evidence of this abuse is quite clear. Perhaps I could begin with just one example—namely; the stance which was taken by the National Graphical Association on the TUC's so-called "day of action" on 22nd September last year. Your Lordships will recall that the day of action was in support of health service workers who were in dispute over their pay. On that day, all NGA members—and these are members of one of the biggest print unions who, by any stretch of the imagination, had no involvement in the health service dispute—were instructed by their union leadership to withdraw their labour for a complete shift. And this was done without their being consulted on the issue through a secret ballot or in any other way. Many of those who wanted to ignore this instruction were threatened that if they did so they would face expulsion from the union.

Your Lordships will be aware that almost all NGA members work in closed shops, and therefore the threat of expulsion from the union carried with it the almost certain loss of their jobs. Many of those NGA members who wrote to my right honourable friend the Secretary of State told him that they could not risk their own, and their family's, livelihoods by holding out against such pressure. They therefore felt compelled to break their contracts despite their clear wish not to do so.

I have no doubt that your Lordships will agree that this was quite deplorable. Certainly a large number of NGA members themselves seem to have thought so. Apart from letters to the Department of Employment, the November issue of the NGA's own journal itself admitted that letters had poured in on the subject, protesting at the high-handed way in which the union's leadership had acted. One such letter concluded simply: I am ashamed to belong to a union that gets its rather doubtful way by using threats of discipline". That was a member of the NGA writing about his own union to his own union journal. To use the graphic phrase of the noble Lord, Lord McCarthy, there is nothing "hugger-mugger" about that.

It would be some consolation if the NGA was the exception which proved the rule. But unfortunately that is not the case. While they may on this occasion have been the worst offenders, the Department of Employment received well over 50 complaints in relation to the "day of action" from people and groups of people who had been threatened with disciplinary action—and that was, generally, expulsion—if they refused to strike on that day. Since then, many of those who defied those threats have been summoned to union disciplinary proceedings, despite the fact that the strike action on 22nd September was never endorsed by ballot in any of the unions concerned, and despite the fact that this secondary action was itself unlawful.

It has become clear that union leaders are increasingly prepared to use the power of the closed shop in order to force reluctant members to toe the line. I have given some examples of events which surrounded the so-called "day of action". But they are not the only ones. Similar tactics were resorted to, for example, during last summer's disputes on the railways. Despite the fact that neither the NUR nor ASLEF held secret ballots before those strikes were called, many of those who refused to strike have since been disciplined. The NUR alone has sought to discipline some 12,000 of its members—and we have seen how bitterly this action has been resented in the way that several hundred of those disciplined have seized on British Rail's pledge to protect their jobs and have resigned from the NUR.

More recently, similar disciplinary proceedings have been brought by both the Civil and Public Services Association and the Post Office Engineering Union against members who refused to take part in the one-day strike which was called last October against the privatisation of British Telecom. The Department of Employment has also received a significant number of letters from water workers, who complained that they too were forced to strike in the recent dispute, for fear of expulsion if they did not obey the union's strike call.

Noble Lords opposite may, of course, try to argue that very few individuals are in the event actually expelled from their unions and therefore that few in fact lose their jobs for refusing to strike. But that is not the point. It is abundantly clear from the letters which union members write to my right honourable friend the Secretary of State that for every union member who defies a threat of expulsion and refuses to take industrial action, there are dozens who, while not wanting to strike, simply do not feel able to stand up and become marked men. And who can blame them?

But if anyone doubts the scale of the resentment which trade union tactics like these generate, they need look no further than at recent events on British Rail—which, of course, the noble Lord, Lord McCarthy, knows so well. What has happened, quite simply, is that British Rail's pledge to protect the jobs of those who refused to strike last summer has allowed the true scale of resentment to come out into the open. The large-scale resignations from the NUR and ASLEF, the creation of a breakaway union and the welter of protest aginst the disciplinary measures imposed on those who refused to strike—which, in ASLEF's case, amounted to fining non-strikers £10 a day for each day they had worked in defiance of union instructions—all show what happens as soon as the threat of the closed shop is lifted, however slightly it is lifted.

Your Lordships may find it useful if I were to explain briefly how we have strengthened the revised code in order to counter these continuing abuses. Taking first the issue of union members being forced to strike, we have provided more specific protection by strengthening the advice given to trade unions in paragraph 61—paragraph 54 of the old code—on the circumstances in which they should not discipline members who refuse to take part in industrial action.

Two changes have been made. First, the code now makes it clear that disciplinary action should not be taken where there were reasonable grounds for believing that the industrial action was unlawful. This would have been relevant, for instance, to much of what took place on the so-called "day of action". Secondly, the old code had the effect of putting the onus on the individual to say precisely what was his reason for refusing to strike. The new code, by contrast, simply sets out a list of circumstances where unions should not discipline members, irrespective of the reason for the members' refusal to strike. The most important of these circumstances are those where there has been no ballot; where the action is unlawful or in breach of a procedure agreement; or where the action constitutes a serious risk to public safety and health. I find it hard to believe that there will be anyone in your Lordships' House who would want to argue that unions should have carte blanche to discipline members who refuse to take industrial action in those circumstances.

The guidance in paragraph 61 is of course, crucially important in relation to the right not to be unreasonably expelled from a trade union in a closed shop, which is provided by Section 4 of the 1980 Employment Act. As your Lordships know, the Act does not define what is to be regarded as "unreasonable expulsion", but it does make clear that in determining whether or not an expulsion was "unreasonable" a tribunal must take the code into account. What the new provisions will mean is that union members, who complain to industrial tribunals that they have been unreasonably expelled for refusing to take part in industrial action, will almost certainly win their case if there has been no secret ballot, if the action was unlawful, or if any of the other circumstances in paragraph 61 apply. That, I believe, will be a powerful incentive on trade unions not to take such action in the first place.

I should like to say a word on two other matters. The first is something for which we have all been eagerly waiting—except for the noble Lord, Lord McCarthy, who claimed to have had a "preview" of it—but which has now finally arrived. I refer, of course, to the Gennard Report. I am bound to say that it is a pretty hefty tome and I cannot claim—and here I am sure that I must distance myself from the noble Lord, Lord McCarthy, for the first time in this debate!—to be conversant with every word of it. It is a long report, but I am already struck by the balanced and measured way in which the professor has addressed himself to the subject. Looking at what the professor has said, it is far from being the rousing defence of the closed shop, which the noble Lord, Lord McCarthy, was perhaps hoping to read. In particular, Professor Gennard has not shirked—and I think we must thank him for this—from recalling some of the darker episodes to which the closed shop has given rise. One passage struck me in particular, concerning the activities of the former SLADE union, and perhaps I might be allowed to read it to the House. Professor Gennard notes, in chapter 4 of his report, how SLADE attempted to recruit members in 1975 among those who were employed in art studios and advertising agencies. What he says is this: after attempts to persuade employees to join the union, by distributing leaflets and by persuasion, met with little success, the union began the 'blacking' of work from art studios in printing offices, unless the employees in the studios concerned agreed to join the SLADE Art Union. Selective blacking, threats of blacking, and the introduction and operation of the 'Fair List' system resulted in SLADE being able to coerce into membership nearly 10,000 previously non-union members. In the process, it was able to force unwilling firms to concede a post-entry closed shop, without any provision for exemption from membership and against the wishes of the great majority of the employees and, in a large number of cases, against the wishes of every single person in these firms". That is not me. That is Professor Gennard. I do not contend that SLADE's activities were typical. But they do show the power which the closed shop can give to those who are prepared to wield it unmercifully, and which Professor Gennard identified.

The other matter to which I should like to refer is our old friend "hugger-mugger". Your Lordships will recall, from our debates on the 1982 Employment Act, the intense concern of the noble Lord, Lord McCarthy, about the scheme for compensating the victims of the last Government's closed shop legislation. He painted a lurid picture of a slush fund showering money on a handful of bounty-hunters, avaricious martyrs and other colourful figures of his imagination. He complained that the whole procedure was shrouded in mystery and secrecy and was, as he put it, all "hugger-mugger".

I am glad to be able to give your Lordships an up-to-date report on the scheme. So far, a total of 416 applications have been received—a figure which is remarkably close to the Government's own estimate, which was, I might add, based on the research of Professor Gennard and Miss Helen Jackson. Out of this total of 416, 173 applications have already been approved and payments totalling £141,000, and averaging just over £5,000, have already been made. Again, this is in line with our earlier estimate.

I am delighted to be able to give your Lordships these figures—not just to satisfy the curiosity of the noble Lord, Lord McCarthy, but because the number of successful applications under this scheme is the clearest possible indication of the misery and the hardship which the closed shop can cause when it is allowed to operate without any legislative safeguards for the individual. That was the position which was created by the legislation of 1976, which we now know was in breach of the European Convention on Human Rights. And that is a position which should never have been allowed to occur, and which we should not allow to recur.

For our part, we have sought to introduce, first in the 1980 Act, then in the 1982 Act, and now in this code, some basic essential safeguards to prevent such abuses of the closed shop. Trade unions, who operate closed shops which enjoy the support of those whom they cover and which are operated decently and flexibly, have nothing to fear from this code or from the Employment Acts. The Acts and the code together seek only to introduce some minimum, essential safeguards, in order to prevent the kinds of abuse to which Professor Gennard has rightly drawn our attention, and, as such, I am sure that they can only be welcomed by the noble Lord, Lord McCarthy. But they are nonetheless essential, and I believe that this code in particular, by setting out the law on the closed shop clearly and concisely, and by setting out how closed shops should be operated, will be a major advance in protecting the rights of individuals, not against trade unions, but against the abuses which may occur in some trade unions. My Lords, I beg to move.

Moved, That the draft revised code of practice laid before the House on 2nd March be approved.—(Earl Ferrers.)

6.27 p.m.

Lord McCarthy

My Lords, I always hope for the best from the noble Earl and, in the first few moments of what he said, I thought I had got it. He said "That the code of practice be approved". I thought he said "be improved", because there is plenty of room for that. He then went on to say that the picketing code is not in need of amendment. We are not discussing that today, but I cannot agree. It is very much in need of amendment, because the objective of the formal provisions of this code of practice is precisely the same as that of the previous code of practice and the code of practice on picketing.

First, the Government say at the beginning of the code that they want to outline the provisions of the present law. Our argument in 1980, and it is more so today, was that the outline of the law contained in this code is unsatisfactory, tendentious and selective. It leaves out more than it puts in, and in a minute I will tell your Lordships what it leaves out.

Secondly, the code tells us that we are to have practical guidelines concerning the operation of the closed shop and related matters. I want to argue—more so than we have done before—that those guidelines are bigoted, ignorant and disingenuous. But most important of all, this code of practice, like the previous code of practice and like the picketing code of practice, still suffers from the major defect that there is no clear indication where the law ends and advice begins; or perhaps I should say that it is not clear what the Government's ideology dictates outside the law. It is not clear when this code is talking of the law, summarising the law or giving vent to the Government's own prejudices. I want to give some examples of that, too.

This is not because it cannot be done, because, as we have said before, it has been done in previous codes of practice. For example, it is done in the codes of practice of the Health and Safety Commission and, if one is allowed to mention the doings of the previous Conservative Government and to refer to their doings in a way which is not entirely critical, the code of practice for the 1971 Industrial Relations Act was, in this respect at least, clear and above board. It was quite clear in that code of practice where law ended and advice began, so the Government cannot say that it cannot be done.

Therefore, I am afraid that we have to traverse arguments which we have traversed in the past, except that we have one new factor—or perhaps it is not so new as all that. We shall be returning to the contents of the Gennard Report. The noble Earl cannot say that I raised this, because he raised it—except, of course, that I asked him in a letter written this afternoon if he would refer to the summary of the Gennard Report in Industrial Relations Review and Report. The noble Earl has not done that. Therefore, I shall have to return to it.

Let me turn first, therefore, to the law. We made the criticism before, and we make it again, that it is still not clear from this code of practice that to sign a collective agreement on the closed shop is a perfectly lawful activity. Nowhere does it say that a closed shop is not against the law. It is nowhere clear in this code of practice what the limitations are on the remedies which anyone can expect if they bring an action under the terms of the 1980 and 1982 legislation. Only later on in the code of practice are we told the form of those remedies: that they take the form of compensation. We are never told that there is no right to reinstatement, no right to work, no right to return to the job. That is not clear at all in the present code of practice. The way that the code frames these sections in relation to the law is to list a series of rights.

I suggest to the House that any non-lawyer, any reasonable man, any ordinary trade unionist, any ordinary worker reading that list of rights would think that they were pretty clear and pretty unexceptional, that they had ruled out all forms of closed shop and had given him the right to work or the right to reinstatement—which of course they do not do. They merely give the complainant the right to additional compensation. Therefore I say that it is what it leaves out, what it does not say and the way that it talks about rights so as to exaggerate the extent and consequence of those rights that we find tendentious and selective.

It is surely not surprising that this list of rights begins with rights which will not be available until November 1984, except that to get this clear in your mind you have to consult a footnote. So you begin with draconian rights which will be there only when the Government invoke the procedure for validating ballots on existing closed shops. It is not until paragraph 13 on page 6 that we are told of the limited nature of the remedies. Even then we are not told of their financial limits. We are not told the basis on which they will be computed by the tribunals. The whole presentation of this part of the code, I put it to the House, is in fact to present the non-lawyer with a feeling that there is here a series of absolute rights, absolute remedies. And the implication includes even the right to return to work.

There is also in this code of practice virtually nothing about the rights of the would-be trade unionist. Members of the House will remember that at the time when this legislation was going through the House we were told repeatedly that the Government were every bit as concerned with the interests of the would-be non-unionist as with the interests of the would-be trade unionist. You might have expected his rights to be spelled out with something like equal weight in this code of practice. In fact, we have eight pages and 400 lines to describe and exaggerate the protections offered to the non-unionist, while we have one paragraph of eight lines to tell us of the protections given to the would-be trade unionist. We are told that he cannot be unfairly selected on grounds of redundancy, or sacked for union activities. No guidance is given to him at any point on how to enforce those rights.

So much for the ballots, of which we heard so much when this legislation was going through the House. We come to the so-called practical guidance—in particular Section C, which was mentioned by the noble Earl. The first point to make, as I have already said, is that it is not made clear at this point in the code of practice that we are passing beyond law into advice. At this point there should be a caveat, and I invite the Government to insert it. They do not necessarily need to accept my words, but there should be some clearly prescribed statement that we are passing beyond law to advice. I would prefer a caveat which was to the effect: The contents of this section represent the prejudices of the Government. They are based on its conviction that every possible obstacle must be placed in the way of trade unions if its economic objectives of lowering the level of real wages are to have any chance of success. Anybody who does not subscribe to this implausible view of life which is contrary to all empirical studies of the labour market need not proceed any further". I do not suggest that just that kind of caveat should be inserted, but I do suggest to the Government that there ought to be a caveat of some kind. As it is, we are just told: Practical guidance on closed shop agreements and arrangments". Then, in precisely the same tone of voice, the code of practice goes on: Before there is any question of negotiating on proposals for a closed shop, employers and trade unions should take account of the following factors". Precisely the same tone of voice is used here as has been used in the legal provisions. I suggest that that is disingenuous, I suggest that it is misleading and I suggest that it is still not too late for the Government to make this point clear.

So we go on to the advice that is actually given. I am looking at it almost at random. We are told, for example, that you must have overwhelming "support for the practice among workers" before you agree to discuss it—to discuss it, not grant it. We are told that this overwhelming support is not necessarily indicated by ballots alone. You could have a ballot with 80, 85 or 95 per cent. support. It would not necessarily follow that you had overwhelming support. It would not be done by ballots alone. I do not know how else it would be done, but it would not be done by ballots alone. Even if you had all this overwhelming support—not by ballots alone—the implication is that it is best to exclude a wide number of special groups: management, the professions, personnel staff, part-timers and—if you take into account the appendix on the freedom of the press—journalists and editors.

No attempt is made to argue why these particular groups should be outside. No discernible reasons are given. Yet nobody is told, "This is just our belief; this is just our prejudice; this isn't in our legislation". Precisely the same tone of voice is adopted—and so on. We are told that the employer should insist that the closed shop agreement makes provision to exclude action in a wide variety of circumstances: those who refuse to take part in industrial action, those who cross picket lines, those who might be forced into a union against their will. If one is led into a closed shop agreement, with all the legal qualifications that this Government have had inserted as a result of the 1980 and 1982 legislation, and if one says that one must put into a collective agreement a provision which says that the employer cannot sign any agreement which would force into a union any man against his will, one is bound to ask: what is the point of signing a union membership agreement at all?

Of course, the Government do not believe in union membership agreements, only they have not quite got there. But they use this code of practice to mislead people into believing that in fact they have got there. So we read on and we are told: It is essential to subject each agreement to a constant and continuous period of review". One example which justifies a review of the procedure, as far as I can understand the wording, is if there is a trade union merger—it says if the "parties to the agreement change". That would normally happen if there were a trade union merger, or if a firm were taken over by another. Why that should be a reason to subject a closed shop agreement, which had passed all the tests imposed by this Government, to a period of review we do not know. And we are not told. The implication is that it is legal to do so. We are told you could do it at three months' notice, with no reasons given for it by either side. We are told that you could have a review and that you should have a review if it is not working satisfactorily. Who is to decide why it is not working satisfactorily and what justifies a review in those circumstances we are not told.

As I have said, I cannot go into all these prevarications. The list is longer, as the noble Earl suggests, than it was last time. At the time of the 1980 legislation and at the time of the 1980 code of practice, I calculated for the purpose of writing an article about the code of practice that the Government had put in 40 or more obstacles to the signing of a union membership agreement; 10 before the employer should entertain the possibility, 9 to narrow its scope and content, 8 to prolong negotiation, and 11 to interfere with its effective working—and none of these is law, but all of them reflect the prejudices of this Government.

So we come to Section D of the draft code of practice, which is more complicated, and the noble Earl has suggested. Section D is quasi-law. It is in effect the kind of provisions which the Government would expect industrial tribunals to take into account when they decide whether or not people have been reasonably or unreasonably excluded in accordance with equity and the substantial merits of the case. The Government are not really prepared to trust the tribunals to decide what the equity and the substantial merits of the case are; the Government issue them with a list of instructions. I suggest that, taken altogether, those instructions are impossible to include in any rule book introduced by lay organisations.

I will just make two points about those instructions. First, Section D admits the case, all of a sudden, for the pre-entry closed shop—especially the pre-entry closed shop for the acting profession. Noble Lords will remember that we had long debates about this point at Committee and Report stages of the 1982 Bill. We are told that to control entry to the union—which can only be done effectively in a pre-entry closed shop situation—might be justified if the number of applicants had long been so great as to pose a serious threat of undermining negotiating terms and conditions. We are specifically told, for example, that this would be the case in respect of actors. That, of course, is absolutely right and we pressed that point upon noble Lords when the Bill was before the House, in an attempt to do something to safeguard the position of the West End agreements and the acting profession in particular.

We were told that nothing could be done, although the pre-entry closed shop is no more per se unlawful than the post-entry closed shop; that nothing could be done to make it more easy to enforce. And yet here in the draft code of practice, the pre-entry closed shop is singled out in Section B for particular attack. In Section B, we are told that it is a dreadful thing which is particularly unfair and illiberal, and that although we may have to tolerate a conciliatory view towards existing pre-entry closed shops, no one should agree to sign any new ones.

As we sought to argue again and again in this House, in the acting profession new union membership arrangements have to be agreed and negotiated every day of the week. One cannot at one and the same time say that one sees the case for a pre-entry closed shop in the acting profession and then say that no new pre-entry closed shops should be entertained. Yet that is what it does say in the draft code of practice.

Second, in Section C of the draft code of practice, note that the Government—and this came out very clearly in the statements made by the noble Earl—are always against the use of trade union disciplinary functions when they feel that the trade union leaders or executives are encouraging, supporting or instructing people to strike. They must not let them strike in breach of procedure. They must not let them have an unauthorised strike. They must not have strikes without secret ballots. The Government always do this in the context that trade union leaders are assumed to be forcing their members out on strike.

The Government never give as an example of the unjustifiable power of trade unions their efforts to get people back to work and the exerting of their disciplinary functions over those who defy a decision to stop a strike and return to work. Those uses of trade union strength, power and authority are never the instances quoted by the Government; yet I suggest to the Government that—as in everything else—they cannot have the ha'penny and the bun. If they want to rob trade union leaders of their powers over their members and the use of the closed shop in this respect, it will not just be used to not get people out on strike; it will not be used to get people back from strike and to work. It is because most employers believe that that is the main way in which the sanctions of the closed shop are used that they support, on the whole, the closed shop practice.

This brings me to Professor Gennard. The noble Earl, Lord Ferrers—and I must be careful what I say—had the cheek, in a way, to refer to Professor Gennard by reading to me a quotation from his report. So that even now we are not to have the Gennard Report—after all this time.

Earl Ferrers

My Lords, if I may intervene, I cannot quite see why it is a cheek to read from Professor Gennard's Report. I thought that is what the noble Lord, Lord McCarthy, wanted.

Lord McCarthy

If the noble Earl will let me finish, my Lords, I will tell him why it is a cheek. All this time we have not been given Professor Gennard's report, and it seems as though we are not to be given it now—not to be allowed to examine it. It is now to be used against us, because bits of it are to be selected by the Government. They will be those bits that suit the Government, and they will be pretty little bits. Maybe we will have another three years in which all we shall know about the Gennard Report is what the Government are prepared to tell us about it. I think that is a cheek.

Earl Ferrers

My Lords, I thought that when the Employment Bill was going through the noble Lord, Lord McCarthy, said that I was the only person who had not read the Gennard Report; that I and the Secretary of State had not read it, but that he knew all about it. So it is quite extraordinary for the noble Lord now to say that he has not read it.

Lord McCarthy

I did not say that I had not read the report, my Lords; I said that the Government will not publish it. Those of us who know Professor Gennard, those of us who have attended seminars, and those of us who have read Industrial Relations Review and Report, know a very great deal about the report. But it is one thing to know and it is another thing to be able to belabour the report around the Government's ears because they have published it. Even now they have not published it. The Government are quoting those bits of the report they like. I repeat, I think that is a cheek.

What parts has the noble Earl quoted? He has quoted a bit about SLADE. This is very old stuff All this stuff about SLADE was published by a Government inquiry. As a result of that inquiry, the Government introduced Section 18 of the 1980 Act. By no means can this part about SLADE, selectively taken out of Professor Gennard's report, be quoted now to justify the kind of extension of restrictions on union membership agreements which I have been quoting this afternoon from the present code of practice.

To be fair to the noble Earl, he has quoted other examples: the NGA, the NUR, the ASLEF, the CSPA. We do not know whether Professor Gennard refers to these people, but if we are to take what he is reported to have said in Industrial Relations Review and Report for 8th February 1983, which contains a summary of his report running to six pages, Professor Gennard has explanations for these matters and says that they are indeed very exceptional. I have a serious question to ask of the noble Earl. I have given him notice of this question, and I have sent him a copy of the six-page summary in Industrial Relations Review and Report. My question is: now that the noble Earl has seen the Gennard Report, and now that it has been dredged up from the cellars, is the summary of the report which I sent to the noble Earl earlier this afternoon a fair summary? That is my first question. If it is a fair summary, then how on earth do the Government justify this draft code of practice?

Professor Gennard says six things: first of all, that there is no sign of contemporary expansion of the closed shop; it roughly covers the same proportion of union members as it did 20 years ago. According to Industrial Relations Review and Report, and he has it in his summary, there is no evidence of significant abuse of the exclusion power. Almost all exclusions are for persistent lapsing, for falling into arrears. I suggest to the noble Earl that people are kicked out of the Athenaeum for the same crime. Third, impressions to the contrary—including, presumably, those quoted by the noble Earl—are the result of undue publicity given to a small number of cases, very often publicised by such organisations as the Freedom Association and its allies in the press. Investigations by Professor Gennard—for example, of the attempt at mass exclusions by the bakers' union—show that if unions attempt practices of this kind they almost invariably blow up in their face, because you cannot abuse the power of the closed shop in this way. It is not a practical policy, and unions find that to be the case. That is what Professor Gennard says.

He also says that 90 per cent. or more of trade unionists in closed shops were there before the closed shops came and they would be there if the closed shops were taken away. The suggestion that we require a code of practice of this kind to force thousands or millions of our fellow-citizens into trade unions is nonsense. You might just as well suppose that the analogous closed shops in the professions force people into their organisations; that veterinary surgeons are forced into the Royal College of Veterinary Surgeons, that barristers do not want to belong to Inns of Court, that accountants would like to drop out of associations they must belong to if they are to appear before tax authorities. Of course not, nobody suggests it. People belong to these organisations because it is in their interests to do so, and that is why people belong to trade unions.

That is why managements do not resist closed shops on the whole, because they know they have certain benefits, that they help to secure observance of agreements, that they avoid multi-unionism, that in most existing UMAs—this is the final point that comes out in this summary of Gennard—there are similar safeguards for existing members and conscientious objectors and religious objectors to the kind which the Government have put in the legislation, and that we do not require to go further by this kind of inference through a quasi-legal code of practice or guide.

So what I suggest in conclusion is that the world of Gennard, as summarised in this article, on the whole, taking the whole of Gennard, not little bits quoted out of context, is the world of real life, and not the prejudices of the Secretary of State or the assumptions of the Prime Minister's economic advisers. The closed shop emerges from this study as a useful organisational device, for the most part important but marginal in the case of strong well-organised unions, essential only for those facing particular organisational problems—actors, seamen, building workers and so on. Such a view of the closed shop is not in fact compatible with the legislation the Government have introduced, in particular the 1982 Employment Act; it is certainly not compatible with this code of practice. Therefore, we do not at this late stage ask the Government to withdraw this code of practice. We ask them at least to undertake to re-write some of it, in particular to make it clear what the true position of the law is, the true extent of the justifiability of the closed shop and the limitations on the remedies, and most important of all, where the present law ends and the prejudices of the Government begin.

6.55 p.m.

Lord Rochester

My Lords, from these Benches I should like to thank the noble Earl for the way in which he has explained the draft revised code to us. In my view, this is not the time to debate once more the provisions concerning the closed shop which now form part of the 1982 Act. During the passage of that Act we gave the closed shop provisions broad support because we felt that they were reasonable responses to identified abuses of the 1980 Act, and because as Liberals we find the whole concept of the closed shop repugnant in principle and are, therefore, sympathetically disposed towards any workable restrictions of its operation.

However, in order to validate what I wish to say about the code of practice, I should remind the House that during the Second Reading debate on last year's Employment Bill I made it plain that in our view there were a number of difficulties which the Government's proposals could easily produce in practice. One such difficulty might prove to be the percentage of support required in ballots affecting existing closed shops before they could count as being approved. We considered that the figures of 80 per cent. of those entitled to vote or 85 per cent. of those voting were set at levels which were too high, and indeed for that reason we sought, unsuccessfully, in Committee to have them reduced.

Speaking only for myself, I felt obliged to say also that experience in large-scale industry led me to doubt the likely effectiveness of periodic reviews of closed shops, and particularly to doubt whether the Government had drawn a sufficient distinction between the freedom of individuals to decide for themselves whether they wished to remain members of a particular trade union as opposed to any trade union. I retain those doubts, but the fact is that the provisions on the closed shop are now part of the law of the land and the code of practice is to be welcomed, at any rate in its purpose of providing practical guidance on questions arising out of the formulation and operation of closed shop agreements.

In my view, the new parts of the code offer management and unions a useful guide, in explanation and elaboration of the 1982 Act, in drawing attention to the rights of individual employees and in reminding both employers and trade unions of their legal liabilities if an employee's statutory rights are infringed by a closed shop. Indeed, in stressing those individual rights it may be that the code over-simplifies industrial problems that are in reality highly complex. As the Institute of Personnel Management has pointed out, an example of this is that whereas paragraph 37 of the original code states that in the application of closed shop agreements there should be due regard to the interests of the individuals as well as unions and employers, in paragraph 49 of the revised code there is recognition only of the interests of individuals. The problems which may arise from situations in which a number of unions are involved may thus have been given insufficient weight.

I suggest that, whatever, our attitude to the principle of having closed shop agreements, it is desirable that where they exist, or for that matter where they are terminated, they should be operated, or ended as the case may be, in a balanced way in which the legitimate interests of trade unions and employers continue to be safeguarded.

Like the noble Lord, Lord McCarthy, I am frankly disappointed by the paucity of practical guidance which is offered in Section C of the code, because it begs so many questions that are bound to arise in not more than 18 months' time. Let me mention a few instances where no advice is forthcoming as to what should be done. What happens if a trade union declines to co-operate in the holding of a ballot? What if there are demands for further ballots at frequent intervals because a company has been restructured or the minimum levels of support required for the approval of an existing closed shop have only just been exceeded or not been quite reached? If ballots reveal, as I am sure many of them will, that there is not sufficient support for a closed shop for it to be regarded as approved, what should then be done by the employer and by what might well be a number of trade unions which are competing for membership?

In such circumstances might there not be a recommendation that the closed shop agreements be replaced by others giving sole bargaining rights to a union or to a number of unions? Should it be suggested that certain facilities be afforded to unions to enable them to serve their members' interest? Could there be advice that there should be a transition to the practice whereby many well-run companies, before they agreed to the introduction of a closed shop, nevertheless used to encourage their employees to join an appropriate trade union? The company for which I once worked was certainly one. Or is there simply to be a free-for-all, at whatever cost to industrial relations?

It may be that the Government's response will simply be to place responsibility on employers and trade unions to act in all such situations as they think fit. For my part, I question whether in preparation for November 1984, or possibly earlier, that is good enough. The revision of a code of practice such as the one before us offers the Government of the day an opportunity to give a balanced and a constructive lead based on the practice now, or earlier, of companies generally recognised as having good industrial relations. In fairness to the present Government it must be acknowledged that they have not been helped by the failure of trade unions to engage in discussion on these matters. I would go further and say that, in my view, the TUC has been extremely short-sighted in its attitude on this point.

Nevertheless, I hope that the Government will give careful consideration to some of the points that I and, indeed, the noble Lord, Lord McCarthy, have endeavoured to make with a view, perhaps, to producing an amended code of practice before the date of implementation of the closed shop sections of the Employment Act. I am sorry that in its present form I cannot give the code more wholehearted approval than that.

7.5 p.m.

Lord Jenkins of Putney

My Lords, I am most grateful to the noble Lord, Lord Campbell of Alloway, who has been kind enough to allow me to say a word at this point because, unfortunately, I have an appointment from which I cannot escape and for which I am already late. However, I wish to trespass upon the kindness of your Lordships to be allowed to add a postscript to the eloquent demolition job which two noble Lords who have already spoken have done on the draft code of practice.

Whether it will ever be practised is another question altogether, but there is one thing that my noble friend pointed out on which I wish to ask for a little further explanation, if I may. It is this. My noble friend said that the code is not very clear when it is talking about what is legally obligatory and what is a question of an expression of the Government's opinion on what should take place. There is a point at which it appears to me to be seriously contradictory, and I should like the Government to say which of the two paragraphs which appear to me to contradict each other would be regarded as being applicable. It is absolutely vital that people should know what code is being expected of them. The two paragraphs are these. On page 19, under Section D, we see at paragraph 56: When determining whom they might accept into membership the factors to which unions may have regard may include the following". Among other things it then says that they should consider: whether, because of the nature of the work concerned, for example, acting, the number of applicants or potential applicants has long been and is likely to continue to be so great as to pose a serious threat of undermining negotiated terms and conditions of employment". That is the condition, has always been the condition, and is likely to continue to be the condition, not only in the theatre but throughout the whole field of entertainment. In the early part of the present century Sir George Alexander, a notable theatrical impressario of the time, said that the economics of the threatre are founded on the proposition that the actor is normally unemployed. Of course, that is true. Those who wish to employ actors look through books which give guidance as to who is available. All of them are Equity members. In those books the actors (or their agents) describe themselves, and there are pictures of them. The employer looks through these books and the assumption is that the actor is available. It is conceivable, if the actor happens to be Ben Kingsley, that he is not. But generally the actor is available, and if the first actor is not the second will be.

That is the situation, and while the economics of the entertainment industry continue as they are that will continue to be the position. There always will be this pool of unemployed from which the employer picks the person he wants. It might be said with some justification that the economics of Thatcherism are leading to the situation in which the workforce as a whole is normally unemployed. A few years after Sir George Alexander, I believe it was Aneurin Bevan who said that the last refuge of casual labour is inhabited by domestic servants, barristers and actors. That was true at the time. In those days it was the last refuge. But the Government are trying to make everyone casually employed in a pool from which, once again, employers can select. The Government want to restore the kind of situation that was removed from the docks years ago. That is the Government's basic economic intention; so the economics of Thatcherism and the economics of the theatre are somewhat similar.

I now come to my question about which of the points in the code operate. I have just read out one paragraph which says that under certain circumstances a closed shop can operate, and that it is all right for it to continue to do so. But on page 15 we have paragraph 45, which says: Closed shop agreements which require people to belong to a trade union before they can be employed (the pre-entry closed shop) may particularly infringe the freedom of individuals to work. No new agreements of this type should be contemplated and where they currently exist the need for their continuation should be carefully reviewed as soon as possible and regularly thereafter". What is the truth of the situation? Is it paragraph 56—that this is a situation which is recognised as a permanent situation and is allowed to go on—or is it paragraph 45, which says that this is something which ought not to happen and should be brought to an end as soon as possible? I think that clarification on that point is absolutely necessary; otherwise, people will simply not know where they are.

That is the brief case I wish to make. It is symptomatic of some other confusions to which my noble friend eloquently draws attention, but if on this particular point the noble Earl is able to say that 56 is the operative clause, as it were, and 45 is subsidiary to it, I think he will clarify something which will present itself at a later stage and on which anybody who has to interpret what the draft code means may find themselves in very great difficulty. Better still, rather than just having it on the record from the noble Earl, if he would agree to my noble friend's proposal to rewrite the code so as to make these points clear, I think he would do us all a tremendous service.

7.11 p.m

Lord Campbell of Alloway

My Lords, it is understood that the purpose of the code is not really to provide legal advice. How could it? Where does the law end and the advice begin? That is the question raised by the noble Lord, Lord McCarthy. In a sense, with the utmost respect to him, there must be an element of misunderstanding within his question. True, I go along with the noble Lord to this degree: that if practical advice is offered to trade unions—and, as I understand it, that is the purpose of the code—this advice should fairly reflect the impact of the law as interpreted by the courts. But it cannot really do more than that, and it should—and I am sure that my noble friend the Minister acknowledges this—seek to do that objectively, not only bringing into its remit changes in the law but also reflecting consultations. I also very much regret—the noble Lord, Lord Rochester, has referred to this—that the Government were not able to have the advantage of consultation with the trade unions over this, because this does raise certain difficulties to which I propose, if I may, to refer in deference to the position of the trade unions, as I see it.

While generally supporting the Motion, may I advance two suggestions—and two only—with a view to future clarification of these proposals for guidance? These appear at Section C, on page 12, pargraphs 33 to 36, concerning the trade unions. I am not going to address your Lordships on any other aspect of the code on which other noble Lords have already spoken; only on these two narrow issues. The problem arises to some degree out of two decisions of the courts: one in March and the other in April of this year; one of your Lordships' Appellate Committee and another of the Court of Appeal, presided over by the Master of the Rolls. Both decisions have been handed down since this code of practice (which is in effect an offer of practical guidance to the trade unions) was compiled. The respectful submission is that the draft as it stands, which is before your Lordships for your approval, fails to reflect the impact of these decisions and in that respect could to some degree mislead the trade unions.

The first point is this. It arises at common law, and it arises generally with reference to paragraphs 33 to 36. These paragraphs, as your Lordships appreciate, enjoin the unions to recruit voluntarily before seeking a closed shop, to satisfy themselves as to the wishes of their members, to consider whether sole recognition or bargaining rights may not be more satisfactory, and not to start negotiations for a closed shop that excludes other unions with a membership interest without consultation with other unions. Although the code of practice does not say so, here the department is adopting the "Bridlington principles". There cannot be any doubt about that. This it does without naming them. But in the recent decision of your Lordships' Appellate Committee—the case of Cheal—the House of Lords adopted the "Bridlington principles", naming them as such and holding that they in no way breached the common law of public policy and that they were a fair, legal and proper means of preventing inter-union poaching for members. Your Lordships' Appellate Committee further held that there was no breach of Article 11 of the Convention on Human Rights. But they went on expressly to exclude the incidence of their reasoning to a closed shop situation.

Therefore, this exclusion was not fairly reflected, if one looks at paragraphs 33 to 36. The reasoning of the House of Lords adopting the "Bridlington principles" was basically that freedom of association can only be mutual. In this context, as I have said, it was expressly stated that a different situation applied as regards the closed shop.

Then, if your Lordships turn to paragraph 23 of the document, you will see that it states that common law rights are not affected. I am not quite sure what that means. But the problem is that in the case of Cheal—I merely mention this to try to convince your Lordships that I am not really wasting your time—the court of first instance found one way; the Court of Appeal found the other; and then (after publication of this document) the House of Lords went back to the essential reasoning of the court of first instance.

As the impact of the common law has to be fairly reflected, as this code is to be a revision of a previous code which took effect on 17th December 1980, as Annex A, paragraph 23, purports to take in the application of Section 3 of the Act of 1982, and as these recommendations in paragraphs 33 to 36 impinge upon the common law, which has been altered since the publication of the draft, is there not some case, however slight, for revision and a measure of clarification?

The second suggestion is in relation to paragraph 34 in particular. Your Lordships will notice that at the end it says: A union should always consider carefully whether an agreement allowing them sole recognition…might not be…more satisfactory". But within the seed of that suggestion there is a trap for the unwary. The trap was sprung by the recent decision of the Court of Appeal in the case of Carrington, reported on 18th March 1983. It is a simple situation to describe, but not very attractive or satisfactory. The reason for the dismissal of the union members by the employers in that case was that the union was seeking sole recognition. It was held by the Court of Appeal that in those circumstances the provisions of Section 58 of the Act of 1978, now Section 3 of the Act of 1982, did not apply. There was not an "unfair dismissal" under the Act, and there could be no compensation for any of the members. It is a serious and unsatisfactory situation if the unions are urged to give consideration to sole recognition. I should have thought that it would be reasonable to point to the trap that arises if they do. Although the judge held that the dismissal was "indefensible" it was not "unfair" for reasons which will be known to some of your Lordships. In this context, the substituted provisions of Section 58(1)(c) in Section 3 of the 1982 Act have no materiality whatever.

On these two small, limited points is it not right that in due course Section C—the advice to the trade unions—warrants a measure of clarification, and that Section C ought to be set in a truer perspective? One wonders whether, in due course, emphasis could be given to loss of livelihood in relation to the closed shop which takes it out of the general principle of the Cheal case. Perhaps some reference could be made to the problem that an attempt by a trade union to secure recognition may well result in the dismissal of its members, who, in those circumstances, will not be able to claim compensation. Perhaps it might also be possible to express recognition, as the House of Lords has, of the validity and the rectitude of the "Bridlington principles" explaining in so far as is possible—it is possible—the exclusion factor as it affects loss of livelihood related to the closed shop.

I welcome the document. I support the Motion. However, with respect, I join with the noble Lord, Lord Rochester, in suggesting that there is a case, in due course, for an amended code, and that there are matters that warrant clarification. As your Lordships know, I usually find myself not in agreement with the views expressed by the noble Lord, Lord Jenkins of Putney. I did however find that the point he raised was a difficult one requiring further clarification. Perhaps it is my ineptitude. If so, I shall be told in due course. However, it seems to me as a result of your Lordships' debate that there really are matters that warrant further consideration. I respectfully suggest that at some time in due course the formula of the noble Lord, Lord Rochester, might appear acceptable to your Lordships and indeed to my noble friend the Minister. It will perhaps be possible to secure an amended code after consideration has been given by my noble friend the Minister to the points mentioned in your Lordships' House and legal advice has been taken upon them. I am not seeking (how could I from my own Front Bench seek?) any undertaking. I can only express a hope. I do so in the spirit that hope springs eternal, that some day it may receive a favourable response.

7.25 p.m.

Lord Howie of Troon

My Lords, I do not wish to raise again the arguments that were deployed during the passage of the 1982 Act. The noble Lord, Lord Rochester, from the Liberal Front Bench mentioned some of these arguments in passing. However, I do not believe that I should allow some of the comments of my noble friend Lord McCarthy to pass entirely unremarked. I should like to say first something that I hope will please my noble friend. I believe that the general tone of the code of practice is unduly hostile towards trade unions and trade unionism. I am fairly sure that it is not intended to be so. However, on my reading of it, it is more hostile than it should be.

My noble friend drew an unfortunate parallel between trade unions and the professions and seemed to imply that the professions themselves were closed shops. This is not so. It may be that some professions are closed shops but the great majority of them are not. His parallel was interesting but not sufficiently precise for the purposes of this discussion. I should like to remind the House of one particular matter. In a book, which my noble friend will remember, "The Acquisitive Society", by R. H. Tawney, the noted social philosopher, published in 1923 or thereabouts, Tawney suggested that the model of the professional institution was the model that trade unions should adopt in their development. I thought that Tawney was right, and still think so. Had the trade unions adopted the model of the professional institution, many of the problems of industrial relations experienced in recent years might have been avoided. However, matters did not quite work out like that.

There is one matter arising from this discussion of professionalism to which I should like to draw attention. During the debate on the 1982 Act and also during the debate on the 1980 Act it was recognised, to a greater or lesser degree, I think, that there was a real dilemma between the obligations that a member of a profession owed to his professional institution and the obligations that he owed to a trade union of which he might be a member. Eventually the 1982 Act recognised that dilemma. The code of practice recognises it once again. For that, those of us who have considerable sympathy for professional men are grateful. We are thankful to the Government for that, despite the general hostility towards trade unionism of the code of practice.

I am not sure that legislation by code of practice is a good idea. A similar situation arose during discussion of the Water Bill two days ago relating to legislation by guidelines. There is kind of quasi-law—a code of practice, guidelines, criteria or guidance—that is not actually law but has to be taken into account by those who administer the law. It is not binding but it has to be thought about. I do not think that it is a proper way in which to conduct our affairs. If the Government wish something to be legal or illegal they should decide that something should be legal or illegal and they should phrase their law to ensure that something is legal or illegal. I suggest that it is not good enough to say that something should be taken into account and should be embodied in a code of practice or a body of guidelines. I seriously think that this is a practice which is increasing and it ought to be stopped.

7.31 p.m.

Earl Ferrers

My Lords, we have certainly had an interesting debate on this code of practice and I am very grateful to noble Lords for what they have said. I always enjoy listening to the noble Lord, Lord Howie of Troon, when he speaks on these matters. I could not help but recall his plea to his Front Bench on the Second Reading of the Employment Bill when he begged that they would not ask him to vote against the Employment Bill but only to do so when it was wrong! I value, as I am sure we all do, his independence of mind. That does not mean to say that there is necessarily any conflict of view, but we enjoy his independence of view.

I always enjoy, too, the speeches of the noble Lord, Lord McCarthy, and this evening was no exception. He is always so enthusiastic in his views. He said that when he first heard me speak he thought that he was going to agree with me because I had asked that the code of practice should be approved and he thought that I was going to say that it should be improved. We were in agreement because the code of practice which is before your Lordships is an improvement on the last one. Having said that, he of course then used quite the most extraordinary holocaust of adjectives. He said that it was unsatisfactory, tendentious, selective, bigoted, ignorant and disingenuous. That is quite a quiver full of adjectives to let forth about a modest code of practice and I am bound to say that I wondered why he felt that way. But, as I explained in my opening speech, this is not a code of practice aimed against trade unions: it is a code of practice aimed against some of the abuses by some of the trade unions which have occurred and which his friend Professor Gennard himself had identified. Then I realised what the real problem of the noble Lord, Lord McCarthy, was. Possibly he finds it somewhat difficult, if I may say so with the greatest respect, in reading, and perhaps it was in reading the drafts of Professor Gennard that the noble Lord got himself into a tangle. I suggest this because the noble Lord said to me—and he is always very courteous—that he had sent me a copy of the IRR review and had asked me to refer to it. That surprised me because I did not wish to be discourteous to the noble Lord and I looked at what the noble Lord had written in his letter. Perhaps he had forgotten what he wrote or perhaps he did not read what he wrote, because what he actually said, and I know he will not mind me quoting it, was this: I thought I should let you know that I intend to refer to the piece in the IRR review". He did not ask me to refer to it. I did not want to steal the noble Lord's thunder by referring to it in advance of him. Had I done so I would really have explained his problem. The noble Lord, Lord McCarthy, said that I had referred to Professor Gennard with cheek. As the noble Lord, Lord McCarthy, had done nothing but constantly refer to Professor Gennard nine months ago, I did not find it at all cheeky to refer to him. If we were at school I should say that the noble Lord was a naughty boy, but as we are not at school I will not say that; I will say that the noble Lord was misguided.

What happened was that the review to which the noble Lord referred and of which he very kindly sent me a copy was a review which was printed on 8th February, It did not, therefore, take into account Professor Gennard's final report, because the report had not been made public then. The report was received by the Department of Employment not on 8th February but on 17th March. The noble Lord, Lord McCarthy, asked why we had not seen this report and he said how terrible it was that it had all been kept under covers and no one had seen it. I do not know what the noble Lord, Lord McCarthy, has been doing. I suppose he has been on holiday all during the Easter Recess and before as well. The report was received in the department of Thursday, 17th March, and it was placed in the Library on Monday, 21st March. It is now 14th April. So, with the greatest respect, the noble Lord has had plenty of time to read the report, and I thought that he would have read it from cover to cover, even if it was only the draft report. Anyhow, he has plenty of opportunity now to read the full report.

Lord McCarthy

My Lords, would the noble Earl agree that the summary in IRR is a reasonably accurate summary and, therefore, does not support the code of practice?

Earl Ferrers

My Lords, if the noble Lord will be good enough to contain himself a little longer he will hear me say that, no, I do not entirely agree that that is so. But I must continue with this very vexed point about which the noble Lord, Lord McCarthy, was so concerned. The report has been in the Library and it is available to noble Lords. My right honourable friend the Secretary of State has, therefore, satisfied the obligation and he has made this matter public. The noble Lord, Lord McCarthy, asked when it was going to be published. The question of its publication is a matter for Professor Gennard: I understand that he intends to do so later this year and such publication will have the Government's full support.

But the noble Lord asked whether this is a true record of Professor Gennard's report. I am bound to tell him that of course it is a record which was obviously made before the publication, presumably as a result of a draft, and it does not in fact concur entirely with what Professor Gennard said. For example, I can tell the noble Lord that in chapter 7 the report says: This survey showed that over the period 1970–81 the total number of people who lost their job as a result of the operation of the closed shop numbered at least 490. This may understate the total number of such dismissals". Again, at page 295 it says: Certainly [the mangers] when asked directly whether they thought the closed shop reduced the number of unofficial strikes or the number of breaches of procedure, none was prepared to say yes". Again, in chapter 7 of the report Professor Gennard says that up to a quarter of a million people were coerced into joining trade unions simply because of the closed shop. The report also highlights prominent instances of abuse of the closed shop—for instance, I refer to SLADE's recruitment tactics in the late 1970s. Those are figures and facts which have come out as a result of this report. While it would not be correct for me to go into individual items of what was published, all I will tell the noble Lord is that that publication was before the final report was made public.

The noble Lord, Lord Rochester, said that, like the noble Lord, Lord McCarthy, he was disappointed at the paucity of the guidelines. But I thought that the noble Lord, Lord McCarthy, was complaining that in fact the guidelines were too many and too strong. Had the guidelines been fuller, and had they been more precise, then I have no doubt that the noble Lord, Lord McCarthy, would have found even more to complain about.

The noble Lord, Lord Howie of Troon, referred to the fact that legislation by codes of practice was not a desirable way of legislating. There is nothing new in that. I see the reason why, but we have the Highway Code, which is a typical example and there are plenty of others. Indeed, there are many other occasions, such as those when the Government of the noble Lord, Lord McCarthy, produced the codes on time off for trade union activities, disclosure of information, and disciplinary procedures. All these were set out in the law, and then were given as guidance to tribunals.

It is important because the noble Lords, Lord McCarthy and Lord Jenkins, asked: where does the advice end and where does the law begin? I merely direct the noble Lord, Lord McCarthy, to paragraph 4 of Section A. In paragraph 4 it says quite clearly: Section B of the Code outlines the provisions of the law on the closed shop as it now stands…Sections C, D and E provide practical guidance concerning the operation of closed shops and related matters". That is perfectly clear. The first part—Section B—says what the law is as it now stands, and Sections C, D and E give guidance. It is perfectly right that we should give guidance. The noble Lord will know that just as with the Highway Code, the code of guidance carries no legal effect. It advises people on how they ought to conduct themselves. If they do not wish to conduct themselves in that way, there is no legal compulsion on them—unless somebody goes to a court of law, and then the fact that the code of practice has not been used will, of course, count against them.

Lord McCarthy

My Lords, the difference is quite simple and I find it difficult to believe that the noble Earl does not follow what I mean by it. The fact is that this practical guidance is, as I said, written with precisely the same tone of voice as the sections on the law. It is not made clear in Section C itself that it is simply advisory and, unlike the Highway Code, it goes very considerably further in the legal position in putting restrictions on the operation of the closed shop. That is the difference.

Earl Ferrers

My Lords, I do not quite know how to get through to the noble Lord, Lord McCarthy, because it is only advice. The code of practice is only advice on how trade unions ought to conduct themselves. If they do not wish to conduct themselves in that way, that is fine—unless of course they get taken to a court of law, when the fact that they have not conducted themselves according to the guidelines will be taken into account.

The noble Lord, Lord McCarthy, said that we ought to introduce a paragraph which says that this represents the prejudices of the Government and those who do not agree need read no further. That was a charming intervention, but when the code of practice states what the law is at the moment, that is not the prejudices of the Government. When the code of practice is produced, that is not the prejudices of the Government. The code of practice is the Secretary of State's views, modified by those trades unions which have given their views. The noble Lord, Lord McCarthy, knows full well that the Trades Union Congress did not give any views; they did not take part in the consultation. I agree with the noble Lord, Lord Rochester; I think that they were wrong not to do so. It is not very impressive when, having not done so, the noble Lord, Lord McCarthy, comes up and complains that it is all wrong. If it is wrong, then they have had plenty of time in which to make their representations.

Lord Howie of Troon

My Lords, there are one or two passages, not in the explanatory part of the code of practice but in the later part, where the Government say that trade unions ought to do this, that or the other. It may well be that the Government's opinion is entirely correct and that unions ought to behave as the Government desire. But there is little point in putting that in a code of practice. It is, as my noble friend rightly says, no more than a matter of opinion. If the Government really desire that unions should behave in that way, it should be in the law and not in what is, after all, very little more than the kind of opinion that we might get and enjoy from the Government Front Bench.

Earl Ferrers

My Lords, that is a perfectly reasonable argument, but the reason it is not in the law is in order to try to make the law as flexible as possible. This is not compelling unions to do it; it is only advising them. The noble Lord, Lord Howie of Troon, wishes to go a great deal further, and it is interesting that he does, but that is not in the law for that very reason.

My noble friend Lord Campbell referred to two cases and he was concerned about the effects that these will have. I shall certainly take account of what he has said. I listened carefully to what he said and I shall draw his remarks to the attention of those responsible in the Department of Employment. But I think I can reassure him by saying that the department has, in fact, already considered the implications of both these cases, and its firm conclusion is that there is no conflict between the judgments in either case and the guidance in paragraphs 33 to 37 of the revised code of practice.

The noble Lord, Lord Jenkins, referred to Equity and the noble Lord, Lord McCarthy, I think also referred to the same paragraphs. I believe that the noble Lord, Lord Jenkins, was referring to a conflict between paragraphs 45 and 56. Possibly he was confusing two different issues. Paragraph 56 is concerned with general advice to trade unions and their treatment of applications for membership. The relevant statutory provision to which this advice relates is Section 4 of the Employment Act 1980—the right of individuals not to be unreasonably excluded from trade unions. Paragraph 45 relates to a different issue, which is the pre-entry closed shop, and in advising that no new pre-entry closed shop should be considered, paragraph 45 does not directly threaten Equity's closed shop which, as the noble Lord, Lord Jenkins, made clear, is of very long standing.

There were a number of individual points which the noble Lord, Lord McCarthy, mentioned, but I do not think that it would be appropriate for me to answer them all now, other than to say that I hope he did not think that my speech was bigoted; I hoped that he would not think that this code of practice is bigoted. It is not. It is a gentle, clear guidance as to how trade unions ought to be able to conduct themselves. As I said in my opening speech, and I repeat it now, there is nothing in this which those trade unions who behave reasonably and properly need fear. The only purpose of this code of practice is to prevent the abuses which everyone has seen and about which everyone knows. In the quieter recesses of the mind of the noble Lord, Lord McCarthy, I know perfectly well that he would agree that that is not unreasonable. I hope that your Lordships will approve the code.

On Question, Motion agreed to.