§ 4.27 p.m.
§ Consideration of amendments on Third Reading resumed.
Lord Wedderburn of Charlton moved Amendment No. 4:
Page 5, line 22, after ("section") insert ("or under section 1 above").
§ The noble Lord said: My Lords, my noble friends and I have put down an amendment which in one sense is fundamental but which we hope the Government might see fit, even at this late stage, to accept in principle. The problem which is addressed is the question: to which bodies does Part I of the Bill apply? The difficulty is created by the fact that the legal definition of a trade union, which is now in Section 28 1504 of the 1974 Act but which is not fundamentally different from that which preceded it, can bring within its scope not only a trade union in the ordinary lay sense but also a section or branch which is within that trade union. That is, a branch or a section which negotiates with employers may in law be a separate trade union.
§ In Committee we gave dozens of examples of such groups within unions which, at the very least, may themselves be separate trade unions. The question we raised was whether all those sections or branches or groups will be obliged under Part I of the Bill when it comes into force to hold separate postal ballots, even though the national union, if I may call it that, has fulfilled its obligations to elect its principal executive committee in the way Part I demands.
§ The Government, in their new clause, which is now Clause 4 of the Bill, acknowledge that there is such a problem. At least, they acknowledge it to a limited extent, because subsection (3) of the clause deals with a branch which itself is a trade union and discharges the branch from keeping a register to the extent to which the national union has fulfilled its obligation to keep what we learned earlier today is the one central register in the one place on day one when the Act is passed.
§ It is, in our submission, up to the Government to do one of two things: either they should accept this amendment or reveal the information or estimate, which they surely must have. In accepting the amendment, they would accept an extension of their own principle but within their own terms in the new clause. That is to say, the Government say: where a branch is a separate union in law, it need not keep its own register if the national union is doing its job properly with its register. That is very sensible. We say: by an extension of the same logic, where the branch is a separate union—and we here deal only with branches and not sections, as we did in Committee (we keep to the Government's own words)—surely it should be discharged from its obligation to keep a register, as the Government wish, and also to hold separate elections under the very special procedures of Part I including the extension under which the national union is discharging its duties.
§ Now that we are clear from the noble Earl that "keeping a register" means keeping one central national register, it would be little less than astonishing if a branch was compelled by law under Part I to hold a postal ballot for its principal branch executive committee when we are now quite clear that there is no obligation upon it to keep a register of members at all. The Government's own logic we suggest therefore leads to our amendment or something like it.
§ These clauses were put together quickly over the past few weeks and it may be that only now the logic of them can be revealed. We put the amendment forward in a practical sense and ask whether or not this would be a common-sense way of dealing with the matter. If, however, the Government are minded to reject this amendment, or further consideration of it, this Bill still has to go to another place, it really would be time then for the Government to tell the public something which it has never told it before. If the Government reject this approach then it is time to tell the public, the trade union movement and the 1505 employers—because they have a big interest in this matter—how many branches and sections within the 442 unions (or perhaps the 98 TUC unions, at least) it would estimate will need to have separate elections under Part I. We want to know the figure; we want to know an estimate. The Government have had 10 months in which to do the job and I am sure they have had the best possible advice upon the matter. If the Government are minded to reject the amendment, it really will not do for them not to state quite clearly that hundreds or possibly thousands of branches will be obliged to observe the procedures under Clause 1.
§ I hope that it will not be necessary for the Government to have to make that estimate because I very much hope that the noble Earl the Minister will be able to say something reassuring. It is, after all, a structural amendment within the logic of the Government's own Bill. It in no way contravenes the logic of the Government's Bill, and in that spirit I beg to move the amendment.
The Earl of Gowrie
My Lords, with this amendment we return once again to the question of whether Part I of the Bill should apply to all trade unions save for certain federations, which is the position as the Bill is drafted, or only to certain trade unions. In particular, the amendment now before us would exempt from the whole of Part I of the Bill trade union branches which meet the statutory definition of a trade union.
Towards the end of our debate on a similar amendment at Report stage the noble Lord, Lord Wedderburn, asked me to "sleep on this issue with a turbulent mind". I have to say that I have in the past received more enticing invitations; but nevertheless I can tell him that we have given a good deal of further thought since that debate to the questions that he raised. We have looked once again at whether—to put it bluntly—we have got it right as the Bill stands. Our conclusion, for reasons which I shall set out more fully in a moment, is that we have got it right.
The first thing to stress to the House in considering the noble Lord's amendment is that the Bill is grounded in this respect on one very simple proposition. Part I applies to any organisation which falls within the statutory definition of a trade union, save only for certain trade union federations. Part I does not apply to organisations which do not fall within that statutory definition. So the first question which it is necessary to address in considering this amendment is whether, without it, all manner of trade union branches would be within the scope of Part I of the Bill.
That is the scenario which the noble Lord, Lord Wedderburn, put before us at Report stage on 12 July. At col. 1123 of Hansard he said that the obligations of this Bill,should not be put upon branches up and down the land unless the wish is to kill the trade union movement in a flood of paper".With the greatest respect to the noble Lord, I have to say that his view appears on this occasion to be based on a false premise. The fact of the matter is that the typical trade union branch simply does not fall within the statutory definition of a trade union and is therefore entirely unaffected by Part I of the Bill.
That is borne out of course in the definition of a trade union in Section 28 of the Trade Union and 1506 Labour Relations Act, 1974. Among other things, that definition makes clear that in order to meet the statutory definition of a trade union, an organisation must have, among its principal purposes, the regulation of relations between its members and their employer or employers. Quite clearly that is not normally among the principal purposes of a trade union branch. Union branches generally exist as a channel of organisation and communication between the individual member and the union hierarchy. It will be very rare indeed for their purposes, let alone their principal purposes, to include the regulation of relations with employers, and that is why they do not meet the definition of a trade union.
If further evidence of that is needed, it is of course provided by the fact that where Parliament has specifically wanted its legislation to extend to union branches, it has been obliged to say so. There are a number of examples of this but it may be most helpful if I point the noble Lord, Lord Wedderburn, to legislation with which he is closely acquainted since it was introduced by his own party. If he looks for example at Section 53 of the Employment Protection Act 1975—subsequently consolidated in Section 23 of the 1978 Act—he will find that it states explicitly that in that section:references to a trade union include references to a branch or section of a trade union".Now of course if the definition of a trade union ordinarily covered branches or sections of a union there would have been absolutely no need for that provision.
I think it is beyond argument that the great majority of trade union branches are not affected by Part I of this Bill and that that is the answer to any union which is in doubt about whether Part I applies to all of its branches individually.
Having said that, I of course accept that there will be a very few union branches which meet the statutory definition of a trade union. To those very few branches, Part I of the Bill will apply. I make no apology for that because these branches are by definition in the business of representing their members in negotiations with employers. The Bill will simply ensure that the leaders of any branches in this position are genuinely representative of their membership. But let me stress again that such branches will be a very small minority indeed of the total.
Finally, the noble Lord asks me why we should grant a measure of relief to branches in relation to the requirement to compile a register but not in relation to the rest of Part I. With the greatest respect to him I should have thought the answer was obvious. There is no point in requiring both a union and a branch of a union—again in those rare cases where it happens to be a trade union in its own right—to have to record the same names and addresses on two separate registers. So long as the main union has a register, that register will be available for use by the branch in relation to the members of the branch. By contrast, if we were to relieve a branch of the requirement to comply with Part I simply because the union of which it was part was doing so, we would not be avoiding duplication; rather we would be removing the right of the members 1507 of the branch to elect their own executive committee by the basic democratic principles under the Bill.
I hope it is now clear why we cannot accept this amendment. To the extent that it is designed to remove branches from the Bill, it is almost totally unnecessary since the great majority of union branches are not trade unions within the statutory definition and are thus unaffected by the Bill. But where a branch or a section is a trade union within the statutory definition and is thus in the business of negotiating with employers on behalf of its members, we believe it entirely right that it should be covered by Part I of the Bill.
§ Lord Wedderburn of Charlton
My Lords, we should not take too long with this amendment, but the noble Earl's reply requires that I say something about it. Of course the Bill applies at the moment to all trade unions within the statutory definition. In saying that the Act, as it will be, might apply to all manner of branches up and down the land, I apprehend that I disagree with what the noble Earl said in one important respect; namely, that I think he said it is only a very small minority of branches. Since this is a very difficult matter of law, I would prefer to couch our disagreement in terms of what might be within the definition of trade unions.
It is a highly difficult matter of law, and it is highly arguable that there are all manner of branches up and down the land which, in law, are trade unions within the present definition. I say that for this reason—and I wish to make this quite clear. Time and again we get from the Government statements that are based upon a totally inadequate assessment of the situation on the ground in trade unions. It is just not true that in a large number of unions branches fulfil only the function of what I think the noble Earl called channels of organisation or channels of communication. Certainly they do both; but in unions which have workplace-based branches you frequently find—indeed, one might say that in most of them you ordinarily find—some negotiation through the branch which can fall within the definition.
I do not know when the noble Earl last read the case of Cope v. Crossingham in 1909, but it is about the only discussion that there is. He knows, as I do—one may be a lawyer and the other not, but neither of us is a judge—that both of us stand in terror of what might be the proper interpretation. It is perfectly possible that hundreds of branches of unions like the General and Municipal Workers' Union are within the definition. I wonder whether the noble Earl has thought through the position inside the National Union of Mineworkers—I do not mean the area unions, of course—or the Civil Service unions, or the unions in textiles or iron and steel. Has he really obtained advice that all the branches in those areas are not likely, or are very likely, or, at least, are probably, trade unions within the definition? I suspect that he has not.
Of course, it is true that in some unions—the unions he is no doubt thinking of—they do not negotiate through branches, but there are many places where they do. As for his citation of Section 53 of the Employment Protection Act 1975, which he correctly 1508 says is Section 23 of the Consolidation Act 1978, that is nothing to do with the point whatever. Branches are included within trade unions there, whether or not the branch is a trade union. We are not dealing with that problem. We are dealing with the problem where a branch is, or is likely to be, a trade union within the law. That brings branches in whether or not they are trade unions. It is quite a different issue.
If the noble Earl wants a precedent he should look at Section 5(2) of the Trade Disputes Act 1906—as, I suspect, did the draftsman of this Clause 4(3)—where he will see the statute dealing with branches which are within the definition of trade unions. It is a known problem. It appears in 19th century legislation. It is not a problem of very small minorities. The extent of the problem I know not—though the likelihood is that it is large, I suggest—but that it is material and substantial not merely to the trade union movement but to the operation of industrial relations in this country, I am confident about.
The Government have put their reputation on the line with a statement that it does not matter that any branch that happens to be called a trade union in the court comes within Part I, because it is a small problem. As a matter of fact that would not cure the problem anyway, because it is unjust. Where is the justice? I thought the Government cared about individuals. I see the noble Earl wishes to intervene, but I shall finish the point as the noble Earl has done on previous occasions. Even if there is only one branch in this land which is obliged to hold a postal ballot without a branch register and without a legal obligation to have a branch register—it is obligations that we are talking about—then I say that that is not wholly fair and it is not just. The noble Earl says that there are very few, and I say that that is wrong. I want to know how many; and no doubt by the time the Bill gets to another place we shall be given a better estimate than "a very small minority".
I hope that my right honourable and honourable friends will press the point on the Government, because it is a fact that, as Part I is drawn, there is likely to be a large number of branches which, at the very least, are uncertain about their status in which the member who wishes to harass the branch, if he is on bad terms with it, can with some justification mount at least a very arguable case in the court. What sort of basis is that upon which to put a Bill like this into operation? However, we have no alternative in this House but to beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.