Lords Sitting of 19 June 1984

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers — Read by the Lord Bishop of Norwich
Lord Kinross—Took the Oath.

Youth Training Scheme
Lord Hunt: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are still satisfied with the operation of the Youth Training Scheme in view of withdrawal of support by certain trade unions.
The Minister of State, Privy Council Office, and Minister for the Arts (The Earl of Gowrie):My Lords, I am pleased to report that about 350,000 young people entered the Youth Training Scheme in 1983-84. The resistance to the scheme by some trade unions, mostly at a local level, has clearly not diminished the interest of young people in entering the scheme, nor has it prevented its successful operation.
Lord Hunt: My Lords, I thank the noble Earl for that Answer, which sounds encouraging, but is it not a fact that the non-co-operation of certain unions locally, at branch level, must be having an adverse effect on the development and continuation of the scheme in its second year? Is this not a serious matter, at any rate for the young people who are denied those opportunities? Could he therefore tell the House to what extent the loss of more than 9,000 places between the end of March and the end of April is attributable to the withdrawal of union support? And how many places are likely to be lost following the decision of the Union of Communications Workers to instruct its executive to withdraw support from the scheme?
The Earl of Gowrie: My Lords, I am wholly in agreement with the noble Lord, Lord Hunt, if I understand his inference aright, that it would be a very great pity —indeed, a tragedy—if political considerations usually connected with issues which have nothing whatsoever to do with youth training stopped unions from helping, as we all must help, young people who through no fault of their own are caught up in a great crisis in the jobs market. As to the specific point he made, my advice is that so far the scheme has not been adversely affected; but in relation to the Union of Communications Workers—the Post Office workers, as we think of them—they did pass a resolution at a recent annual conference instructing their executive to withdraw from the scheme. It is too early to say how this resolution will in practice affect the scheme, and initially, of course, that will be a matter of negotiation between the union and the
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management at the Post Office. I appeal to all those involved not to let external considerations interfere with the need for the whole community to help the young.
Lord McCarthy: My Lords, would the noble Earl not think that this has come about as a result, not just of political considerations but of economic considerations, and the fact that certain members of the UCW might think that the Youth Training Scheme has become a cheap labour scheme? In this connection, would it not be better if the Government were to support the efforts of the TUC and, for example, raise the £25 limit, which has been exactly the same since 1982?
The Earl of Gowrie: My Lords, I think I have seldom heard, even from the Dispatch Box opposite, two more contradictory statements. The whole point of the £25 allowance is that it is an allowance, and not wages. If it were wages, there might be some justification for the line that the noble Lord was taking about cheap labour. In fact, it is not a cheap labour scheme; it is a training scheme, and should be treated accordingly.
Lord Kilmarnock: My Lords, is it not the case that the figure of 350,000, which I think the noble Earl gave, was in fact the throughput over a whole year, whereas the number of young people actually in place on training schemes was something in the region of 250,000 according to the Manpower Services Commission's latest quarterly labour review? Would the noble Earl like to comment on that?
The Earl of Gowrie: My Lords, I think I would have to have notice of that question. My advice is that 350,000 young people entered the training scheme in 1983ߝ84, which is what I was asked.
Lord Kilmarnock: My Lords, if the noble Earl will forgive me, the word he used is "entered". Some of them obviously left, too. Will he look at the MSC's latest quarterly labour review, in which I think he will find a figure which approximates to the one I have given?
The Earl of Gowrie: My Lords, I will indeed look at it, but I am also advised by the MSC that there has been an encouraging take-up into real employment of those leaving the scheme, and in some areas the employment prospects for young people have, I am glad to say, improved considerably.
Lord Blyton: My Lords, will the noble Earl say how he expects to get the co-operation of trade unions in any scheme that the Government bring forward when we have had six years of trade union "bashing" from the Conservative Party on the Front Bench?
The Earl of Gowrie: My Lords, the noble Lord is, I fear, living in a dream world. There has been no trade union "bashing", and there will be none.
Lord McCarthy: My Lords, will the noble Earl not agree, however, that even a training scheme allowance deserves to be updated for inflation? Therefore, why

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will he not answer my suggestion that it should now be £31 and not £25?
The Earl of Gowrie: My Lords, the level of the allowance has had no deterrent effect on young people entering the scheme. They are entering the scheme for training, not for wages.
Lord Rochester: My Lords, in view of the severity of the problem of unemployment among young people, can the noble Earl assure us that the Government will give sympathetic consideration to any recommendation that may come from the Manpower Services Commission to extend the eligibility for entry into the Youth Training Scheme to more young people aged 17?
The Earl of Gowrie: My Lords, I can say to the noble Lord that if a young person aged 17 is unemployed and if places are available, he or she will become eligible for a place on the scheme, and that we do have 17 year-olds on it. In respect of the future and eligibility as of right, so to say, that is under review at present.
Lord McCluskey: My Lords, can the noble Earl tell the House whether the allowances for Members attending this House have been raised since 1982? If so, can he explain why the Government should not raise the allowances for these youth by the same proportion?
The Earl of Gowrie: My Lords, that is a wholly different issue. I suggest that the noble and learned Lord puts down a Question on the allowances, when it will be answered by the appropriate department.
Lord Diamond: My Lords, would the noble Earl be kind enough to remind the House of the reasons which prompted the Government to suggest such a living allowance on the purchasing power of £25 at the time it was first determined? Could he also say what are the reasons why they now believe that the purchasing power of a smaller allowance is appropriate?
The Earl of Gowrie: My Lords, as the noble Lord, with his financial background, will be well aware, the Government are moving most of their budgeting into cash terms, and that is one of the many reasons why the Government have been successful in improving the rate of inflation.
Lord Hunt: My Lords, reverting to my earlier supplementary question, in view of the fact that the TUC pledged its full support for the scheme at its inception, and accepting my figure of about 2,500 places which may be lost following the decision of the Union of Communications Workers, would the Government consider using their good offices with the TUC in order to persuade that trade union and any other union in a similar position to reverse their attitude in view of the adverse effect on the training of young people, which is so badly needed for this country's potential economic performance?
The Earl of Gowrie: My Lords, it is no secret, I think, that there are many items of disagreement
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between the TUC and the Government. The point I was trying to make, very much in support of what the noble Lord had said, is that these disagreements have nothing to do with the issue of training for young people. In general, the unions have been supportive. I very much deplore those who have not, but I hope that they, too, will follow the general TUC line.

Cervical Screening
2.46 p.m.
Baroness Vickers: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government, in view of the increased numbers of women waiting to have cervical cancer tests, which could save their lives, what action is being taken by general practitioners and community health councils to continue to make tests available to women, and to provide for the necessary treatment.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur): My Lords, health authorities are responsible for providing the now well-established cervical screening service. I am not aware of any waiting lists for cervical smear tests. General medical practitioners and doctors in ante-natal, family planning and certain other clinics take routine cervical smears as part of normal medical care.
Baroness Vickers: My Lords, while thanking the noble Minister for that reply, may I ask whether he can say what the Government's present policy in regard to this is, and whether they plan any changes for the future?
Lord Glenarthur: My Lords, the present policy lays emphasis on routine screening for cervical cancer every five years for all women over 35 years of age and younger women who have been pregnant on three or more occasions. The Committee on Gynaecological Psychology, which is an independent committee of experts, has recommended that for younger women a smear should be taken when they are first coming forward for contraceptive advice or when otherwise requested and thereafter at ages 20, 25 and 30, but at no other ages except during pregnancy.
Lord Molloy: My Lords, would the noble Minister not agree that there seems to be some apprehension as regards cancer tests? Would he be prepared at least to consider requesting regional health authorities to inform him of any difficulties they might be experiencing?
Lord Glenarthur: Certainly, my Lords, if there have been delays they are probably delays in the laboratory work which is needed to produce the results of the tests.
Baroness Ewart-Biggs: My Lords, would not the noble Minister agree that there is no use in organisations such as the Women's Cervical Cancer

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Control Campaign informing women and carrying out smear tests if there is such a backlog in the laboratory testing of those smears? Their work will come to nothing.
Lord Glenarthur: My Lords, there is not the backlog which the noble Baroness suggests that there is. We are aware that there have been some local difficulties in certain laboratories in some parts of the country—I am thinking particularly of Greenwich and Waltham Forest —but there are no general fears of a backlog in the way that is suggested.
Lord Ennals: My Lords, arising out of the Question asked by the noble Baroness, would the noble Lord look again at the question of the number of women waiting for screening? Also, could he say a little more about how the revised recall system will work, bearing in mind that the previous recall system did not really succeed? Finally, can he say something of the role of general practitioners, who have the closest contact with patients, and of the family practitioner committees in helping to make the scheme work?
Lord Glenarthur: My Lords, there is not the evidence to suggest that there is any backlog in the provision of these tests because they are provided in the way I described in the original Answer. So far as the recall system is concerned, the noble Lord will be aware that the National Health Service centralised recall system did not work effectively. In fact, only about 20 per cent. of all recall forms actually achieved a response; so that system was, as he knows, abandoned and the idea now is that health authorities should set up their own schemes. They were asked to provide alternative arrangements in conjunction with family pactitioner committees by April 1983.

European Transonic Wind Tunnel
2.50 p.m.
The Earl of Bessborough: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what progress is being made in locating the European Transonic Wind Tunnel.
The Chancellor of the Duchy of Lancaster (Lord Cockfield): My Lords, the Governments of France, Germany, Holland and Her Majesty's Government have all made formal commitments to support the construction of the European Transonic Wind Tunnel (ETW). The selection of a suitable site is currently under active and detailed consideration by the four Governments. Her Majesty's Government for their part will continue to seek to bring the selection process to a speedy and satisfactory conclusion.
The Earl of Bessborough: My Lords, I thank my noble friend for that Answer. Does he agree that it is highly desirable that we should have these facilities for Europe, regardless of where they are actually situated, and that we should not be obliged always to have
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recourse to facilities of this kind in the United States? Secondly, I wonder whether I may ask him this other question. Am I not right in thinking that it could be said that there are really two types of wind tunnel which it might he desirable to have in Europe: one, what might be called a digital wind tunnel, and the other a cryogenic or low temperature wind tunnel? If we do need these two, would it be helpful in negotiations to suggest that one might be located in one country and the other in another, since I understand it is not essential that they should both be located in the same place?
Lord Cockfield: My Lords, I entirely agree with the point made by my noble friend in the first part of his supplementary question. The important point is that these facilities should be available at the earliest possible date and Her Majesty's Government's efforts are directed to this end. I understand that this is, in fact, a cryogenic wind tunnel. So far as the digital wind tunnel is concerned, I gather that that is more a popular description rather than a scientific definition. Computational facilities are certainly required and I will draw the attention of the people concerned with the planning of this operation to the comments which my noble friend has made.
Lord Beswick: My Lords, I am sure that the House will welcome the hopeful note in the noble Lord's answer, but is it not a fact that it is now, certainly, some 10 or 12 years since we seriously started talking about this? Is it not also a fact that within that period Europe has spent hundreds, if not thousands of millions of pounds on these wretched wine and butter mountains and is it not time we came to a decision? Also, may I ask the noble Lord what has happened to that imaginative concept of creating a European centre at Bedford, with the United Kingdom putting its present resources into a common pool?
Lord Cockfield: My Lords, so far as the first part of the noble Lord's question is concerned, I would regard a wind tunnel as a different project from a wine or butter mountain. This particular project has admittedly been under consideration for a very long time. The Governments of France and Germany committed themselves to proceeding in the autumn of 1982. We committed ourselves to proceeding in November 1982. The Government of Holland gave their agreement in the autumn of last year. We ourselves convened a conference of senior official representatives of the states concerned in February of this year and we are continuing to press this matter. I entirely agree that the sooner we get this satisfactorily resolved the better. There is no difference at all between the noble Lord and myself on this point. So far as the second part of the noble Lord's supplementary question is concerned, I am not entirely clear what point he has in mind and perhaps he would let me know in more detail. But the crucial point is that this particular project should not be held up while we may be pursuing some wider and better project which may lie many years ahead.
Lord Beswick: My Lords, I should he glad to help the noble Lord about the Bedford project. But could he not be a little more cheerful when he says that he prefers a wind tunnel to a wine mountain?
Lord Cockfield: My Lords, we are dealing with the aeronautical industry rather than the gastronomic industry.

Historic Buildings: Maintenance VAT
2.55 p.m.
Lord Kennet: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government on what grounds and with what advice and in the light of what representations they have decided to remove VAT from "substantially reconstructing" (including gutting) historic buildings and their "approved alteration" (Commons Hansard, 18th May, cols. 271-2) while yet maintaining it on their repair and maintenance.
Lord Cockfield: My Lords, repairs and maintenance have always been liable to VAT since the tax was introduced and no change in that position has been made or proposed for listed buildings or otherwise. The concession announced for listed buildings, broadly speaking, excludes them from the extension of standard rate VAT to building alteration and reconstruction which my right honourable friend the Chancellor of the Exchequer announced in his Budget. In general, therefore, the status quo is being preserved for listed buildings. This followed representations made both inside and outside Parliament. There were also consultations with the Department of the Environment, the Historic Buildings and Monuments Commission, the Building Employers' Confederation and the British Property Federation.
Lord Kennet: My Lords, whether or not the recent change is a reversion to the status quo ante or has a new element in it, is it not the case that it does use fiscal means to discourage the repair and maintenance of historic buildings, which is what the public interest would like to see encouraged, and to encourage their substantial alteration, their gutting and their reconstruction, which is what the public interest would demand should be discouraged?
Lord Cockfield: My Lords, I am sure that the noble Lord would, in fact, welcome the concessions which were announced by my honourable friend the Minister of State at the Treasury, Mr. Barney Hayhoe, because those changes ensure that the fiscal impact is no different after the Budget from what it was before. So far as the liability on repairs and maintenance is concerned, this situation has existed since 1973 when the tax was first introduced. There have been numerous proposals that it should be changed, but successive Chancellors of the Exchequer under successive Governments have declined to make any change in that position. The reasons have been fully explained in debate. The last occasion on which this issue was debated was in another place in Committee on the Finance Bill on 30th April.
The Lord Bishop of Norwich: My Lords, may I ask the Minister whether he is aware that the changes
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which have been made, and of which he has been speaking, will add very considerably to the already heavy financial burdens on the churches? I speak on behalf of the Churches Main Committee, though of course I speak as an individual Member of the House, which covers all the churches of England, and they are very anxious about this matter of value added tax. This seems to constitute a discouragement to voluntary giving, which must seriously affect the churches' ability to look after the buildings in their care. Is the Minister aware that representations have been made on this account to the Government and that no reply has, I think, yet been received on that narrower issue?
Lord Cockfield: My Lords, I entirely appreciate the concerns expressed by the right reverend Prelate. So far as the last point that he raised is concerned, I understand that my right honourable friend the Chancellor of the Exchequer will be replying shortly to the right reverend Prelate the Bishop of London, who wrote on behalf of the Churches Main Committee. As to the other points he raised, the concession announced by my honourable friend the Minister of State at the Treasury applies to listed churches, and so far as they are concerned the status quo is maintained. On encouragement of voluntary giving, this Government have taken a series of measures, particularly in the Finance Act 1980 and the Finance Act 1983, to encourage voluntary giving to charities —and, of course, churches are charities —improving particularly the conditions applying to deeds of covenant
The Lord Bishop of Norwich: My Lords, I thank the Minister for that reply, which helps us to understand the problem. I particularly thank him for the first part of his answer, that his friend the Minister in another place may well be replying to us. I am glad that the Minister was in his place to hear that great psalm:
"He that sweareth unto his neighbour and disappointeth him not, though it were to his own hindrance, shall not fall."
I take comfort from that.
Lord Cockfield: My Lords, I am most grateful to the right reverend Prelate, and for the encouragement he gives me and other noble Lords to attend Prayers before the commencement of our proceedings.
Baroness Birk: My Lords, in spite of what various governments have done or have not done about VAT relief on listed and other ancient buildings, is the Minister aware that the definition "substantially reconstructing" involves a great deal of gutting and demolition and the changing out of all character of so many of our buildings? Could the Minister undertake to give further consideration in the coming year to the whole question of a newer definition and greater incentive in order to conserve and preserve buildings and also make them economically viable for other alternative uses?
Lord Cockfield: My Lords, I note the points made by the noble Baroness, and I shall most certainly draw them to the attention of my right honourable friend the Chancellor of the Exchequer. However, may I assure the noble Baroness that no substantial change has taken place in the definition of "reconstructing".

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She will find full details of this in Press Notice No. 912, issued by the Board of Customs and Excise. The important point is that in many instances one needs substantial work on a listed building to be carried out in order to give it a second lease of life. This is what is behind it.
Lady Saltoun: My Lords, why are the Government always preaching about good housekeeping they are apparently anxious to discourage the policy of make-do-and-mend and to encourage people to destroy and build anew?
Lord Cockfield: No, my Lords. That is neither a fair nor an accurate interpretation of the situation. As I have said, the liability to VAT on repairs and maintenance dates right back to the beginning of the tax in 1973.
Lord Montagu of Beaulieu: My Lords, as chairman of the Historic Buildings and Monuments Commission, may I express its appreciation to Her Majesty's Government for their acceptance of the commission's arguments for the zero-rating of structural alterations to listed buildings. However, may I take this opportunity to express the commission's continuing concern with regard to the test under which alterations must reach 75 per cent. of the total cost. Will not Her Majesty's Government agree that perhaps it would be more realistic and equitable to make it 60 per cent., thus reducing the harshness of the test and resulting in more listed buildings being preserved for alternative use?
Lord Cockfield: My Lords, I am grateful to my noble friend for the first part of his remarks. As to the second part, I am assured that the new 75 per cent. test, which depends on different factors, has approximately the same impact as the existing 50 per cent. test which applies to all expenditure, including the repair and maintenance element in the total cost. It is a much simpler test to operate. I shall however draw the attention of my right honourable friend to what my noble friend has said.
Lord Grimond: My Lords, while I know that many of the bodies which the noble Lord the Minister has consulted are grateful for the change that has been made, may I ask whether it is not the case that they are still very worried about the impact of VAT on repairs to historic buildings? May I also ask the Minister whether it is intended that there should be further conversations with them about this matter in the hope that a more agreeable solution can be found?
Lord Cockfield: My Lords, as I have already said, the concession which has been announced is felt by the Government to meet the main criticism which has been made of the proposals. It is related specifically to listed buildings which can readily be identified. Perhaps I ought to add that in addition to this concession, the Government disburse approximately £17 million every year in grants towards the repair, maintenance and renovation of such buildings.
Lord Kennet: My Lords, may I ask the Minister whether the Government will have consultations with
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the tourist industry, which was not on the list of those who had been consulted that was read out by the noble Lord, and which is now, I believe, our principal foreign exchange earner? It cannot be the Government's intention to encourage the gradual erosion and destruction of an important part of that industry's plant.
Lord Cockfield: My Lords, I simply cannot accept what the noble Lord says in the latter part of his supplementary question. On the contrary, this Government have done a very great deal to help and assist the preservation of our heritage. I appreciate that the number of bodies consulted was limited, but this was because of the necessity to make an announcement at an early date.
Lord Bruce of Donington: My Lords, can the noble Lord give some indication of the annual cost of the concession to which he has referred?
Lord Cockfield: My Lords, the annual cost of this concession is stated to be £10 million a year.

Future Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Elton will, with the leave of the House, repeat in the form of a Statement an Answer to a Private Notice Question in another place on the mining dispute public disorder.
It may be for the convenience of your Lordships if I tell the House that the Committee stage of the Trade Union Bill will be adjourned for dinner at approximately 7 30 p.m. for a short period and that during this adjournment the Committee stage of the Child Abduction Bill will be taken.
On Thursday next, 21st June, it is proposed that the Committee stage of the Health and Social Security Bill shall be adjourned at approximately 6 p.m., that at that point the Appropriation (No. 2) (Northern Ireland) Order will be taken and that after that again the Committee stage of the Health and Social Security Bill will be resumed.
The consideration of Commons Amendments to the Data Protection Bill, which was to have been taken on Thursday, has been postponed to a date not yet fixed.

Parliamentary Pensions etc. Bill
Brought from the Commons; read a first time, and to be printed.

Building Bill [H.L.]
3.8 p.m.
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I rise to move that this Bill be now read a second time.
It continues the process of consolidating the extensive and varied mass of legislation relating to public health and follows the Refuse Disposal

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(Amenity) Act 1978, the Litter Act 1983 and the Public Health (Control of Disease) Bill. The present Bill consolidates the provisions relating to new and existing buildings and such of the ancillary provisions contained in Part XII of the Public Health Act 1936 as are relevant. If your Lordships give this Bill a Second Reading, it will be referred in the usual way to the Joint Committee on Consolidation Bills. I beg to move.
Moved, That the Bill be now read a second time. —(The Lord Chancellor.)
On Question, Bill read a second time, and referred to the Joint Committee on Consolidation Bills.

County Courts Bill [H.L.]
The Lord Chancellor: My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered. —(The Lord Chancellor.)
On Question, Motion agreed to.
The Lord Chancellor: My Lords, there are six of these amendments, and, with your Lordships' permission, I shall take Amendments Nos. 1, 2, 5 and 6 together and Amendments Nos. 3 and 4 separately, for a reason which will shortly appear. In each case I shall be moving that the House doth agree with the Commons in their amendment.

COMMONS AMENDMENTS
[References are to [Bill 151] as first printed for the Commons].
1 Clause 55, page 31, line 9, leave out ("level 3 on the standard scale") and insert ("£400").
2 Clause 118, page 62, line 18, leave out ("level 4 on the standard scale") and insert ("£1,000").
5 Schedule 2, page 89, line 32, leave out ("An amount not exceeding level 3 on the standard scale") and insert ("£400").
6 Schedule 2, page 89, line 35, leave out ("An amount not exceeding level 4 on the standard scale") and insert ("£1,000").
The Lord Chancellor: My Lords, Amendments Nos.1, 2, 5 and 6, to which I now speak, all relate to the retrieval of mistakes in drafting. They relate to the fact that the Bill as at present drafted speaks of the standard level of penalties, which is appropriate only to summary offences, whereas they are applied in the Bill to indictable offences, which are not appropriate. That mistake is now retrieved, if the House agrees with the Commons in these four amendments. With the leave of the House, I beg to move that this House doth agree with the Commons in their Amendments Nos. 1, 2, 5 and 6 en bloc.
Moved, That this House doth agree with the Commons in the said amendments.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
3 Schedule 2, page 87, line 31, after ("rules)") insert (" —(a)").
4 Schedule 2, page 87, line 33, after ("1984") insert ("; and (b) for the words "Part VII" there shall be substituted the words "Part VI".").
The Lord Chancellor: My Lords, in substance, these amendments merely retrieve another minor error. The Bill as drafted dealt with Part VII of the County Courts Act 1959, and that has now become Part VI of the Bill. The effect of these two amendments is to substitute a reference to the appropriate part of this Bill. I beg to move that this House doth agree with the Commons in their Amendments Nos. 3 and 4.
Moved, That this House doth agree with the Commons in the said amendments.—(The Lord Chancellor.)
On Question, Motion agreed to.

Capital Transfer Tax Bill [H.L.]
The Lord Chancellor: My Lords, I understand that no amendments have been set down to this Bill, and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of recommitment be discharged.
Moved, That the order of recommitment be discharged. —(The Lord Chancellor.)
On Question, Motion agreed to.

Housing and Building Control Bill
3.12 p.m.
The Minister of State, Department of the Environment (Lord Bellwin): My Lords, I beg to move that the Commons amendments and the Commons reason for disagreeing to a Lords amendment be now considered.
Moved, That the Commons amendments and the Commons reason be now considered.—(Lord Bellwin.)
On Question, Motion agreed to.

COMMONS AMENDMENTS IN LIEU, AMENDMENT TO A LORDS AMENDMENT, CONSEQUENTIAL AMENDMENTS AND REASON
[Except where otherwise stated, references are to Bill (100). The Commons proposed amendments and Reason are printed in italics]
Schedule 10

  COMMONS AMENDMENT As AMENDED BY THE LORDS AMENDMENT
  The Lords amendment is printed in bold type
  1 Page 83, line 20, at end insert—
  ("3A) The provisions of Part I of the said Act of 1967 shall not apply to a tenancy of a dwelling-house which is a house which is created by the grant of a lease in pursuance of Chapter I of Part I of the 1980 Act or Part I of this Act, nor to a sub-tenancy derived (whether directly or indirectly) from that tenancy, in any case where the landlord is a registered Housing Association and the freeholder is a body of persons or Trust established for charitable purposes only.
  (4) Where, in the case of a tenancy to which this subparagraph applies, the tenant or the tenant under a sub-tenancy directly or indirectly derived out of the tenancy exercises his right to acquire the freehold under Part I of the said Act of 1967, the price payable for the dwelling-house shall be determined in accordance with section 9(1)(A) of that Act notwithstanding that the rateable value of the dwelling-house does not exceed £1,000 in Greater London or £500 elsewhere.
  (5) Sub-paragraph (4) above applies to—

  (a) a tenancy of a dwelling-house which is a house which is created by the grant of a lease in pursuance of Chapter I of Part I of the 1980 Act or Part I of this Act;

  (b) a tenancy which is granted in substitution for a tenancy falling within paragraph (a) above in pursuance of Part I of the said Act of 1967; and

  (c) where in any case that Part applies as if there had been a single tenancy granted for a term beginning at the same time as the term under a tenancy falling within paragraph (a) above and expiring at the same time as the term under a later tenancy, that later tenancy.").

  The Commons disagreed to the Lords amendment (to insert sub-section (3.A)) but proposed the following amendments in lieu thereof
  [As Amendments to the Bill]
  2 Page 82, line 46, at beginning insert —
  ("Part I of the Leasehold Reform Act 1967 (enfranchisement and extension of long leaseholds) shall not apply where, in the case of a tenancy or sub-tenancy to which this sub-paragraph applies, the landlord is a housing association and the freehold is owned by a body of persons or trust established for charitable purposes only.
  3 Page 83, line 2, leave out from ("the") to ("as") in line 3 and insert ("said Act of 1967").
  [As Amendments to Amendment 1]
  4 Line 10, after ("tenancy") insert ("or sub-tenancy").
  5 Line 11, leave out ("or the tenant under a sub-tenancy directly or indirectly derived out of the tenancy").
  6 Line 18, leave out ("Sub-paragraph (4) above applies") and insert ("Sub-paragraphs (1) and (4) above apply").
  7 Line 21, at end insert ("and any sub-tenancy directly or indirectly derived out of such a tenancy").
  8 Line 22, leave out paragraph (b).
  9 Line 25, leave out ("that Part") and insert ("Part I of the said Act of 1967").
  10 Line 29, at end insert ("and any sub-tenancy directly or indirectly derived out of that later tenancy; and sub-paragraph (4) above also applies to a tenancy which is granted in substitution for a tenancy or sub-tenancy falling within paragraph (a) or (c) above in pursuance of Part I of the said Act of 1967".)
  Lord Bellwin: My Lords, I beg to move that this House doth not insist on their amendment to the Commons Amendment No. 1 and doth agree with the Commons Amendments Nos. 2 to 10 in lieu thereof.
  These amendments need not detain your Lordships for long. I will speak first to Amendments Nos. 1 to 10. Your Lordships may recall that Clause 1 will extend the right to buy to property where the landlord's own interest is leasehold. It will give secure tenants the right to purchase a long sub-lease of their homes, assuming they meet the normal qualifying conditions. Under the terms of the Leasehold Reform Act 1967, long leaseholders of houses would normally be able to go on and enfranchise their leases and acquire the freehold.
  However, an amendment modifying this provision was successfully moved against the Government by my noble friend Lord Selkirk when the Bill last came before this House on 10th May. The effect of that amendment was to allow all eligible tenants to purchase a long sub-lease of their homes, but to deny rights of enfranchisement to tenants of housing associations where the association's interest in the property is leasehold and the freeholder is a charitable body.
  On further reflection the Government have decided to accept the substance of my noble friend's amendment. As I said on 10th May, I do not regard it as a wholly logical amendment. It is not clear to me
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  why this distinction should be drawn between housing association and local authority leasehold property; nor why we should be providing additional protection for charities which are in many cases those already enjoying special protection under the provisions of the Leasehold Reform Act. But the Government have to accept that there is strong feeling on this issue in your Lordships' House, and we have therefore decided to accept the substance of the amendment.
  The present amendments are simply designed to tidy up the drafting, and to ensure that the 1967 Act will be disapplied not only in respect of the right-to-buy sub-lease, but also in respect of any contractual extension to that lease.
  I should like to congratulate my noble friend for winning this particular argument —with the very able support, as I am sure he would be the first to confirm, of my noble friends Lord Molson and Lord Coleraine. Clause 1 has raised some exceedingly complex issues and the argument has been long and difficult. But I hope the position we have now reached will be acceptable to my noble friend and to the House.
  Moved, That this House doth not insist on their amendment to the Commons Amendment No. 1 and doth agree with the Commons Amendments Nos. 2 to
  10 in lieu thereof.—(Lord Bellwin.)
  The Earl of Selkirk: My Lords, I expect that the Government will be only too glad to get this Bill out of its parliamentary phase. It has been before us, one way or another, for the best part of two years. I should like straight away to thank the noble Lord, Lord Bellwin, for the courtesy he has invariably shown through what has been in part a very difficult Bill, and for the care he has taken in numerous letters to explain points which have been raised in the course of debate. The House can be well satisfied with the redraft which the draftsman has put before us today, and I hope that it will work out satisfactorily.
  I must admit that I am a little sorry that the Department of the Environment should still feel a little doubtful about the wisdom of this Bill —but I am confident that as the years pass the department will be glad that they did not insist on what I thought was a pretty unsatisfactory arrangement of the kind we had before. We should acknowledge that we probably do owe something to my noble friend the Leader of the House for the manner in which he has enlightened his colleagues on what this amendment actually does. We should be very grateful to him.
  I will only say again that we should be very grateful also to the noble Lord, Lord Bellwin, for the immense amount of trouble he has taken with this Bill —as he has with all the other Bills with which he has been dealing.
  On Question, Motion agreed to.

LORDS AMENDMENT
11 Clause 2, page 3, line 13, leave out subsection (3) and insert—
("(3) For paragraph 5 of Part I of Schedule I to the 1980 Act (circumstances in which the right to buy does not arise) there shall be substituted the following paragraph —
"5. The dwelling-house is designed or specially adapted to make it suitable for occupation by persons of pensionable age, and it has always been the practice of the landlord to let the dwelling-house for occupation by persons of pensionable age; and in this paragraph

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"designed or specially adapted" means accommodation built or adapted in accordance with the principles of advice and guidance on the design of elderly persons' accommodation issued by the Secretary of State and available to landlords at the time of construction or adaptation.".").
The Commons did not insist on their disagreement to the Lords amendment 11 but proposed the following amendment thereto:
12 Line 2, leave out from first ("of") to end of Amendment and insert ("that Part of that Schedule there shall be substituted the following paragraph —
"5.—(1) The Secretary of State has determined, on the application of the landlord, that the right to buy is not capable of being exercised with respect to the dwelling-house; and he shall so determine if, and only if, he is satisfied that the dwelling-house —

(a) is particularly suitable, having regard to its location, size, design, heating system and other features, for occupation by persons of pensionable age; and

(b) was let to the tenant or to a predecessor in title of his for occupation by a person of pensionable age or a physically disabled person (whether the tenant or predecessor or any other person).

(2) An aplication for a determination under this paragraph shall he made within four weeks or, in a case falling within section5(2) of the Act, eight weeks of the service of the notice claiming to exercise the right to buy.".").
Lord Bellwin: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 12 to the Lords Amendment No. 11.
Perhaps I could briefly remind your Lordships of the background to the second group of amendments —Amendments Nos. 11 to 25. The 1980 Act allows landlords to apply to the Secretary of State to have dwellings provided for the elderly excluded from the right to buy. That provision has given rise to a number of problems. Most importantly, many elderly tenants appear to believe that they do not have the right to buy at all, and some landlords appear to have been using that provision as a pretext for denying the right to buy without reference to the Secretary of State.
We therefore brought forward proposals in another place last December to end the present exemption procedure, and instead to provide that elderly tenants should have the right to buy on the same basis as other tenants; but that landlords should have rights of preemption where dwellings are resold within 21 years of the original sale. We saw this as a means of ensuring that elderly tenants obtained the rights which Parliament conferred upon them, but at the same time of giving landlords means of meeting the needs of the elderly for housing to rent.
As noble Lords will recall, at Committee stage in this House the noble Baroness, Lady Birk, successfully moved an amendment which adopted a quite different approach: it placed the responsibility for excluding elderly persons' dwellings from the right to buy with the landlord. This is an approach which the Government rejected in 1980. Given the evidence which has emerged since then of the apparent willingness of some authorities to deny elderly tenants their ligitimate rights, it is an approach which is even less acceptable to the Government now than it was in 1980.
When the Bill returned to the Commons, we proposed two measures to strengthen our original provision: the retention of an exemption procedure in certain rural areas, and a tightening-up of the landlord's right of pre-emption. On the Bill's return to
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this House, however, the noble Baroness's amendment was again approved, though—if she will allow me to say so—by only one vote. Nevertheless, we have concluded that the only alternative likely to win sufficient general acceptance is to retain the present exemption procedure in basically its present form.
That is the effect of these amendments. They provide that it will remain open for all authorities to continue to apply to the Secretary of State to have elderly persons' dwellings exempted from the right to buy. At the same time, we propose to remove some of the difficulties which have arisen under the present provision by clarifying the criteria to be applied by the Secretary of State. The criteria to be embodied in the new paragraph 5 are those at present in Clause 7 of the Bill —the pre-emption provision. Like the previous criteria, they deal with physical characteristics and with the letting of the dwelling; but they are expressed in clearer and more definite terms. They will avoid the need for detailed inquiries into records by focusing on the present state of the dwelling and on the circumstances of the present letting. I believe that is a change which will be generally welcomed.
To minimise any difficulties over the interpretation of the new criteria we shall be issuing guidance to landlords in the form of a circular. This will cover such matters as the factors the Secretary of State will take into account in considering whether a dwelling is suitable for the elderly, and the administrative procedures to be followed. I give an undertaking to the House that we shall consult the local authority associations and other interested bodies, such as Age Concern, on the contents of this guidance before it is issued.
The other amendments in this group are technical, or consequential, amendments. The only one I think I need mention is Amendment No. 14, which deletes the provision presently in the Bill giving landlords a right of pre-emption in respect of elderly persons' dwellings. Now that the exemption procedure is to be retained generally, we see no case for a pre-emption option as well.
I confess to a certain disappointment that your Lordships rejected the original proposals, but again I congratulate the noble Baroness upon her assiduity (if I may use the term) in pursuing her course; not, if I may say so, for the first time —and I mean that in the nicest way. I believe that from the point of view of both tenants and landlords, this originally represented the most satisfactory way of resolving the problems that have arisen over paragraph 5. It has been said more than once in these debates that probably not many elderly people want to buy their homes. That may be true; but it is equally true that those who do should be able to know where they stand.
Nevertheless, these revised proposals, though more modest in their scope, will, I believe, represent a significant improvement on the present provisions. I hope that they represent a compromise which will be acceptable to the noble Baroness and to the House. I beg to move.
Moved, That this House doth agree with the Commons in their Amendment No. 12 to the Lords Amendment No. 11 —(Lord Bellwin.)
3.23 p.m.
Baroness Birk: My Lords, may I thank the Minister for the very clear, and, if I may say so, the very charming and courteous way in which he put forward the changes which have been made in this part of the Bill. As the Minister has pointed out, when the Bill arrived first in this House from another place all except sheltered housing was open for sale. The 1980 provisions have been taken out, subject to the old Clause 7 which covered the 21-year pre-emption buy-back, which was discretionary, anyway.
As the Minister pointed out, my amendment moved here was won twice, but as he also quite fairly pointed out, the second time it was by one vote. It was at that point that we had to make a brinkmanship decision: should we go forward and try again, or not? It seemed to me that the chances of winning a third time were doubtful; I would not say hopeless, but doubtful. The Government were also obviously slightly worried because there was quite a hiatus over this. But if it had been lost, I felt that the position then would have been very much worse than it was before I moved the amendment. Therefore, it seemed sensible to come to some kind of compromise which would be acceptable, not only to the Government, but also to my noble friends and myself, and indeed to all those noble Lords from all parts of the House who had supported the amendment on both occasions.
So the decision then was to go back to the 1980 situation, but as the Minister has quite rightly pointed out, it is a tremendous improvement on itself. First, the criteria are much more clearly spelt out, they are wider, and there is less doubt. It has the advantage over my own amendment that it is not as restrictive. I made my amendment deliberately restrictive so that it applied only to houses which had always been occupied by elderly persons. I did that in order to try to meet the Government's objections; but this has now gone.
The only query arises on the point that we have gone hack to the situation where the Secretary of State has the right of determination. But one of the things which I am glad the Government have finally been persuaded to agree to was the determination that it had to be mandatory on the Secretary of State, subject to the two criteria which are in the Bill.
I think I also asked the Minister for a code of guidance, and he has so clearly expressed it, for which I am grateful; there will be a code of guidance, or a circular. The question of consultation with local authority associations and with other bodies which are concerned with elderly people and the disabled is extremely important.
I would thank the Minister not only for his patience while all this was going on, but for the very large part he played, I am sure, in trying to get some rapport between the hawks and the doves over this question. I think that the definition we now have is very much better. We now have safeguards in the Bill for those elderly people who are living in rented housing, and so it is a very much better Bill. In the future elderly persons in rented accommodation will be in a very much happier and more secure situation.
Finally, this is a considerable victory for this House, and is one of great importance to very many people in
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the country. Again I express my gratitude for the support received from all Benches in this House. The feeling in the House so far as this question is concerned was quite clear.
Lord Evans of Claughton: My Lords, may I say, for the avoidance of doubt following some discussions that were held in another place on this amendment, that we welcome very warmly the new amendment and we congratulate the Government on their generosity and on their understanding of the will of this House. I should particularly like to congratulate the noble Baroness on her assiduity and her devotion to working at week-ends and even to trying to make the Government see the error of their ways. I think she deserves our deep gratitude for the way she persisted in following this matter, strengthened, as I believe she admits, by the knowledge that she had support from a very wide spectrum of opinion in your Lordships' House.
I think this is a considerably better outcome, particularly in the light of what the noble Lord the Minister said about the guidance to be issued to local authorities. That will be very helpful. I think it will be helpful to those councils which desire to retain a stock of housing for the elderly.
I believe that the position has improved compared with what it was under the Housing Act 1980. That Act stipulated that in applying for a property to be exempted from the right to buy, the council must satisfy the noble Lord's department that the dwelling had been designed or specially adapted for elderly people. As I see it, the new clause would require council approval only if a dwelling were particularly suitable for occupation by elderly people. I think that is a considerable advance on both the original amendments discussed in this House and the position under the 1980 Act. Therefore I hope and believe that the new clause will reduce bureaucratic problems, will give councils more liberty, will protect elderly people who need rented accommodation, will improve the position compared with what it was under the 1980 Act, and will be generally and widely welcomed, not only by this House but also, I think, by bodies such as Age Concern and others which care about elderly people. I very warmly welcome the new clause.
Lord Molson: My Lords, I should like to associate myself especially with my noble friend Lord Selkirk, the noble Baroness, and the noble Lord, Lord Evans of Claughton, in welcoming the satisfactory solution to this protracted dispute between your Lordships' House and the Government. I should like in particular to echo the tributes that have been paid to my noble friend Lord Bellwin for the courtesy and patience which he has shown all through these matters, and I wish to associate with him in these remarks the Leader of the House, who has been extremely helpful.
Having said that about the solution of this problem, I should like to take a little of your Lordships' time to examine why this controversy arose. I shall criticise the drafting of the 1980 Act and the way in which the Secretary of State has exercised his discretion. I shall not criticise his advisers, whether parliamentary draftsmen or legal advisers or civil servants, because Ministers alone are responsible.

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In the heyday of Socialist dogmatism, Mr. Douglas Jay proclaimed that the "gentleman in Whitehall knows best". That dogma was hung round his neck like an albatross —and I think it still dangles there —and also round the neck of the Labour Party. I never then expected to see a Conservative Administration adopt that dogma in the way that it did in the 1980 Act. In dealing with the right to buy houses adapted for the elderly in rural areas, the Secretary of State assumed the right at his discretion to decide two things: first of all, to decide what are rural areas, and, within those areas, to decide what individual houses should or should not be sold. In both cases his exercise of his discretion seemed unreasonable.
On 23rd May the noble Lord, Lord Hylton, asked a parliamentary Question which was answered by my noble friend Lord Skelmersdale on behalf of the department. Lord Hylton asked why, out of 129 applications made by authorities which thought themselves rural, only 21 had passed the Secretary of State's test. It might be thought by anyone looking out of the train while travelling about this country that quite a large proportion of the countryside is rural. But the Secretary of State took, in the main, two criteria into account in deciding what were rural areas. The first was that he used an illustrative figure of two persons per hectare, or less, to identify rural areas. In the second place, he asked the authorities to satisfy him that the incidence of second homes in their areas was such as to warrant designation. Unless there were a sufficient number of second homes, he denied a designation.
In designating these areas, the Government, in the words of my noble friend Lord Skelmersdale, as given in Hansard,
"With scrupulous attention to detail … have followed the wishes of your Lordships and Members in another place".
I would substitute for the words, "With scrupulous attention to detail", the words "with unreasonable prejudice". If that is the way the Department of the Environment has administered these provisions, it is not surprising that my noble friend Lord Bellwin should have complained in the Second Reading debate that the administration of these provisions cost his department £150,000 a year. Indeed, but for this pedantic administration there might have been some reduction in the number of civil servants, to which we understand the Prime Minister attaches so much importance.
There is a far deeper ground for complaint. This reference to the wishes of legislators implies that, in interpreting the 1980 Act, the Secretary of State has been perusing Hansard. It is an established principle that in interpreting a statute the courts do not refer to parliamentary debates. Much the same principle should apply when a Minister is exercising a discretion given to him by Parliament. When there is a general debate and different opinions are expressed, it is impossible for either a court or a Minister to gain any trustworthy guidance from the debate.
In the wording of the Act of 1980 dealing with these provisions there is no reference to second homes. The main concern of Parliament was the reservation of suitable houses for elderly people. Second homes were
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only relevant because such a dwelling was removed from the pool of houses for the elderly. The words "rural areas" ought to have been construed in a reasonable way. This was expressed by the noble and learned Lord, Lord Simon of Glaisdale, when he said that they should be areas which are in every sense rural in the common acceptance of that term. I know that Ministers feel that some local authorities have unfairly frustrated the wish of tenants to buy. My noble friend Lord Bellwin repeated that in his speech this afternoon. I doubt whether this applies in many cases to rural authorities. The Government, however, have provided this complicated system of designation and appeals but it is difficult to resist the suspicion that the Government have allowed their own prejudice in favour of the right to buy to influence their decisions; and the figures tend to confirm that.
It is an unsatisfactory system when appeals are used too frequently to reverse the views of local authorities. The Tory Party has always maintained in principle that freedom demands a wide distribution of power. That means that local decisions, unless perverse, should not lightly be reversed by authorities in Whitehall. It also means that the administration of housing policy should largely be left in the hands of local authorities. I have analysed how it comes about that there has been such a serious difference of opinion between this House and the Government, settled as now, in the case of this new Bill, by the concessions which have been made by the Government. May I now appeal to them to carry this spirit of conciliation a little further and to modify, in the light of all that has been revealed, the interpretation they have put on the existing legislation so as to allow a slightly more generous interpretation than they have done in the past.
I would make a special plea to my noble friend Lord Bellwin to appeal to the Secretary of State to allow the 108 local authorities where he has refused to designate to apply again, with some hope now that he will recognise rural areas to be really rural. I hope also that when considering applications in respect of individual houses, he will not attach such importance to second homes, but much more to the future needs of the elderly. I would say to the Government, being in possession of an unassailable majority in another place, that it is a sign not of weakness, but of strength, for them to agree to modify their policy in the face of reasoned arguments and the declared wishes of this House.
Lord Bellwin: My Lords, I have no intention of replying to my noble friend, except to say that, of course, the authorities concerned by all means can, and should, apply again. Other than that, I shall not take up the other points that he made. As has rightly been said, we have been debating this issue for two years. The last thing I would do at this late stage is to start debating the philosophies and theologies of the right to buy. I hear what my noble friend says
I beg formally to move that the House doth agree with the Commons in their consequential amendments, Amendments Nos. 13 to 20 —
Lord Hatch of Lusby: My Lords
The Lord Chancellor: My Lords, the Question is, That this House doth agree with the Commons in their Amendment No. 12 to the Lords Amendment No. 11.
On Question, Motion agreed to.

Mining Dispute: Orgreave Incident
3.42 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, with the leave of the House, I shall now repeat the Answer which has just been given in another place to a Private Notice Question about measures to prevent a repetition of the violence and public disorder that occurred yesterday in connection with the mining dispute. The Answer was as follows:
"The violence yesterday was concentrated at the Orgreave coking plant. The police estimate that at nine o'clock yesterday morning some 10,000 people were in the vicinity. They were there to stop the British Steel Corporation exercising its lawful right to remove coke from the plant. The police were subjected to a considerable level of violence, and to deal with it found it necessary to use both mounted officers and officers equipped with shields and helmets. Ninety-three arrests were made. Of those arrested, 26 have since been charged with riot. The remainder have been charged with unlawful assembly, assault and public order offences. Twenty-eight police officers suffered injuries. The disorder, during which large numbers of missiles were thrown at police officers, continued until after mid-day. Apart from the physical violence, a field close to the lines of police officers was set on fire and three vehicles were removed from a local yard and set on fire. A car filled with rubble was pushed down a hill towards the lines of police officers. Fortunately, it merely hit a wall. A barrier was erected in the road and set on fire.
"In spite of the large numbers of people present and the violence which arose, the police were able to ensure that the vehicles due to go into and out of the plant were able to do so as required.
"With regard to the possible repetition of events of this kind, no Government can guarantee that violence will not recur if there are people who are determined to resort to it. What the Government can and must do is to give the police any support that is needed in their difficult task of preventing and containing violence and dealing with it when it arises. This Government have done that and will continue to do so. The Government must also ensure that the law relating to public order is adequate and that the courts have proper powers to deal with offences against it. For the most part, the provisions of the criminal law relating to such offences as obstruction, intimidation, criminal damage and riot are adequate, and the courts' powers very substantial. I do not believe that there is a need for major changes in this area, although, as the House will know, this is a matter we have under review. What there is need for now is unequivocal and unanimous condemnation of the use of violence
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as a means of securing political or industrial objectives; and full support for those who are determined to ensure that violence shall not prevail."
My Lords, that completes the reply which was given by my right honourable friend the Home Secretary.
Lord Mishcon: My Lords, this House will be grateful to the noble Lord the Minister for his courtesy in repeating that Statement in reply to a Private Notice Question in another place. In every part of your Lordships' House, and in every part of the nation among our decent folk, yesterday will go down as a black Monday. From these Benches there will never be anything other than a condemnation of violence from wherever it may come, nor will there be anything other than support for picketing which is peaceful picketing. Yesterday's scenes on television were too terrible for words, bearing in mind our history of moderation in this country; and, having said what I have said, I cannot do better than to repeat what my right honourable friend the Leader of the Opposition in another place said after looking at those scenes: "Horrifying, untypical, and un-British".
I am sure that we are all pleased—if that is the right word —that a police inquiry is to take place into what occurred yesterday. But I believe that the nation as a whole knows, as your Lordships know, that no police inquiries, no epithets, and no denunciations will of themselves cure this completely unholy deadlock, which has culminated in the situation that we now face after 15 weeks of this dispute. I believe that from these Benches, which I have the honour to represent at the moment, we are speaking for the nation as a whole when we say that the Government have a duty to act.
That does not mean anything other than this: none of us can stand by idly while these things occur as a result of complete inactivity by a Government who are supposed to stand for law and order and for strong government. There must be third party intervention in this unholy deadlock, especially where the two chief participants have —and it is evident —no confidence not only in one another, but, as they have themselves so expressed, no confidence in one another's words.
I hope that the noble Lord the Minister read the letter in The Times this morning from my right honourable friend the Member for Barnsley, Central. With your Lordships' permission, I shall quote merely one sentence of the letter:
"The Prime Minister and Secretary of State for Energy must impress upon all concerned the necessity to establish an independent court of inquiry to examine the causes of this dispute, the way forward for conciliation, and the salvation of our main industrial producer of energy".
I ask the noble Lord the Minister, who speaks for the Government on this occasion, if there is not to be a court of inquiry, is there at least to be an approach made by the Government to see that ACAS takes its normal intermediary role in this affair; and, if not now, when? All of us have regretted this Statement. As I plead on behalf of these Benches, let it at least lead to some action before things get even worse.
Lord Harris of Greenwich: My Lords, may I ask the noble Lord whether he is aware that we are grateful to him for having repeated this Statement? Following

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what he has said, perhaps I may ask him one or two questions. First, will he accept from my colleagues and myself, and I am sure the overwhelming majority of the House, that we wholly deplore what happened yesterday? There can be no possible excuse, under any circumstances whatever, for what happened at Orgreave. May I ask him whether he is aware that the Chief Constable of South Yorkshire, Mr. Wright, has indicated today that so far 223 people have been injured, many of them police officers, during the course of these various incidents at Orgreave? This is a scale of violence which is wholly unacceptable in this country.
May I further ask the noble Lord whether he is aware that we believe that in these circumstances there should be the firmest and most unequivocal support for the police in the job which they are doing? Secondly, may I ask him whether he is aware that many of us are disturbed by suggestions which have been made that the Government have been attempting to dissuade the heads of nationalised industries from using the civil law to deal with the situation which is arising? Is he aware that secondary picketing is unlawful in this country; and is he further aware that, given the fact that Parliament has spent a great deal of time and devoted a great deal of attention to these matters over the last four years, we expect the civil law in this country to be upheld?
The Lord Bishop of Norwich: My Lords —
Lord Elton: My Lords, I think convention requires me to intervene at this stage. I should like to welcome the vigour and robustness with which both noble Lords who have spoken have, on behalf of their parties, supported law and order and those who enforce it. I believe it is crucially important that the nation should be united in resistance to any resort to bully-boy, strong-arm tactics to achieve what the law denies in the protection of other members of the community.
Her Majesty's Government are not sitting in masterly inactivity. They have secured the means by which even this level of violence can be contained at a level at which it does not achieve its avowed objective. I do not wish to follow the noble Lord, Lord Mishcon, into questions on the management of the coal and steel industries when dealing with a Question concerning the enforcement of law and order. On the latter, I can tell the noble Lord. Lord Harris, that, to the best of my knowledge, up to date 406 policemen have been injured in this dispute as a whole. I do not have figures for members of the public.
The Lord Bishop of Norwich: My Lords, I apologise to the House for rising before the Minister replied. From these Benches we take very seriously the tremendous problems and pressures which our nation faces at the moment. I am sure that all of us on these Benches would want also to underline our unequivocal support for the police, who are facing the greatest difficulties, pressures and dangers. We know what those pressures are like, because all of us know ordinary policemen and the way they constantly care for us here and outside the Palace. Secondly, we on
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these Benches should also like to underline the fact that the violence is of such seriousness that it is untypical of the way our nation conducts its business, and we should all abhor that violence.
Thirdly, I know I speak for a number of bishops who are personally concerned here when I say that we on these Benches should like to feel that the Church, which stands for reconciliation in difficult situations, understands better the minds of ordinary miners who are at the moment caught up in this untypical and dangerous situation, and from these Benches we should like to offer anything that we can do. That is not simply saying piously that we will pray —I know there are prayers on this matter being offered in every church throughout our country—but if from these Benches we could offer anything by way of reconciliation we would gladly do so and would gladly go to the point where conversation between conflicting parties can be entered into. Down the years Christian leaders of various kinds, as well as rank and file Christians, have sought to be at the point of confrontation between people, and we should like to offer whatever reconciliation or work we can.
I give one simple and homely instance, and with that I finish. There is in one of the parishes in this difficult area at the moment one member of a church council who is a representative of the National Union of Mineworkers, and there is one member in that particular parish, also on the church council, who is himself a local representative of the National Coal Board. When, in that area, they have had incipient problems in the past, those two have gone together into their local parish church; they have talked and prayed together, and they have sorted out their local situation in prayer together. If there is anything which we on these Benches can do to help in reconciliation, we should like to be able so to do. Pray we do, pray we will —and we will go if there is anything we can do.
Lord Elton: My Lords, I am grateful for the right reverend Prelate's intervention and for his perceptions. I am certain that the Church—aptly, the Church militant—can be of help in the field and the home in this matter, though I would not at this stage be able to suggest a national role, if that is what he had in mind. However, his good wishes are almost as welcome as his prayers, without which we would not survive.
Lord Ezra: My Lords, all noble Lords who have spoken so far have rightly deplored the scenes of violence which were witnessed yesterday. These indeed exceed anything that has occurred in an industrial dispute since the war, and far exceed even those scenes of violence which occurred in the 1972 miners' strike. So we must by every possible means ensure that these scenes do not recur. It is therefore necessary to try to consider what are the causes of this dispute continuing.
As the chief constable who was interviewed said yesterday, there is undoubtedly a sense of frustration, whether or not justified. As a part of that sense of frustration there is undoubtedly, within the mining industry, in my opinion, a feeling of uncertainty about the future. Obviously that future will be made all the more uncertain the longer this dispute continues.

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The Government have said that they do not wish to intervene in any negotiating position between the participants. However, I should like to submit that there is a way in which, without departing from that intention, the Government can help to allay some of the uncertainty about the future of the mining industry in this country. If the Government were to come out with a clear statement as to their broad energy strategy and the part which coal could play in that, under whatever conditions they wish to indicate, then at least everybody in the industry would know where they stood. I should like to make that suggestion to the noble Lord the Minister.
Lord Elton: My Lords, the noble Lord again tempts me to discuss how the nationalised coal industry should be run. As I understand it, our interest at the moment is not whether the miners should be on strike but whether they should be conducting themselves in the way that they were conducting themselves last night. That is the question on the Order Paper. Therefore, although I am tempted to reply to the noble Lord, I simply say that the way in which the strike was conducted last night is at variance with the experience of British history, that it is contrary to the British character, that it is destructive of the Queen's peace of this country, and that it should not be tolerated.
Lord Denham: My Lords, before the noble Lord who leads for the Opposition intervenes, I wonder whether I can say something. Rules are occasionally meant to have a slightly blind eye turned to them. I think that this was probably right in the case of the right reverend Prelate and of the noble Lord, Lord Ezra, who possibly went beyond the questions that are meant to be put following statements. I wonder, however, whether from now on noble Lords can phrase their remarks in question form for elucidation from the Minister.
Lord Cledwyn of Penrhos: My Lords, may I support the noble Lord, Lord Ezra, but go one step further? The noble Lord, understandably, has confined himself to questions of law and order and condemnation of violence. There is no question but that this side of the House condemns violence completely from whatever source it comes. We were deeply disturbed and distressed by what occurred yesterday at Orgreave. Nevertheless, in view of the developing gravity of the situation and the national interest that is involved—I stress the words "national interest"—will the noble Lord at least discuss this matter with his right honourable friends? Is it not the case now—this is relevant to the question—that it is vital that the Government should intervene to seek to bring this unhappy dispute to an end?
Will the noble Lord ask his right honourable friends to consider the possiblity of an intervention by way of an independent inquiry which would look at this objectively and hear evidence from Mr. MacGregor, Mr. Scargill and other independent sources? Would be not agree that it is very much in the interest of Britain at this time that this matter should at least be tackled by the Government in a constructive way?
Lord Elton: My Lords, I am of course obliged to the noble Lord, I will give the undertaking that he wants
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because I always draw to my right honourable friends' attention the opinions and views of your Lordships expressed in this House, and I note appropriately the level of enthusiasm with which they are given. What I am seeking to do is to avoid this spilling into a debate on energy or coal policy which it would not be proper to have now. I am therefore putting myself at a disadvantage by not replying to some of the fairly telling points made on the other side, and which I am tempted to do and could put myself in a better light if I did. Of course, I give that undertaking.
Lord Boyd-Carpenter: My Lords, can my noble friend tell the House whether consideration has been given to the legal responsibility of those who organise very large gatherings outside premises that are not their normal place of work and which bear no resemblance whatever to the peaceful picketing that our law recognises?
Lord Elton: My Lords, the question of law enforcement is, in a situation like this, continually under review. It may be useful, although I cannot list every provision of the criminal law that may be used, not all of them in relation to the leaders or godfathers of these events, to give the example that any unlawful infliction of violence against the person is a criminal offence. Violence against property is dealt with under the Criminal Damage Act 1971. Obstruction of the highway or of the police are criminal offences, and there is a range of offences of intimidation. Conduct conducive to a breach of the peace is an offence, and there are the common law public order offences of affray, unlawful assembly and riot. But my noble friend has rightly pointed a finger at those responsible who are supposed to be leading a responsible national body and who, with every intention of causing a vast assembly of their membership at one place, cause it to take place in the full knowledge that its intention is to stop a lawful procedure which the police will be bound to protect, It seems to me that the consequences that flow from that decision must lay a very heavy burden of responsibility indeed upon those who take it.
Lord Molloy: My Lords, is the noble Lord the Minister aware that come what may, at some time, full cognisance will have to be taken of the submissions made by my noble friend Lord Mishcon, in such a sober and sane manner, supported by the noble Lord, Lord Ezra? Will the noble Lord also bear in mind that there is another element which has not been mentioned and which many people might have seen on television last night in those horrible—those almost unbelievably horrendous—scenes? I come from a coal mining area. I know the solidarity of coal mining folk. It is perhaps not appreciated in this House, but every meeting of a branch of the National Union of Mineworkers, certainly in South Wales, is always preceded by prayers. This is apropos the point mentioned by the right reverend Prelate. The point I wish to make is this. The final scene on television last night gave us a ray of hope. It was of a senior police officer shaking hands with a miner (who was stricken and bleeding) and agreeing when the miner said that many of those who had started the violence were in no way connected with the picketing or with the miners themselves. Surely, this point must be taken as encouraging by both police and miners.
Lord Elton: My Lords, if the noble Lord's question was: "does Her Majesty's Government think that wherever possible enmity should be turned into friendship, and that those who protect the law and those who live under it should be on the same side in maintaining order in our society?", the answer is unequivocally, yes.
Lord Hankey: My Lords, did not Mr. Eddie Shah show how to deal with situations of this sort, and has not the law been strengthened since then?
Lord Elton: My Lords. I think that the circumstances were a little different.

Housing and Building Control Bill
4.7 p.m.
Consideration of Commons amendments and reason resumed.

COMMONS AMENDMENTS
The Commons made the following consequential amendments to the Bill:
13 Page 3, line 16, leave out ("subsection (I) above and the provision made by subsection') and insert ("subsections (I) and")
14 Page 8, line 18, leave out Clause 7.
15 Page 22, line 11, leave out ("18A(2) or')
Note: the references in amendment 15 are to Bill (159)]
16 Page 63, line 32, leave out ("18A(1) or")
17 Page 68, line 27, leave out ("18A(1) or")
18 Page 85, line 10, leave out paragraph 10.
19 Page 88, line 29, leave out from beginning to ("shall") in line 32 and insert ("Part 1V of Schedule 2 to that Act (charges and other matters) ")
20 Page 90, column 3, leave out lines 48 and 49.
Lord Bellwin: I beg formally to move that this House doth agree with the Commons in their consequential Amendments Nos. 13 to 20.
Moved, That this House doth agree with the said amendments.—(Lord Bellwin.)
Lord Hatch of Lusby: My Lords, although the noble Lord, Lord Bellwin, has moved the amendments formally, I intervene because, quite unconsciously—I hasten to say this immediately—he concluded Commons Amendment No. 12 before I had had the chance to intervene following the speech of the noble Lord, Lord Molson. This is not the time to repeat the arguments that we have had about the whole of this issue including the consequential amendments to Amendment No. 12. Like my noble friend Lady Birk I consider that this is a victory for the whole House, for all Benches of the House, in defence of the security of elderly people. I should like however to put three points to the noble Lord, if he feels able to answer them. Am I correct in the assumption that it is within the full power of the Secretary of State, and the Secretary of State alone, to determine whether or not those houses designed for elderly people shall be available for sale?
Secondly, if that is the case, will the noble Lord suggest to his right honourable friend that the figures for acceptance and rejection of applications made by councils on behalf of these houses should be published at least monthly? As the noble Lord, Lord Molson, pointed out, the figures that we were given, both for
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rejections of applications for rural areas and for the exemption of houses, were totally unsatisfactory. Can we have the figures at least monthly so that they may be examined and the Government questioned on them regarding both applications for designation as rural areas and applications for exemption of those houses made by councils on behalf of elderly people?
Thirdly, the noble Lord mentioned the guidelines that he or his right honourable friend is to issue to local councils. I am sure we all welcome the fact that there will be consultations with the organisations. But will be or his right honourable friend also take into his confidence Parliament itself, and will be publish some form of preliminary guidelines so that these may be discussed before they are finalised, in order that the final say, the final word, rests with both Houses of Parliament?
Lord Bellwin: My Lords, I said to my noble friend Lord Molson, and I say again to the noble Lord. Lord Hatch, that I am not going to reopen two years of debate at this stage when we are considering these Commons Amendments.
On the last point, if the noble Lord, Lord Hatch, had been taking careful note, he would be aware that I stressed that it was welcomed that not only will there be guidelines, but that the wording of them will be discussed with the local authority associations as well as with others concerned; and that they will not be published before there has been this input. That has been agreed. That is as far as I can go towards helping the noble Lord.
Lord Hatch of Lusby: My Lords, I am sorry, but the noble Lord—
Noble Lords: Order!
Lord Hatch of Lusby:—;has not answered a single one of my questions.
Noble Lords: Order!
On Question, Motion agreed to.

LORDS AMENDMENT
21 Schedule 10, page 84, line 1, at end insert—
(" . Subsections (4) and (4A) of section 3 of the Housing Act 1980 (meaning of "house", "flat", "dwelling-house" etc.) shall have effect as if any reference to the right to buy included a reference to the right to be granted a shared ownership lease.
. Section 4(3) of that Act (joint tenants and members of family occupying dwelling-house otherwise than as joint tenants) shall have effect as if the reference to Chapter I of Part I of that Act included a reference to Part I of this Act.
.—(1) In section 5(2) of that Act (notice claiming to exercise the right to buy) for the words "three years" there shall be substituted the words "two years".
(2) The amendment made by sub-paragraph (1) above shall not apply where the landlord's notice under section 5(1) of the 1980 Act was served before the commencement of Part I of this Act.
. At the end of section 6 of that Act (purchase price) there shall be added the following subsection—
"(6) Where the secure tenant's tenancy has at any time been assigned by virtue of section 37A of this Act, the persons specified in subsection (5) above shall not include any person who under that tenancy was a secure tenant before the assignment.".")
The Commons insisted on their amendment to the Lords amendment 21 in:
Line 11, to leave out ("In section 5(2)') and insert ("After subsection (1) of section 5")
for the following Reason:
22 Because the amendment is needed in view of the amendment proposed by the Commons in line 12 of the said Lords amendment.
Lord Bellwin: My Lords, I beg to move that this House doth not insist on their disagreement to the Commons amendment to the Lords Amendment No. 21 on which the Commons have insisted for the Reason numbered 22.
Moved, That this House doth not insist on the said Amendment.—(Lord Bellwin.)
On Question, Motion agreed to.

COMMONS AMENDMENT
The Commons did not insist on their amendment to the Lords amendment 21 in:
Line 12, after ("buy)") to insert ("there shall be inserted the following subsection—
"(1A) A landlord's notice under subsection (1) above shall inform the tenant of any application for a determination under paragraph 6 of Part I of Schedule Ito this Act and, in the case of a notice admitting the tenant's right, shall be without prejudice to any determination made on such an application."
(1A) In subsection (2) of that section")
but proposed the following amendment to the Lords amendment 21 in lieu of that Commons amendment:
23 Line 12, after ("buy)') insert ("there shall be inserted the following subsection—
"(1A) A landlord's notice under subsection (1) above shall inform the tenant of any application for a determination under paragraph S of Part 1 of Schedule Ito this Act and, in the case of a notice admitting the tenant's right, shall be without prejudice to any determination made on such an application."
(1A) In subsection (2) of that section').
Lord Bellwin: My Lords, I beg formally to move that the House doth agree with the Commons in their Amendment No. 23 to the Lords Amendment No. 21.
Moved, That this House doth agree with the Commons in the said amendment.—(Lord Bellwin.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
The Commons did not insist on their amendment to the Lords amendment 21 in:
Line 14, to leave out ("(1)") and insert ("(1A)")
but proposed the following amendments to the Lords amendment in lieu of that Commons amendment.
24 Line 14, after ("above') insert ("shall not apply where the tenant's claim to exercise the right to but' was made before the coming into force of Part 1 of this Act: and the amendment made by sub-paragraph (1A) above")
25 Line 16, leave out ("commencement') and insert ("coming into force").
Lord Bellwin: My Lords, I beg formally to move that the House doth agree with the Commons in their Amendment No. 23 to the Lords Amendment No. 21. Amendment No. 21.
Moved, That this House doth agree with the Commons in the said amendments.—(Lord Bellwin.)
On Question, Motion agreed to.

Trade Union Bill
4.14 p.m.
The Earl of Gowrie: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(The Earl of Gowrie.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD JACQUES in the Chair.]
Clause 1 [Duty of trade union to hold elections for certain positions]:
Lord McCarthy moved amendment No. 1:
Page 1, line 8, leave out from ("union") to the end of line 9 and insert ("within one year after the date of commencement of this Part to propose to its members the adoption of such rules as are necessary to ensure—").
The noble Lord said: The noble Lord, Lord Bellwin, has recently been telling us about two years of debate. I can only say that it seemed like two years of debate waiting for this debate to come on. But at last we are there.
The first amendment, which it falls to me to introduce at this point, is, in effect, to modify the first clause of the Bill so as to give the unions concerned a choice—a choice which the Bill denies them. The purpose of the Bill at this point—indeed, the purpose of Part I of the Bill—is to impose upon unions a particular way of electing their national executive committee, termed in the Bill their principal executive committee. That alternative method, that system, is to elect their principal executive by a direct election, and to do it also in a very constrictive way which we intend to specify subsequently, particularly when we come to our amendments to Clause 2 of the Bill. In general terms, which is what Clause 1 of the Bill is about, it rules out any possibility of indirect elections.
That is really the crucial issue which we should like the Committee to consider at this moment—not that trade union executives should not be elected, not that they should be appointed, not even that some should be elected indirectly and some should be elected directly, but that no member of a principal executive committee of a union who has a vote—a full member of that executive—should be elected indirectly.
We are trying to raise the issue in the same way as it was attempted to raise it in another place. We want to know why it should be the case that virtually all other forms of representative assemblies, representative bodies or committees, are permitted from time to time, and in some cases entirely, to nominate people to serve upon their principal executive committee, or to elect them directly in some cases, but to elect them indirectly in others. Companies do this, universities do this, professional associations do this, and, as we in this Committee ought to consider most particularly, Parliaments do this. Parliament indirectly elects the Prime Minister, and the Prime Minister indirectly elects or appoints the entire Cabinet, who hold office at her say-so.
This is the usual way in which normal bodies work, because it is sensible and convenient to allow some posts to be filled by direct election and some people to have the right to choose, from among that number, people who they know have expertise, who are elected indirectly to serve alongside them. This works in all other systems, but it is no longer to be allowed to work in trade unions. What we really are asking is, "Why?" If it is the case that the Government insist upon it without having a reason, why not let the unions have a choice as to whether or not they want that system? The purpose of our amendment is to say, in effect, that the union, through its proper constitutional rule-making provisions, can put to the membership a choice as to whether they wish to move in the direction of Clause I and Clause 2 of this Bill, or whether they want to retain their existing systems, which in many cases are mixed systems.
One of the most remarkable things about the Government's arguments for this Bill, and for Clause 1, is that they do not make the kind of allegations—this was mentioned to some extent on Second Reading—which at least in principle would support a provision of this kind. We have not been told, and I take it that we shall not be told tonight by the noble Earl, that we must have a system of direct elections in the detailed way prescribed in Clause 2 of the Bill, because the present mixed system in trade unions is riddled with impersonation, or fraud, or corruption, or a continuation or development of the kind of isolated examples that hit the headlines when they occur; for example, the famous ETU case in the mid-1950s. Nobody has said—certainly not the Government in the Green Paper or the Minister or the Secretary of State in another place—that there is at this moment a rash of corruption, fraud, impersonation and a kind of electoral malpractice in British trade unions.
Of course, it is true that assertions are made. The Secretary of State in another place said that there was a scandalous position in some of our largest unions and that that in some sense justified this clause of the Bill. He did not tell us which unions, or how large they were; but he was certain that it was scandalous.
We have not been told—and I ask the noble Earl to tell us if he thinks that it is relevant—that this clause can be justified by various undercover suggestions or inferences that sometimes people whisper but which the Government do not put up. I am thinking, for example, of the fact that maybe those unions that have directly elected executives who go straight to the members and who do not use this dreadful principle of indirect elections, are more moderate, less militant, more likely not to go on strike and less controlled by extremist elements than unions that have mixed systems. Of course, we are not told that because it is an argument which could not stand the light of day. If you take unions like the GMBATU, the TSSA and so on, which have indirect systems, and compare them with other unions like TASS, which have direct systems—or, indeed, compare them the other way round—you cannot find any correlation in terms of the degree of militance or moderateness. It does not seem in any way connected—indeed, why should it be?—with whether you have the system of direct
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elections or the system of mixing direct with indirect, which everybody else does and which everybody did until the Government tried to impose this provision on the trade union movement.
Therefore, we are suggesting in this amendment that union members should be given a choice; that through the constitutional processes of their unions they should be allowed themselves to decide whether they want to move in the direction of a system of universal direct elections or (if they are the 40 per cent. or so of trade unions that do not have that system) whether they wish to retain their present system, whatever that system may be. If the Government have particular objections to the way in which we have framed this amendment, then let me say that we are not necessarily committed to the words. However, we are committed to the principle. We have other amendments down, and so do other noble Members of this House, which will follow this amendment and which advance the argument of choice in another way.
At the end of the day we are, in this amendment, trying to take the Government at their word. When the Government have been asked what this Bill is about they have said throughout that they are giving the unions back to the members, that they are giving the members the choice. All right: that is what this amendment does and the Government should support it. I beg to move.
Lord Campbell of Alloway: This opting-out amendment reflects the question put to me by the noble Lord, Lord McCarthy, on Second Reading. If the amendment were carried and if the opting out facility were to be adopted on any significant scale, the intendment of this Bill will be undermined. The superimposition of the Part I duty forms an essential and an integral part of these proposals, which are so long overdue, to reform the internal management of trade union affairs.
Furthermore, one cannot lose sight of the interaction between Part I and Part II of this Bill. The machinery for electing the quality of the man who makes the decisions as to calling industrial action under Part II, is set up by Part I. Under both these parts a degree of self-regulation is accorded to the officers of the trade unions. The quality of the man who is elected under Part I is important, because he may use the result of a ballot in favour of taking industrial action not to take it, but rather to negotiate with the employers. Alternatively, he may decide that the majority is too thin, and so forth. Therefore, the quality of the decision taken under Part II is reflected by the electoral system under Part I. I suggest that it would be quite wrong for there to be acceptance of these general opting-out provisions.
Lord Vaizey: I have a fundamental difficulty with the argument put forward by the noble Lord, Lord McCarthy. Judging by the great pile of papers which the noble Lord has brought with him, we shall hear the same argument frequently. He asked: why should not the unions have a choice? The fundamental difficulty which I have concerns the question, "What is the union?" Until they have had proper elections there is no possibility of saying who the union actually is; it means, I take it, the present body of people who say

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that they are the union. This whole aspect runs right through every single word that has been said so far on this Bill and on previous Bills. I am sure that it will run right through Bills in future. That, to my mind, is a sufficient and complete answer to the arguments that have been advanced.
Lord Howie of Troon: As we have discussed trade union legislation from time to time over the last several years, noble Lords will have realised that I am in no way averse to passing a law in this area. I do not object to legal restraints and restrictions upon trade unions, but I should like to refer to one point which was raised by the noble Lord, Lord Campbell of Alloway. If I heard the noble Lord correctly, he said that if the first amendment of my noble friend Lord McCarthy were to be agreed to today—or even later—it would undermine the intention of the Bill. I think that that was what the noble Lord said. That really prompted in my mind the question of what is the actual intention of the Bill. That is something about which we should think constantly throughout our deliberations.
I do not take the rather severe view which some of my noble friends take; namely, that the Government's intention is to destroy the trade union movement. I do not think that that is true at all. However, if we take the Government's assertion that their aim is to return the trade union movement to its members, then the question of their attitude towards my noble friend's amendment raises itself. Is it really the Government's intention here to return the unions to their members, or is it the Government's intention to insist upon one specific and particular mode of election as though that were the only mode of election that we could possibly have? We know perfectly well that there are thoroughly reasonable and decent democratic institutions which are elected by a variety of methods of franchise. While we support secret ballots and all the things which the Government want, we do not necessarily agree that there is only one way in which union executives, and so on, can be elected.
If the Government are serious in suggesting that the unions should be returned to their members, then that question in a way answers the question asked from the Benches opposite about who is the union, because the union is its members. That is what the union is and that is what it always has been. My noble friend's proposal permits the union membership, the individual members, to decide in what way their rules can be arranged to suit the ultimate aim of the Government. It is not enough just to say that they shall run their affairs in the way in which the Government say and in no other way. It is only sensible that the members of the unions should have proposals put to them and that they should be allowed to decide whether their own way of running their own affairs is democratic, provided of course that the rules under which these decisions are made fit the rules of freedom, secrecy, and so on, which the Government quite rightly want.
Lord Denning: I hope that your Lordships will not accept the amendment. It suggests that proposals should be put before the membership either for excluding the proposed new method of balloting or that there should be other amendments to get a
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majority. These proposals need amendment of the rules of the union. If I may say so, one has to look into the law books to see how the rules of a union are to be amended.
The common law says that it is a voluntary association by which all the original members are bound and the rules cannot be changed except by agreement of all the members. Most union rules have a provision for alteration, and in his book Lord Citrine says how careful the unions must be in prescribing machinery for altering the rules. He says that snap decisions might be taken and the rules might be altered unjustifiably. But he says that the proper way to alter the rules of most unions is by a postal ballot of the members. Sometimes that can be done at a conference. Perhaps every year or every two years the rules can be altered, but they are not voted upon by all the members. They are voted upon by all the delegates who find themselves there, not having been properly elected throughout. He says that that is an unsatisfactory method of altering the rules and that the right and best way to alter them is by a postal ballot of the membership.
As I understand these amendments, they do not go anywhere near that suggestion; they do not say how the rules are to be amended by the union or the like. Amendment No. 6 brings in Section 1 of the Trade Union (Amalgamations, etc.) Act, 1964. A great deal of protection is given to the ordinary member before the rules can be altered in that way, even about amalgamation. I shall not go into that further now. But I believe that this amendment is quite misconceived and that it does not give proper effect or ensure that the altering of a union's rules is carried out properly. I hope that your Lordships will not accept it.
Lord Rochester: I should like to follow the noble and learned Lord, Lord Denning, in what he has said. As the Committee will learn from later amendments, I am not necessarily opposed to the principle of indirect as opposed to direct elections for the principal executive committees of trade unions. But as I understand it, this amendment seeks only to place proposals before trade union members for their consideration. It makes no provision for the exclusion of Part I of the Bill by means of secret postal ballots; nor does it make provision for electoral arrangements, once adopted, to be reviewed at periodic intervals to see whether the union members agree that they should remain in being or be altered to conform with the Government's proposals under Clauses 1 and 2 of the Bill. For those reasons I am afraid that I, too, am not in a position to accept this amendment.
The Earl of Gowrie: I welcome the chance offered by the noble Lord, Lord Howie of Troon, and the noble and learned Lord, Lord Denning, to enable us to concentrate for a moment on the effect of this amendment. The efficacy of the amendment—if it has efficacy—obviously depends on understanding precisely where it lies in the Bill. It lies in Clause 1. Clause 1 of Part I of the Bill is the cornerstone of the Bill and deals with union elections. It imposes a duty on every trade union to ensure that all voting members of its principal executive committee are elected at least every five years by secret ballot. The other issues fall

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within the subsequent clauses of Part I and deal with the conduct of ballots, with enforcement procedures exemptions, and the like.
The amendment that we are considering would replace the duty currently imposed on trade unions by Clause I to ensure that all voting members of the principal executive committee are elected at least every five years by secret ballot, with a duty to propose to the members, within a year of the legislation coming into force, the adoption of rules embodying the provisions of the legislation. In effect, that would make the statutory requirements optional. As the noble Lord, Lord McCarthy, in moving the amendment told us, it would in effect seek to allow unions to choose whether or not they should be bound by Part I of the Trade Union Bill. Variants of this idea have been debated in the other place, but it still seems to me that, in spite of those debates, this is a very novel idea indeed.
Legislation is not normally optional, and it seems to me that there really would have to be exceptional circumstances for making it so. On Second Reading I laid considerable emphasis on the principle that one should measure these rather modest requirements against the enormous privilege of immunity against the amount of legislation which polices or circumscribes company legislation. In this context we do not allow our companies to opt out of company law on the basis of a vote by shareholders. Nor do we allow our employers to opt out of employment protection legislation.
Lord Wedderburn of Charlton: In regard to the election of directors—which is the parallel—would the noble Earl accept that companies, by way of a resolution of shareholders, can indeed opt out of Table A of the 1948 Act, which sets up a model?
The Earl of Gowrie: More is involved in this legislation than the election of officers in particular. This is the point that I shall seek to argue in a minute. The idea that one should bring forward legislation which is, in effect, optional is a somewhat novel concept, and whatever the merits of the argument—and I do not happen to share the noble Lord's views—I think it would be agreed between us that this would be a novel idea.
Therefore, in facing this fact head-on, the noble Lord, Lord McCarthy, has sought to argue that the Trade Union Bill is a special case. He has sought to show on several occasions that this is a legal straitjacket which will steamroller trade union individuality and destroy the freedom which unions have enjoyed over the past century or more. But the fact of the matter is—and the very purpose of the Bill is—that we do not seek to stifle trade union freedom but to enhance it. There is no straitjacket here; the Bill does not lay down chapter and verse about the conduct of elections; still less does it lay down standard electoral rules. For instance, it says nothing about how many members there should be on union executives, nor about how executives should be structured to reflect the composition of the membership, nor about whether executives should comprise lay members, full-time officials or some combination of the two. It does none of those things.
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The Bill seeks to lay down a few fundamental democratic principles of what I should have thought were a wholly unexceptional character; namely, that voting members of union executives should be directly elected at least once every five years; that in those elections voting must be secret and by ballot paper; that those voting must be allowed to do so without interference or constraint and must have a convenient opportunity of voting; and that votes must be fairly and accurately counted. They do not seem to me to be iniquitous impositions. I would also be interested to know which of those principles noble Lords opposite think union members might wish to reject.
The amendment gives no guarantee that union members would be consulted in such reliable and democratic ways. All that a union would have to do under the amendment—and I am quoting from it—is
"to propose to its members the adoption of such rules as are necessary to ensure"
that union leaders are elected regularly and by secret ballot. As I read that, this would be a once and for all consultation exercise and would not even have to be repeated every few years.
Furthermore, the Committee has been given no idea by the noble Lord how the consultations would be conducted. Would so important a matter be relegated to some low item on a conference or branch meeting agenda, or would it be simply debated at some rules revision conference at which the majority of delegates would be, to put it at its most polite, specialists? Would it be put to a vote, perhaps by a show of hands? We shall be dealing with the methods of voting later.
The amendment seeks to replace this carefully drafted Bill, which has been the subject of extensive consultation and which we believe has the majority of trade union members behind it, with this optional chimera. The truth is that trade unions have had ample time to propose electoral reforms to their members through their own internal procedures rather along the lines suggested by the noble Lord, Lord McCarthy, but historically and recently they have failed to do so. They have had the offer of Government money to make this task un-onerous. It has been there for the taking since 1980 and they have chosen to ignore it. So the time has now come for legislation, and neither the Government nor ordinary trade union members should be bought off with vague promises on the part of unions, as the amendment suggests, to consider our proposals and seek their members' views.
The noble Lord, Lord McCarthy, has in the context of this amendment raised a question of great importance, which is whether the Bill should provide for indirect as well as direct election to union governing bodies, and I make no objection to the fact that he has brought it to the Committee's attention. Later amendments, Nos. 4, 5 and 7, raise this question more specifically and will enable us to look at the Bill's provision more directly. Having said that, I do not want to suggest that this is an argument solely about practicality and pragmatism.
A major point of principle is involved. The major point of principle is that the Government believe that it is fundamental to a proper system of democracy and trade unions that those union leaders who take decisions on behalf of their members should be

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directly elected by those members. Only in that way can the members be certain that they can exercise effective control over those who speak and act on their behalf.
I believe that I have demonstrated therefore that the amendment is unjustifiable. It is based on the assumption that the Bill is rigid and oppressive whereas it is in fact extremely flexible and modest—indeed, too modest for some of my noble friends. It is based on the assumption that existing electoral arrangements in trade unions are fair and democratic, and the amendment is based on the assumption that there is no desire for change on the part of union members. Surely these assumptions are entirely false and cannot be substantiated. I would therefore ask noble Lords to oppose the amendment.
4.45 p.m.
Lord McCarthy: I should like to briefly reply to some of the points raised. The noble Lord, Lord Campbell, if I understand him, says that this amendment would not simply undermine Part I of the Bill but also Part II of the Bill. I do not think so. Part II of the Bill could exist entirely on its own. It is a restriction on the right to strike. The sanction is the sanction which might be brought by either an employer or an injured third party. It does not depend on there being a Part I of the Bill at all. If you say that this amendment undermines Part I of the Bill, yes, that is what it is intended to do. It is intended to make Part I of the Bill optional, yes; flexible, yes. If that is undermining the intention of Part I of the Bill, that is the object of the exercise.
I can explain to the noble Lord, Lord Vaizey, why I have more papers than he has. I intend to be here rather longer. I intend to see the Bill through. The noble Lord says that the trouble with our amendment is that we are only putting this issue to what he calls the present body of the union. With great respect, this is what we are up against in this Bill, and it might as well be mentioned here. It is now represented by many people that any system of trade union democracy must throw up unrepresentative people who represent nobody—"Nothing but direct elections. Nothing but a system of universal plebiscites is going to create trade union democracy. Where six trade union representative are gathered together, they are selling the members down the river".
We do not need evidence for this. This is solemnly put forward by people who say, without any further evidence. "If you want to run something by reference to the constitutional methods of the union, that is the present body of the union and must be suspected because of it". Without evidence there is not much one can do with arguments of that kind, except to say, as the noble Earl said, that subsequently we have amendments, and other people have amendments, which go beyond the existing body of the union and actually go to the members to give the choice—which is the principle behind this amendment—to the members.
I come to the noble and learned Lord, Lord Denning. I hesitate to disagree with him. If I understand him aright he seemed to be saying at some stage that this Bill requires the unions to change their
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rules, and that our amendment would require the unions to change their rules, and that you have to be very careful before you ask unions to change their rules.
Lord Denning: May I say that it was only the amendment which I thought sought to make the unions change the rules, not the Bill itself. The Bill itself is operating over and above the rules.
Lord McCarthy: Exactly. So is the amendment. We are not suggesting in our amendment that you would have to change the rules. We are saying in our amendment that you would use your existing rules, your existing constitutions, in order to decide whether or not you wished to be bound by Clause 1 of the Bill, so you would not need to change your existing rules.
All I would say to the noble Lord, Lord Rochester, is that I agree that we have his amendment to come. If he does not like our amendment I shall be quite happy to vote for his because I want to see an element of choice. If we go to the members for that choice rather than doing it through the rule book, so be it. I want an element of choice.
I come to what the noble Earl said. I shall leave aside, if I may, because we are going to come to it so many times, all the stuff about degrees of immunity. With Part II of the Bill, there will be virtually no immunities left. How the degree of immunities can justify a particular form of democracy, we are never told. However, no doubt we shall be going over the ground about immunities subsequently.
I would rather stop on the point that the noble Earl made about indirect elections. If he is saying that he might take a slightly more flexible attitude towards the extremely unselective, rigorous and, we believe, unfair way in which this Bill insists on direct elections, if he is telling me that subsequently the Government might bend on direct and indirect elections, then I might feel disposed to remove this amendment. Otherwise it stands.
4.50 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 60; Not-Contents, 167.

DIVISION NO. 1

CONTENTS

Ardwick, L.

Ennals, L.

Barnett, L

Ewart-Biggs, B.

Bernstein, L.

Gaitskell, B.

Beswick, L.

Gallacher, L.

Birk, B.

Gifford, L.

Blyton, L.

Glenamara, L.

Boston of Faversham, L.

Graham of Edmonton, L. [Teller.]

Briginshaw, L.

Brockway, L.

Hale, L.

Brooks of Tremorfa, L.

Hatch of Lusby, L.

Bruce of Donington, L.

Howie of Troon, L.

Carmichael of Kelvingrove, L.

Irving of Dartford, L.

Cledwyn of Penrhos, L.

Jacques, L.

Collison, L.

Jeger, B.

David, B. [Teller.]

Jenkins of Putney, L.

Dean of Beswick, L.

John-Mackie, L.

Donnet of Balgay, L.

Kirkhill, L.

Elwyn-Jones, L.

Listowel, E.

183

Lockwood, B.

Stallard, L.

Longford, E.

Stoddart of Swindon, L.

Lovell-Davies, L.

Stone, L.

McCarthy, L.

Strabolgi, L.

McCluskey, L.

Taylor of Blackburn, L.

Milford, L.

Taylor of Mansfield, L.

Mishcon, L.

Underhill, L.

Molloy, L.

Wallace of Coslany, L.

Nicol, B.

Wedderburn of Charlton, L.

Northfield, L.

Whaddon, L.

Oram, L.

Willis, L.

Phillips, B.

Wilson of Rievaulx, L.

Ponsonby of Shulbrede, L.

NOT-CONTENTS

Airedale, L.

Glanusk, L.

Allerton, L.

Glenarthur, L.

Amherst, E.

Gowrie, E.

Ampthill, L.

Gray of Contin, L.

Attlee, E.

Greenway, L.

Auckland, L.

Grey, E.

Avon, E.

Gridley, L.

Aylestone, L.

Grimond, L.

Banks, L.

Hailsham of Saint Marylebone, L.

Bauer, L.

Belhaven and Stenton, L.

Halsbury, E.

Bellwin, L.

Hampton, L.

Beloff, L.

Hankey, L.

Belstead, L.

Hanson, L.

Berkeley, B.

Hanworth, V.

Bessborough, E.

Harris of Greenwich, L.

Braye, L.

Hives, L.

Broxbourne, L.

Home of the Hirsel, L.

Bruce-Gardyne, L.

Hornsby-Smith, B.

Burton of Coventry, B.

Hunter of Newington, L.

Buxton of Alsa, L.

Ironside, L.

Caithness, E. [Teller.]

Kilmarnock, L.

Campbell of Alloway, L.

Kinloss, Ly.

Campbell of Croy, L.

Kinnaird, L.

Carnegy of Lour, B.

Kinross, L.

Chelmer, L.

Lane-Fox, B.

Chelwood, L.

Lauderdale, E.

Chitnis, L.

Lindsey and Abingdon, E

Cockfield, L.

Lloyd of Hampstead, L.

Coleraine, L.

Long, V.

Colwyn, L.

Lucas of Chilworth, L.

Cork and Orrery, E.

McAlpine of West Green, L.

Cottesloe, L.

MacLehose of Beoch, L.

Craigmyle, L.

Macleod of Borve, B.

Craigton, L.

Mancroft, L.

Cranbrook, E.

Mar, C.

Croft, L.

Massereene and Ferrard, V.

Cromartie, E.

Maude of Stratford-upon- Avon, L.

Dacre of Glanton, L.

Daventry, V.

Mayhew, L.

Davidson, V.

Merrivale, L.

De La Warr, E.

Milverton, L.

De L'Isle, V.

Minto, E.

Denham, L.

Monson, L.

Denning, L.

Moths, L.

Diamond, L.

Mottistone, L.

Digby, L.

Northchurch, B.

Dilhorne, V.

Nugent of Guildford, L.

Donaldson of Kingsbridge, L.

Onslow, E.

Dulverton, L.

Orkney, E.

Eccles, V.

Orr-Ewing, L.

Ellenborough, L.

Perry of Walton, L.

Elles, B.

Porrit, L.

Elliot of Harwood, B.

Portland, D.

Elton, L.

Radnor, E.

Errol of Hale, L.

Renton, L.

Evans of Claughton, L.

Renwick, L.

Ezra, L.

Richardson, L.

Faithfull, B.

Roberthall, L.

Fanshawe of Richmond, L.

Rochdale, V.

Foot, L.

Rochester, L.

Fortescue, E.

Rodney, L.

Fraser of Kilmorack, L.

St. Davids, V.

Gainford, L.

Saint Oswald, L.

Gardner of Parkes, B.

Saltoun, Ly.

Gladwyn, L.

Sandford, L.

184

Sandys, L.

Thomas of Swynnerton, L.

Savile, L.

Tordoff, L.

Selborne, E.

Tranmire, L.

Sempill, Ly.

Trefgarne, L.

Shannon, E.

Trumpington, B.

Shaughnessy, L.

Tryon, L.

Simon, V.

Ullswater, V.

Somers, L.

Vaizey, L.

Spens, L.

Vaux of Harrowden, L.

Stamp, L.

Vickers, B.

Stodart of Leaston, L.

Walston, L.

Strathspey, L.

Westbury, L.

Sudeley, L.

Whitelaw, V.

Swansea, L.

Wigoder, L.

Swinton, E. [Teller.]

Winchilsea and Nottingham, E.

Taylor of Gryfe, L.

Taylor of Hadfield, L.

Winstanley, L.

Terrington, L.

Wise, L.

Teviot, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.59 p.m.
Lord McCarthy Lord McCarthy moved Amendment No. 2:
Page 1, line 8, leave out ("(notwithstanding anything in its rules)") and insert ("(unless it has adopted or, as the case may be. reconfirmed rules which expressly exclude this Part by a resolution approved by a majority of its members which satisfies the conditions of subsection (I A) below)").
The noble Lord said: I want to take this amendment and speak also to Amendment No. 6, which is part of the same argument.
Amendment No. 6: Page 2, line 5, at end insert—
("(1A) The conditions are—

(a) that such a resolution was first passed within two years of the date of the coming into effect of this Part and has been adopted or, as the case may be, re-confirmed by resolution within a period of five years before the date of any complaint or application made under this Part; and

(b) that the voting on the resolution satisfies the conditions in section 1(2) of the 1964 Act; and

(c) that any complaints in respect of such resolution (and appeals in respect of such complaints) shall be determined in the same manner as complaints under section 4 of that Act (complaints to Certification Officer).").

In this amendment we are trying to meet two of the criticisms which, funnily enough, we surmised correctly might be made about the last amendment. That is to say, we are offering a choice in the same kind of fashion to the members whether or not they wish to come under the provisions of Clause 1 of the Bill, but we are meeting the point that under our previous amendment we were thinking in terms of a once-and-for-all choice. After all, who is to say that the members might not change their minds?
Under the terms of this amendment they must pass a resolution on the status quo within two years and they must reconfirm that decision each five years. But because there are about people who think that a democratically constituted union which has representatives and uses the same system of government as we do in this House naturally represents nobody, we are suggesting that this choice should go straight out to ballot. For this purpose we are using the plebiscite. We are using a tried, helpful and acceptable system—the technique of balloting established under the Trade Union (Amalgamations, etc.) Act 1964. This largely repeated similar techniques from previous amalgamation Acts; that is to say, the techniques for consulting and balloting members when one union merges or amalgamates with another. They are regulated by

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Section 1(2)(b) of the 1964 Act, which states that every member must be allowed to vote without interference or restraint. In that way it is rather similar to passages in the present Bill. It states that, so far as is reasonably possible, each trade union member shall be given a fair opportunity to vote, and it establishes a well-developed system of complaints to the certification officer if there is reason to believe that the ballot has been incorrectly conducted. A trade union member can complain, and he has six weeks in which to complain after the declaration of the election. He can appeal to the certification officer and from the certification officer to the employment appeals tribunal on a point of law.
We are suggesting that this is a tried and established system. It overcomes the substance of the main plausible objections to our previous amendment; namely, that it is done repeatedly, and that it goes directly to the members. I beg to move.
Lord Denning: There is one extra provision in Section 1(2) of the 1964 Act. The noble Lord mentioned certain provisions of it—that every member should be entitled to vote; and that every member should have a voting paper which he could mark. But there is also the important provision that every member had to be given seven days previous notice, and that all reasonable steps had to be taken to give every member reasonable notice of what was proposed. Seven days notice had to be given before the ballot was held. "All reasonable steps" were to be taken to give every member notice of what was proposed before the voting took place. But there is no definition of what are "all reasonable steps". "All reasonable steps" has never been construed, as I know, by the court. But I should have thought that on a matter of much importance to take "all reasonable steps" to tell every member what was the proposal would involve a postal ballot. It seems to me that on an important change such as an amalgamation "all reasonable steps" would include a postal ballot and would not include anything less.
Lord Campbell of Alloway: Leaving aside the issue of a postal ballot, which I understand we shall have an opportunity to debate on its merits on a subsequent amendment, why should this facility, or any facility to opt out of Part I, be accorded? Is the reason the one advanced by the noble Lord, Lord McCarthy, at column 1292 of the Official Report during the Second Reading debate? He then said that it will mean,
"in every union an uncertain and unpredictable change in the existing power balance".
Is it because this shift in the power balance could affect the measure of financial support available at present to the Labour Party from the political levy contributions that this facility in some form or other is pressed? It is at this point that Part I, which I insist does impinge on Part II, also relates to Part III of the Bill.
5.6 p.m.
The Earl of Gowrie: As my noble friend Lord Campbell of Alloway has just reminded us, these amendments are very similar in their combined affect to Amendment No. 1, which we have just debated. Like Amendment No. 1, their purpose is to make it possible, in my noble friend's words, to opt out of Part
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I of the Bill. The only difference is that these amendments—I can at least say this good for them—pay some heed to the democratic rights of trade unionists by proposing that union members be consulted both regularly on whether they wish the Bill to apply to them and by secret ballot. I can of course say to the noble and learned Lord, Lord Denning that, yes, indeed, we shall be discussing the method of balloting at a later stage.
That said, we are back again to the fundamental question of why trade union members should want to exempt themselves from this legislation. In this connection, the noble Lord, Lord McCarthy, in regard to both these amendments and Amendment No. 1, has rested his case on the alleged unreasonableness and restrictiveness of the requirements on elections. If that were the case, I might have some sympathy with the noble Lord, and a self-exemption scheme of the kind he has in mind might make some sense. For instance, if this legislation, by prescribing very detailed or uniform provisions, had directly required changes in union rules and electoral arrangements, it might have been reasonable to allow trade union members to vote as to whether they wanted to accept those provisions or to carry on with their existing arrangements if they could show that they were reasonable. But the fact of the matter is that, in the context of the present Bill, a scheme of the kind proposed in these amendments would involve opting out of the very basic principles and the very unexceptional ones that I outlined when I addressed myself to the previous amendments. That is because the legislation has quite deliberately taken the route of putting forward only the fundamental principles which must be observed.
In connection with both this amendment and the previous amendment the noble Lord has tried to show that this is in some way a doctrinaire approach and that the evidence is not there that trade unionists have been consulted as to whether they want such reforms to their trade union. But a massive consultative exercise took place at the ballot box just over a year ago and the result was surely decisive. Fewer than 40 per cent. of trade unionists voted for the Labour Party and 60 per cent. voted for parties—I am not therefore making a narrow party point of my own here—committed to introducing secret ballots for the election of union leaders. Subsequent opinion polls have confirmed this pattern. For instance, the MORI poll conducted for the Daily Star in September last year showed that 83 per cent. of union members favoured secret ballots for the election of union governing bodies.
I can also refer in connection with abuses such as the block vote, outlawed by this legislation, to no less an authority than Mr. Sid Weighell, the former general secretary of the National Union of Railwaymen. He seems to me to be really the kind of person to whom the noble Lord, Lord McCarthy, must address his remarks, as well as, of course, to your Lordships. In his recent book, On the Rails, Mr. Weighell wrote—and I am quoting him:
"The NUR electoral system is open to abuse. Indeed, I believe it needs only half a dozen dedicated people to take over any branch in the union. There are some branches that do not even meet at all. The block vote system of voting in the NUR does not really stand serious examination because the votes of all the members of the branch whether they turn up or not are cast for one individual candidate.

187
This means, for example, that an NUR branch might have 300 members of whom only ten might go to the meeting where the election is held and of that number six might vote for one candidate and four for another. But all 300 votes would go to the winner in the contest".
Despite this, block voting is still a feature of the electoral landscape in many unions, including not just the NUR, but also COHSE, the General Municipal, Boilermakers and Allied Trades Union, NUPE and USDAW; so in spite of the small concessions made to democracy in these amendments, I must ask you to reject them for the same reason as you rejected Amendment No. 1. The standards set by the Bill for union elections are reasonable, flexible and quite self-evidently desired by the great majority of union members. The abuses which they will eliminate, such as the block vote and voting by show of hands at branch meetings, are quite simply indefensible. There can be no justification for making such standards optional, just as there could be no justification, for example, for making the secrecy of the ballot optional in a parliamentary election. The time for these reforms has come; they are widely supported and union members do not wish to see them further delayed; and so I ask your Lordships to reject the amendments.
Lord McCarthy: The noble and learned Lord, Lord Denning, I thought was saying he rather liked the amendment in the sense that it went to the machinery of the 1964 amalgamation Act. If he says to me that necessarily means that our amendment, if passed, would involve a postal ballot, I say I would accept that, if that be what the 1964 amalgamation Act means. That is a matter for someone to establish, if they wish, by challenging a decision of a union either on amalgamation or, if this Bill went through, on a decision under that provision, and going to the certification officer; and if they did not like the decision they got from the certificating officer they could appeal against that decision. I would abide by whatever it is the court says is meant by the 1964 amalgamation Act, and if that means a postal ballot, so let it be a postal ballot. We are not against postal ballots.
I think that we are probably going to have the argument between myself and the noble Lord, Lord Campbell, about the connection between Parts I and II of this Bill dragging on into the small hours. I will not go into that now, but rather I would simply say that when I said at Second Reading—and this is a point of some substance—that I was worried (and that was not the only reason I was worried) about Part I of the Bill because, I think he said, of the uncertain and unpredictable change in the power balance of the British unions, I was not thinking about the party power balance. The damage to the party power balance is being done in Part III of the Bill and we will come to that in due course. I was talking about a union like the GMBATU, or a union like the T & GWU, or like ASTMS, because I would argue that whereas direct elections of a principal executive committee suit certain types of union, and particularly those with a highly cohesive and coherent centre of activists like the AUEW, who use full-time trade union officials and put them on their executive, these systems of universal direct election without indirect election do not suit
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large conglomerates. They will break up the GMBATU and cause considerable damage also to the T & GWU.
It is not an accident that unions of a certain kind use direct elections to their executive, and unions of a different kind do not universally use direct elections and nothing else. It has a great deal to do with union structure, with occupational nature, and with the way in which the union grew up historically. What you destroy when you destroy the balance in the GMBATU is one of the most efficient, stable and moderate trade unions in the country. I do not intend to press this to a Division. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Jacques): The next amendment is Amendment No. 3. If this amendment is agreed to I shall not be able to call Amendments Nos. 4 and 5.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 3:
Page 1, line 10, leave out paragraphs (a) and (b) and insert—

(a) that more than half of the voting members of its principal executive committee (the "majority members") hold their positions by virtue of having been elected as such members at elections in relation to which section 2 of this Act has been satisfied;

(b) that no majority member remains such a member for a period of more than five years without being re-elected at such an election;

(c) that the method of election of such number of other members of that committee as the rules may specify (being less than half of the voting members) shall be determined by the rules except that no such person shall serve as such member for a period of more than five years without being re-elected at such an election.").

The noble Lord said: We now come to further amendments testing the extent to which the Government are insistent that their comprehensive method for direct election to the principal executive committee is the only method of democracy which shall be permitted to trade unions. It is part of a new campaign to control the autonomy of trade unions, and this amendment does not challenge that completely, but it does attempt to inquire how far the Government are prepared to go. In simple terms, the amendment is saying that if the Government impose their will with 51 per cent. of the executive elected by their method, why should not the union members, to whom the choice should be handed, at least not have the right and power to elect 49 per cent. to suit the methods of their organisation?
In approaching this Committee stage myself, I would wish to say that sometimes on these employment Bills, and indeed some others, one hears voices in your Lordships' Chamber which appear to suggest that there is some virtue in a matter that combines profound policy and technicality of law in not knowing much about the law in order to have a good go at the policy. That is not a view that I share. I think this is a matter of very difficult law and very difficult trade union practice.
Why are the Government pushing their view in the face of the clear finding of the Donovan Commission in 1968—and I quote:
"That it is not practicable to prescribe a set of model election rules which would be suitable for every trade union".

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It is that finding of the Donovan Commission which has been sustained in varying ways by subsequent research, especially by the recent research of Mr. Undy and Dr. Martin (well known to the Government) and which the Government have been unable to match in regard to the issues that arise. For example, the Government's position that they must control the method of election completely and by the one method in Clauses 1 and 2 in great detail does not guarantee a higher turnout, as the research shows. It may or may not. This method does not guarantee greater accountability. The research shows that it may or it may not. It is not prompted by any major scandals or malpractice; we have been over that—the chance has been offered and it has not been met. It does not correlate in any way with support for the Labour Party, as the noble Lord, Lord Campbell, may have been suggesting, unless I misunderstood him. It is an imposition of a doctrinaire dogma as to how every union—each one of the 442 (because here are many organisations other than the 105 affiliated to the TUC)—must elect the executive in this manner.
I thought at one stage in his first speech to us today that the noble Earl seemed to be expressing at any rate a little sympathy with the idea that indirect elections could be a possible way of conducting decent, democratic associations in this country; and I would be surprised if he did not have that view because, as my noble friend has said, most associations other than trade unions, as well as trade unions, do in fact use that method when it is appropriate.
As for the argument that the Government are entitled to reject every amendment because they won the general election, as though there were some general plebiscite on every Bill that they were going to bring forward in the five years, I hope that we will not hear that again, because there is no point in having a Committee stage if that is the Government's view, and indeed no point in having any debates at all. That means that if you win an election, you put through what you like for five years; but that would not accord with the principles of this Bill.
There are four questions that I wish to put to the noble Earl on this amendment, which is, I repeat, giving the Government 51 per cent. for their imposed procedure on the executive—a majority control—but is asking, "Why cannot the members have the thing which suits their organisation for the rest?" First, it is well-established and was admitted in the Government's own Green Paper at paragraph 41, that many officers are appointed, especially by smaller unions, because that suits the organisation and it would be very silly to disturb those practices where, if I may quote the Green Paper, the union's needs
"are better served by selecting a General Secretary for appointment on the basis of his expertise and experience, rather than by election from within the union on the basis of popular support".
There are such cases. The Jarratt Committee of the CBI indeed recommended in 1980 that that practice be extended. That is the first point.
Secondly, is it not within the Government's knowledge that it is trite to say that amalgamations and mergers of unions, which it has been public policy among governments of various political colours to promote since the war, are facilitated by having an arrangement where sections can be appropriately
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organised on the executive, which would not necessarily—at least, in the first instance—rest upon a mere Clause 2 type during the election? It is well-known that the TUC has put the point to the Government often and enough, and I know of no place where a clear answer has been given on this Bill. What is the Government's answer to the argument that dogmatic insistence on election according to Clause 1 and Clause 2 will inhibit the continued rationalisation of trade union structures—which one thought was a non-controversial objective on both sides of the House—in such a way that some amalgamations that would be useful to industrial relations will be held up?
I come to the third point. Why should not some members go on to the executive indirectly? There are organisations which have members put on to the executive by the conference. There is the British Airline Pilots' Association and various other organisations. I am trying to pick organisations about which people will not say that there is some subversive element of support for the Labour Party. Then there is the Health Visitors' Association. Why should they not be allowed, as they do now, to put some people from the conference on to the executive?
My fourth point is that there are some organisations which have rather elaborate arrangements for co-option on to the executive and these would fit the amendment particularly, because they are a minority. The National League of the Blind and the Disabled is a trade union. Why should the Government insist that it can no longer operate the rule to co-opt some of the members of the executive? Why should not the Association of Her Majesty's Inspectors of Taxes—I should have thought that the Government wanted to be nice to them—go on with their rule of co-opting people on to the executive? In more general terms, with those four points, it is well recognised that direct elections entail a greater politicisation—in the broadest sense; not in a party sense—within a trade union; an increase in factionalism or, as those who support it say, an increase in democracy because it promotes a party system.
What we are saying in this amendment—to come to my final point—is: all right, if you want a party system within more trade unions, including all these hundreds of small organisations, have it for 51 per cent., but let the union get on with some sensible arrangements, which are suitable for its affairs, for 49 per cent., because we suspect you may see over the years that the members come to respect the 49 per cent. elections, and modify them in ways which are more suitable than those left with creaking legislation. But whoever may be right, since the Government believe in market forces, it is not very fair to us, because it is not 50/50. So why not take them on 51 to 49, and see which is the better market force within the union. See which the members regard as the best way to organise their affairs.
If the Government do not want to try that, are they not saying that they will not allow the members of autonomous organisations even to have a minority of people on their own executive according to the rules that they wish to have? And let us have no more about companies, because companies arrange their boards according to the general law and their own articles of association. Let us, too, have no more talk about

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clubs. Many Members of this House belong to clubs, and they do not have legislation telling them that they can elect a committee only according to Clause 2. They would be very cross if they were told that; and members of trade unions also feel that. So I hope that the noble Earl will give us some response to this amendment as a practical matter for the kinds of organisations I have cited, and their very deep concern about their day-to-day affairs being completely disturbed in an undemocratic fashion by the imposition of these clauses. I beg to move.
5.28 p.m.
Lord Campbell of Alloway: Very briefly, surely the enthusiasm of the noble Lord, Lord Wedderburn, has on this occasion allowed him to fall into error. Part I of this Bill is not, by any stretch of the imagination, the sort of model rules as envisaged by Donovan. They are a super-imposition. We went all over this on Second Reading and it is hardly worth repeating it again.
As regards the noble Lord's reference to legal problems and policies, I was attending but I am afraid that the point went clean over my head. I did not know what the legal problems were and that is reasonable enough. I did not know what the policies were and I suppose that that is reasonable enough. But it was all far too quick for my intelligence. Dogmatic insistence will continue, so he says, to inhibit the union structure in the way of merging. Why should it? Why should direct elections inhibit this? I have listened with such attention as I could truly muster, and with respect I heard no truly reasoned objection to direct elections which could support the substance of this amendment.
The Earl of Gowrie: On behalf of the Government, I can of course plead guilty to dogmatic insistence. It is the dogmatic insistence, which lies at the heart of the Bill, that a trade union's governing body should be democratically accountable to the members. This amendment would undermine the basis of that insistence of Part I of the Bill, by allowing people who have not been elected in accordance with the basic—and I may say very broad—democratic principles in Clause 2 of the Bill, to vote on a union's governing body. I insist on the breadth of these principles, because I think there is an expert and subtle attempt by the noble Lord, Lord Wedderburn, to imply a very wide and detailed intervention into the requirements for unions in this way. Our view is that it is essential that the Bill's requirements should apply, quite simply, to every voting member of a union's principal executive committee, because these persons are the key day-to-day decision-makers in a trade union. The way each and every one of these people casts his or her vote can have a profound effect on the lives and jobs of the union's members, and can also have a profound effect on those of us in the wider community. It is no good the noble Lord, Lord Wedderburn of Charlton, raising in this context the spectre of the in-house rules of White's or the Garrick. The fact is that the members of White's and the Garrick do not control the lives and jobs either of the other members or of those of us who are not fortunate enough—as is the case with me—to belong to those great institutions. It is therefore only reasonable,
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surely, that all those with voting powers should be democratically accountable to the membership. It is also clear, as I tried to demonstrate earlier, that that is what the members want.
It would be illogical to exempt up to half the voting members of a union's executive from this fundamental principle of accountability. One does, again at the risk of wearying the Committee, have to pose the question: what is it that is so objectionable in the Bill that it should not apply to every voting member of the executive? Clearly it is not that there should be elections at least every five years, because that is something, in fairness to the noble Lord, Lord Wedderburn of Charlton, that his amendment concedes. Nor do I believe that the real objection is to voting by ballot paper, or to voting in secret, or to voting at obviously convenient places and times. I do not believe that anyone in this House, wherever they sit, takes the view that these are iniquitous or unacceptable requirements.
We come back again therefore to the Bill's requirement for direct election. I am sorry to have to say to the noble Lord, Lord Wedderburn of Charlton, that he is quite wrong in suggesting that I have a soft spot for indirect elections. Of course I am aware of the anxieties that have been expressed by some unions over the consequences of having to give up systems of indirect election to their executives. Change is always rather a nuisance. I can understand those anxieties, but I do not think they should cause us to lose sight of the fact that what we are after are basic and broad democratic principles. Indirect election goes against the fundamental principle that the votes cast by individual members should be the decisive factor in the election of the executive.
In saying that I am of course aware that some unions may well wish to ensure that different interest groups or sections within the union are adequately represented on the executive. But that does not depend on indirect election. The Bill specifically permits this kind of sectional representation to continue. Equally I am aware that some unions will want to ensure that their executive benefits from professional expertise which may not be found within the union—for instance, financial advice. But, once again, there is nothing in the Bill to stop a union co-opting an accountant, a lawyer or indeed any other person on to its executive. Such persons can, under the Bill, attend executive meetings. They may speak at executive meetings. They may advise the elected executive members. The only thing they may not do is to vote when it comes to the final decision-making, unless they themselves have been elected in accordance with the statutory requirements.
That, in a sense, answers in principle the four questions asked by the noble Lord, Lord Wedderburn of Charlton. In more detail, where general secretaries (a point which the noble Lord raised) are concerned, the Bill does not require general secretaries to be elected when they have no vote on their union executives. As to amalgamation, Clause 4 makes special provision for union amalgamations. The Bill is no barrier to union amalgamations. I have already dealt with indirect elections—Lord Wedderburn's third point to me. On his fourth point, I have also dealt with co-opted members of executives. As I have just

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said, the Bill allows for these, so long as they have no vote because, to return to my earlier point, votes in these areas can have a very far-reaching effect on the lives of members of unions and upon life in the wider community.
So this Bill is indeed—as has been said—about giving the unions back to their members. It is not about making the unions half democratic or two-thirds democratic, as the noble Lord, Lord Wedderburn of Charlton, would seem to wish. It is about making them fully democratic. As I said earlier, the Government have given the unions ample time and ample opportunity to reform themselves. The Government have made funds available to this end. These funds have been spurned. The TUC and its affiliates have refused to take advantage of the easy way to extend their members' rights. Therefore the time has now come for statutory measures, but they are very flexibly and very widely drawn up. At this stage the kind of half measures tossed into the legislation by the suggestion of the noble Lord are simply not good enough. I hope that the Committee will not follow the noble Lord if he presses his amendment to a Division.
Lord Wedderburn of Charlton: Before expressing my disappointment with the Minister's response, I would say to the noble Lord, Lord Campbell of Alloway, that if I fell into error I am sorry. It may be because I went too quickly, as he put it. But I could say to the noble Lord that we are not dealing with model rules. The noble Lord is absolutely right. Donovan was talking about a model which you could then satisfy with variation from union to union.
We are talking about a single set of procedures which are detailed and which are not (as the noble Earl, at least in our view, suggests) broad in principle. They are very detailed. However, I shall not follow the noble Earl by trying to debate Clause 2 when we are still on Clause 1. When we come to Clause 2 we shall show again how these are detailed impositions upon trade union freedom which are in breach of our international obligations as well as in breach of many principles of democracy in this country. But that is for Clause 2. We merely note Clause 2 and Clause 1 at the moment as a single method of election. Nothing else is allowed.
The noble Earl cannot try to make a difference between us on the proposition—I hope I quote him correctly—that he believes, and we do not, that unions should be democratically accountable to their members. Anybody with any experience of British trade unions would be hard put to it, in comparative terms with trade unions around the world and with employers' organisations both here and throughout the world, to put the British trade union movement low in the league of democratic accountability. It is simply false to suggest that it does not enjoy a high reputation for democratic accountability with its many varieties of methods of election of executives and its rich variety of practice. But that is not the issue between us. The issue is whether these rules must be imposed without exception.
The noble Earl said that he will not accept any part of this amendment, which might go a little way towards making things better. The noble Earl said in
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passing that people could be brought on to the executive under these provisions, so long as they had no vote in the final decision-making. That is a phrase which I noted with interest and to which we shall return later. Of course it is true that they are allowed co-option and indirect election, so long as the people put there can have no effect on the vote.
Why this is also objectionable is very simple. We still believe in the improvement of industrial relations. We do not believe that the Government should stand away from industrial relations problems. We believe that the Government should help with industrial relations problems.
Some of the industrial relations problems relate to the trade union structure. We have always said so. Trade union structure, just like the employers' organisation structure, company structure and the structure of multinational organisations, (which are hardly in the same league of accountability, democratically, as trade unions) have to be looked at with care and not simply by the application of a simplistic formula. This Bill imposes a simplistic formula. But we have learned clearly that the Government not only will not hand back the constitution of the union to the members; we have also learned that the Government will not even hand back 49 per cent. of the constitution to the members. That is now clearly established.
We shall have other Divisions. On this particular occasion I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.40 p.m.
Lord Howie of Troon Lord Howie of Troon moved Amendment No. 4:
Page 1, line 12, after ("position") insert ("either").
The noble Lord said: My interest in trade unions and in trade unionism is slightly different from that of either Front Bench, for they both concentrate, at least to some extent, on the major trade unions, and their thinking is dominated to some degree by the influence of such trade unions on the economy. It is no doubt influence of that kind which has caused the Government to introduce the legislation that is now before us.
As noble Lords may recall, my interest is in smaller, white-collar unions, especially those representing professional engineers, technicians and people of that kind. Trade unionists and trade unions of the kind with which I am closely acquainted and for whom I speak would be dismayed at the noble Earl's description of trade unionism as given today. I am quite sure that in the heat of debate he has exaggerated his view of trade unionism. The trade unionists for whom I speak are nothing like the people he described in earlier discussions.
In the unions I know, there has never been any hint of scandal of the kind to which the noble Earl has drawn our attention on several occasions already. Nor, incidentally, are the unions for which I speak likely to be affiliated to the Labour Party. So they need not come under the strictures of the noble Lord, Lord Campbell—for that is something that seems to worry him very much. In fact, I have no idea whether the members of any of these unions are in any way interested in the Labour Party.
The matters covered by Amendments Nos. 4 and 5 were drawn to my attention by the Engineers' and Managers' Association. They are a well-known group of unions whose democratic credentials are, I would claim, absolutely beyond reproach. I am perfectly sure that when the noble Earl replies he will have no cause to reproach those unions in respect of their adherence to democratic principles; to the precise principles of democracy and accountability which he wishes to see and which I wish to see.
The unions of which I speak are law-abiding on all occasions. They are responsible and they are sensible. They are even—to use the vogue word of the day—moderate. They are also successful as trade unions. They represent their members properly and obtain advantages for them in terms of wages and conditions. They are not weak because they are responsible, and they are not weak because they are moderate. Neither are they weak because they are democratic and cannot be said to be undemocratic.
The EMA is a federal union whose principal council is indirectly elected (and I am sorry to trail over this ground yet again) by constituents who are themselves directly elected, so that the chain of accountability is clear and short. It is plain and it is unconfused. As I have said already, the Government propose one method only for electing councils, and that is direct election. Is that absolutely necessary? I do not think it is necessary. If the Government want democratic accountablity, as the noble Earl the Minister has said, then it is the views of the union's members which should be paramount—provided that those views are freely and properly expressed through any system that the noble Earl likes and under any system of electoral restraint that he likes, just so long as the members are allowed to express their views properly and freely. It is the members' views that should be paramount, and not those of the Government or of anybody else. Incidentally, it is possible that union members might wish to adopt the Government's proposals, and it is possible that they might not wish to adopt the Government's proposals but to continue with the system they have used successfully in the past.
Later in this debate we shall reach Amendments Nos. 44 and 45, set down in my name. Some of the ground they touch has been covered already, but we shall return to this same ground in that part of the Bill. These amendments are designed to retain for unions the right to determine through a secret postal ballot whether their members want the Government's proposals and whether the Government proposals are a real improvement—and that is important—on the existing rules within the restrictions of democratic accountability which the Government and myself both want.
Amendments Nos. 4 and 5 allow such an alternative to the Government's proposals if union members do not consider that the proposals are an improvement. At this stage I shall refer to those later amendments only in passing, but there is one aspect worth mentioning this early in the debate. It is that those later amendments are entirely consistent with the proposals discussed in paragraph 54 of the Green Paper entitled Democracy in Trade Unions, published
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about 18 months ago, where alternatives to the course now proposed by the Government are considered. I felt at the time the Green Paper was published, and still feel now, that those alternatives are there considered sympathetically. Paragraph 54 states:
"Established systems of indirect voting might be held better to reflect members' needs and the diversity of interests of the membership. And if other arrangements could be demonstrated to have the support of a majority of members democratically expressed, the question arises whether such arrangements could not then be accepted as a valid alternative to the specified legislative requirements".
My proposals are exactly in line with those contained in paragraph 54 of the Green Paper.
I fear that the Government are showing themselves to be adamant on this matter because of a misconceived notion of unity across the whole system of union organisation. Paragraph 128 of the Green Paper to which I have referred concludes:
"The Government has no preconceived ideas of the best approach in each case, and is well aware that, before any decisions are taken, there is a need for very careful consideration of all the issues involved".
Quite so; I accept that, and I agree with it entirely. Who could disagree?
I am sorry, however, that the reaction of the noble Earl to the amendments we have discussed so far shows every sign of "preconceived ideas" and little evidence of sufficiently "careful consideration". In these two modest amendments, I am giving the Minister a chance to fulfil the underlying good sense of the Green Paper's conclusions in paragraph 128, and I hope that he will accept them. I beg to move.
Lord Dean of Beswick: I rise to speak to this amendment because with Amendment No. 7 in my name and that of my two noble friends the end product would be the same in its effect on the Bill. I rise with some diffidence because as a lifelong trade unionist myself I find what is proposed in this particular clause to be totally unacceptable. During proceedings in another place the Secretary of State and the Minister of State referred to the fact that they were not putting the trade unions in a straitjacket. But I believe it was only last week, when the Secretary of State announced there would be further amendments brought before your Lordships to be dealt with at Committee stage here, that the Minister used the word "straitjacket"; and it is obvious that the Government intend completely to tighten the straitjacket. It is not lightly accepted when we hear some noble Lords on the other side talking as though they had support for trade unionism in general when they really mean that they are like the person who believes in acrobats and circus performers so long as they can perform in a straitjacket and with leg irons on.
I myself have been a member of the AUEW since 1937. I have never been a professional trade unionist, only a rank and file member, with the exception of holding for quite a long time the humble but, I consider, very important position of a shop steward. Shop stewards are in certain respects more important than some in the hierarchy of the trade union leaders. So I am not speaking specifically on behalf of the AUEW here because I think their own rules, under which they operate at present, fulfil most of the

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requirements. They are supposed to be a model of democracy.
I wondered, when the debate started on the first amendment, whether this Chamber was in Committee or whether it was functioning, as it does very often, as the highest court of law in the land. We had the situation of a noble Lord, Lord Campbell of Alloway, who almost presented the case against the prisoner in the dock, the trade unions, without any evidence, saying that the trade unions had behaved badly, and could not be trusted; and then we had a noble and learned Lord, Lord Denning, who seemed to subscribe to that view with all his legal knowledge of matters.
Lord Campbell of Alloway: I am grateful to the noble Lord, as always, for his courtesy in giving way, but would he mind telling the Committee what he is talking about from the point of view of suggesting that I referred to trade unions as being in the dock, untrustworthy and so forth? I have consistently supported the responsible trade union movement in all our debates, and I should like to know.
Lord Dean of Beswick: I think the noble Lord, Lord Campbell of Alloway, said that certain officers of trade unions appointed under the system with which he does not agree may have behaved badly in the past, or may behave badly in the future. We shall look at Hansard tomorrow, but I think that was said.
I find that difficult to accept, bearing in mind that there are some noble Lords on this side of the Committee who have had distinguished service in major trade unions and whose record would stand examination from any point of view whatsoever.
What is behind the amendment to which I speak? The trade unions having already gone through the procedures of this part of the ballot and elected people to certain important positions as delegates, or whatever you call them, because they have been subjected to these clauses and have gone through the provisions of the Bill, it asks these bodies of people to elect their executive committees on a national basis. I see nothing particularly wrong with this; and if the Government's belief is that by doing this they may change the militant or less militant standpoints of some unions by inflicting this type of ballot on them, and that it will produce the type of trade union leadership that they desire, nothing could be further from the truth.
The fact is that most of the trade unions that have operated under the system I am talking about, where secondary elections take place and people are elected to positions then choose a national executive, have been under no scrutiny whatsoever for what one could call militant or outrageous behaviour. In fact, it used to be said in my own party that the big trade unions, which use this type of election, were the barriers to the approach of Left-wing politics. That has been historically said and accepted, so I do not know why the Government think in those terms.
The noble Earl, Lord Gowrie, in reply to the first or second amendment moved by Lord McCarthy, brought in the question of company law. I, being a layman, would not want to discuss company law, because I know little or nothing about it; but I must
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take him back to the fact that there was some grave disillusionment and concern some time ago over the behaviour of some of the most important financial institutions in this country during the lifetime of the last Conservative Government. They did nothing about the major part of it. The main clauses that would have dealt with those excesses and put them right were withdrawn by the then Minister of State. It is no good the noble Earl shaking his head. If he checks in Hansar d, the record of the last Conservative Government, he will see that I am correct.
The Earl of Gowrie: The Committee and I would certainly be enormously relieved if the noble Lord would address himself to the amendment.
Lord Dean of Beswick: I will do so. I am merely pointing out that the noble Earl himself introduced the question of company law into a trade union Bill.
The Earl of Gowrie: I did not introduce company law into this amendment or context. This is an irrelevance.
Lord Dean of Beswick: I am sorry, but the noble Earl cannot set the rules to suit himself. He did introduce company law into an amendment earlier in this section of the Bill, which was not dealing with company law. I think I am entitled to draw a comparison. He referred, of course, to Mr. Sidney Weighell, the ex-member of the NUR, as though he were talking about somebody who would be a friend to all of us on this Bill. I do not know how Mr. Sidney Weighell came to be elected to the General Secretaryship of the NUR, but I know that his resignation was precipitated by his doing some of the very things for which the noble Earl is criticising other people. So he cannot have the argument both ways, in my opinion.
The Earl of Gowrie: I am not trying to.
Lord Dean of Beswick: I listened with great care to what the noble Lord, Lord Howie, said when he moved the amendment. It is a very important amendment concerning some of the smaller unions and the way they amalgamate on a small scale, more like an association. I think that those trade unions who, through their members, want to do this, ought to be able to proceed in this manner to have their elections to certain positions. Then, if their rules comply with this Bill they can proceed to elect their executive councils from those people who man the bodies that have already been subjected to the restrictions of this Bill.
Lord Campbell of Alloway: The charge laid at my door by the noble Lord, Lord Dean of Beswick, is assuredly ill-founded. I am content to allow the matter to be resolved by Hansard. That shall speak for itself.
Leaving the noble Lord's speech to return to the substance of this amendment, I find myself in sympathy with the spirit of part of it because it follows the line of the set of Government proposals set out in Amendments Nos. 22, 33 and 42, which encourage postal balloting; because it affords an option which encourages postal ballots by trade unions who have

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either practised them in the past or feel able to practise them now. But it does not command the postal ballot. If the amendment stopped there, it would be one thing; but it endorses the principle of indirect elections, a principle which for the reasons I have already sought to give I find unacceptable. Therefore, I oppose the amendment.
Lord Rochester: I am glad to follow the noble Lord, Lord Campbell of Alloway, if only to say that I hold him in respect for the objective way in which he approaches these matters. I am glad to confirm that in the past, in my opinion, he has shown every sympathy with trade unions and their role. I want to express our sympathy with the amendment that has been moved by the noble Lord, Lord Howie of Troon, taken together with Amendment No. 45 on which he spoke previously. This amendment covers nearly all the points that my noble friend Lord Aylestone and I had in mind in tabling Amendment No. 8 to which we shall shortly come.
Like the noble Lord, Lord Howie of Troon, we are troubled about the position under the Bill of certain highly responsible trade unions which have deliberately—and I venture to suggest wisely—devolved as much authority as possible to their constituent groups. In this respect at least, as the noble Lord, Lord McCarthy and others have already pointed out, they differ in their way from lots of other large organisations in the country—companies, voluntary bodies, and even I suppose in degree political parties.
The principal executive committees of the unions that are spoken of by Lord Howie are therefore composed of people elected by their constituent, subsidiary groups, and therefore by definition not directly elected. One such union, as he has said, is the Engineers and Managers Association and for that union and for its general secretary, Mr. John Lyons, I personally have a great respect.
The noble Lord, Lord Howie, has explained—and I will not go over the ground again—the procedure that they adopt in electing the members of their governing body. I must say, with all respect to the noble Earl, that if the Government's legislation is going to create difficulties even for unions such as these by insisting that they must conform to a single system of direct election of their governing bodies, then in my view this will antagonise quite unnecessarily just those elements within the trade union movement that at this time need and deserve most encouragement.
Lord Beloff: I hope that the noble Earl will give consideration to this amendment for the views which have been advanced both by the noble Lord, Lord Howie, and by successive speakers. The only point that I should like to make is that I find it very confusing that the Government do not (as we shall learn later) accept the view that the initial form of elections by secret postal ballot is a guarantee of democracy and at the same time regard as undemocratic any form of indirect election, however strong are the guarantees of the way in which the initial electors have been elected.
After all, if we look at political institutions, indirect election is an accepted democratic method. The
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president of the German Federal Republic is elected by politicians who, themselves, have been elected in secret ballots. The President of the State of Israel is elected by members of his Parliament who, themselves, have been elected. No one suggests that either of these eminent persons have not been democratically elected. I think that there would be very great rigidity (apart from the damage which would be done to particular unions in particular circumstances) if the Government were to interpret it mandatorily—and I accept that they have a mandate for moving in this direction—and to interpret it so rigidly as to say that no indirect election can ever be democratic because no one can possibly accept that view.
Viscount Hanworth: Amendment No. 4 is a paving amendment for Amendment No. 5. No. 5 is one way of dealing with the problem arising with federated unions. They are those which are registered trade unions with smaller groups within the union. It seems very cumbersome and expensive if ballots have to be conducted at all levels. Moreover, there is the other objection that there is no guarantee that the smaller groups will be adequately represented on the main executive committee. Amendments Nos. 7 and 8 raise the same point. Amendment No. 44 also seeks to avoid this duplication of balloting by making such ballots unnecessary at the smaller group level. If the Government do not like the proposed amendments—and, personally, I like this one very much, as the last speaker has dealt with it in some detail—I hope that they will seriously consider the problem which I have raised and will come forward with a proposal at the next stage of the Bill.
The Earl of Gowrie: At one point I have to confess that I was a little uncertain as to whether there was universal agreement about which amendments we were speaking to. But I am assuming that we are speaking to Amendments Nos. 4, 5 and 7 in the name of the noble Lord, Lord Dean of Beswick. These amendments raise a very important question: whether the Bill should provide for indirect as well as direct elections to union governing bodies. I certainly make no objection at all to noble Lords opposite or to my noble friend Lord Beloff bringing this issue to our attention. Indeed, I share a number of the concerns which have been put forward during the discussion of the amendment.
I accept, for instance, that many unions want to ensure—and here I am quoting from the speech of the noble Lord, Lord Beswick, during the Second Reading of this Bill—a proper balance between sectoral interests and between local experience and head office expertise. But what I cannot accept is that these concerns can be met only by allowing unions to deny their members a direct say in the election of the members of the principal executive committee of the union. In fact that is the point that I shall seek to argue.
The Bill as drafted goes a very long way towards meeting two of the major arguments which are advanced in favour of indirect elections. I acknowledge, with the noble Lord, Lord Howie of Troon, the paragraph in the Green Paper which dealt with this point. In the first place, it is alleged that direct elections

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will allow inexperienced members to gain seats on the union executive in place of those whose abilities are known and respected by their immediate peers.
The Bill allows unions, so long as they act within their rules, to require, for example, that candidates for the governing body must have been members of the union for some minimum period of time. In the second place, the Bill makes explicit provision to the, effect that where a union is divided into, for instance, constituent sections, seats on its executive may continue to be allocated between the various sections on whatever basis the union's rules may provide. Thus the carefully constructed "balance" on some executives as between different sections of the union which, we hear sometimes argued, can only be achieved through indirect election need not be disturbed by the Bill's requirement for direct elections.
But having said all that, I do not want to suggest that this is an argument solely about practicality and pragmatism or the best practice of the vast majority of unions. There is a major point of principle here. The Government believe that it is fundamental to a proper system of democracy in trade unions that those union leaders who take decisions on behalf of their members—and, as I argued at an earlier stage, these are decisions that can affect their members and the lives of all of us—should be directly elected by those members. Only in that way can the members be certain that they can exercise effective control over those who speak and act on their behalf.
The noble Lord, Lord Howie of Troon, and I are at one, as he kindly acknowledged, about some of the electoral issues involved. It therefore grieves me to hear him describe as a straitjacket—with all that emotive inference of Whitehall diktat, bureaucratic interference, political intervention, and the rest of it—principles as simple and broad in this area as those enunciated by the Bill. You cannot really talk in terms of a straitjacket about requirements that voting members of union executives should be directly elected at least once every five years; that in those elections voting must be secret and by a ballot paper; that those voting must be allowed to do so without interference or constraint, and must have a convenient opportunity of voting; or that votes cast must be fairly and accurately counted. That does not sound to me like what I understand to be a straitjacket.
6.12 p. m.
Lord McCarthy: Does the noble Earl not agree, though, that the straitjacket which Parliament is in is the straitjacket of the noble Lord, Lord Howie? What the noble Lord, Lord Howie, wants is precisely the way in which Parliament works—in which Parliament elects the MPs, and the MPs elect the Cabinet, and the Prime Minister elects everybody. It is a system of indirect election; and so is this noble House. That is the straitjacket. Why can the trade unions not have what Parliament has?
The Earl of Gowrie: I made it clear in my opening remarks to this amendment that I am objecting to indirect elections as a matter of general issue, principle or historical event no more than anyone else. What I am saying is that in the case of trade unions the
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members of the principal executive committees can make decisions which affect the lives of members and which can affect the lives of people outside, and that the Prime Minister (who has been used in this connection) and the members of her Cabinet—who are, if you like, indirectly elected or appointed—are accountable to people and to the electorate in a wholly different way, and they cannot—
Lord McCarthy: No, no!
The Earl of Gowrie: The noble Lord is a don at Oxford. I spent long years in Oxford having to suffer the rigours of what is called Oxford philosophy. He is not comparing like with like and is engaged in semantics which would have him drummed out of Nuffield. It simply will not do. The activities, nature and constitution of unions are not comparable to those of Parliament; and the role of Parliament in our national life is not comparable to the role of unions in national life. I am not arguing that the one is more important or better than the other at this stage. I am talking about wholly disparate functions altogether.
While I am on this point, it will not do either for the noble Lord, Lord Dean of Beswick, to suggest that people on this side of the House—my noble friend or I—are engaged in a piece of union bashing in this legislation. As I have said, the principles enunciated by the Bill are very broad and there is a great deal of self-evident support for them—and support, I may say, from all sides of the House. Most of the previous Labour Government who sat on this side of the House in those days have now moved to that side of the House, and they support them. We are really not dealing with highly contentious legislation at this point. I admire the debating skills which enable the noble Lords, Lord Wedderburn, Lord McCarthy and others, to get my back up and thereby suggest that the legislation is rather more contentious than it is. I shall now, if I may, put my back down again and revert to the rather modest principles of the Bill and the modest principles of this amendment.
Lord Wedderburn of Charlton: Merely for the record, I am sure that the noble Earl would agree that the legislation is contentious in one respect in that it has met the sustained opposition of the Trades Union Congress. The noble Earl feels that he is right; but it is contentious legislation and he should not go on record in suggesting that that is not so.
The Earl of Gowrie: It is contentious to the Trade Union Congress, but it is not contentious to trade union members. That is the very point of the Bill.
As I said, this is not an argument wholly about practicality and pragmatism. I know that it is argued that indirect elections can be just as democratic as direct elections. As I have said, I do not think that that stands up to close scrutiny. One simple system of election which would be permitted under the noble Lord's amendment is the election of the executive by the union's annual conference. Let us just have a look at that system. That is the system used in both the Society of Civil and Public Servants and the Post Office Engineering Union. The annual conferences in those unions are attended by some 700 to 800

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delegates. It is only too easy to imagine the enormous practical problems which would be involved in ensuring that the election of such a lage number of delegates was subject to the requirements of the Bill.
Even if those problems could be overcome, it is highly unlikely that all the elections would be contested. In the ASTMS executive elections in 1983, five of the 15 divisional representatives on the executive were elected unopposed. If that can happen where there are just 15 seats being elected, it is only too easy to imagine the proportion of contested elections where there were 700 or 800 seats being elected. The reality surely is that under a system of indirect election, the ordinary member will all too often find himself with no effective choice.
Even assuming that elections at the lower level are contested, there is still of course no guarantee that those elected at that level will cast their votes—and this is again another drawback of the system of indirect election in this context—for the executive in accordance with the wishes of those who elected them. I have a specific example of that difficulty, because the recent experience of the Inland Revenue Staff Federation bears the point out only too well. A survey of the federation's 60,000 members, which the union itself commissioned, showed that no fewer than 94 per cent. of the union's members were in favour of mandatory strike ballots; and yet when the proposal to adopt strike ballots in the union was put to a delegate conference in December last year, they threw it out. So I think that there can be no clearer example of why the only effective guarantee that the views of ordinary members will prevail is for those members directly to elect their union executive.
Coming back to a point made to me by the noble Lord, Lord Howie of Troon—and it was, I think, also echoed by the noble Lord, Lord Rochester—I do not think that those noble Lords have fully appreciated the degree of flexibility in the Bill. The Bill meets the genuine concern that unions should be able to continue to ensure that the different interest groups within the union are adequately represented on the executive. I dealt with that point a little earlier. Clause 2(3) of the Bill provides that unions can continue to allocate seats on their executives on whatever basis their rules provide as among different occupations, geographical areas or sections within the union.
It is true of course that they will have to change their present systems of indirect election. I can make no apology for that, because it is a fundamental principle of Part I of the Bill that every trade union member should be able to vote directly for one or more representatives on the executive of his union. It is inevitably the case that where the election of the governing body is delegated to an annual conference or to some other intermediate body within the trade union, there can, as I have said, be no assurance that the views of a majority of the members are accurately reflected in the composition of the governing body.
I hope I am a reasonable and pragmatic fellow. I recognise that the Bill will require some unions to move from systems of indirect elections to a system of direct elections. I appreciate not only that change is sometimes a nuisance but that people who are
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required to be making changes may sometimes feel that they are in some ways subject to criticism and that the changes are as a result of these criticisms. In the great majority of cases I freely acknowledge the criticisms may not be valid. It would therefore be a real criticism of the Government themselves if they were requiring changes which were complex, detailed or, in the noble Lord's phrase, a straitjacket. But given the breadth of flexibility and essentially agreed nature of these reforms, given the fact that many unions already use systems based entirely on direct election and that the Bill is simply extending this practice to all unions, I do not think that people will find it difficult in practice. I will ask the Committee therefore to reject the amendments.
Baroness Gaitskell: May I ask the Minister a question on something which confuses me after his speech? He says that he likes the congress and dislikes the members. That is something that I find very difficult to understand.
The Earl of Gowrie: I am grateful for the opportunity to clear up any such impression. I dislike neither. The point I was seeking to make was that a measure of this kind may be opposed by the Trades Union Congress without being opposed by most members of trade unions. That was the point I was seeking to make.
Baroness Gaitskell: Thank you.
Lord Houghton of Sowerby: The noble Earl a moment or two ago referred to the Inland Revenue Staff Federation. He was not quite correct in the account he gave of what happened at the conference last December. It is quite true that a survey of the members independently undertaken showed that 94 per cent. of the membership were in favour of a pre-strike ballot. The noble Earl said that when that proposition came before a delegate conference they threw it out. That is not quite correct. What the motion failed to get was the necessary two-thirds majority of the delegate conference to become effective. That is somewhat different. It was not thrown out—in those words; it just failed to get the necessary two-thirds majority.
On other recommendations made at the same conference, as a result of the same survey, the necessary two-thirds majority was obtainable, particularly in relation to the election of the executive council by ballot of the members. So I do not think it is correct to suggest that the delegates of that conference were so unrepresentative that they did not approve of what 94 per cent. of the members supported: it was a little more selective than that. The debate on whether or not there should be pre-strike ballots obviously had to refer to some of the complications of doing that. We shall come later in the Bill to some of those difficulties and they may be formidable.
May I just add one other word about what is before the Committee at this moment. I do not know whether it has been mentioned before, because I was unavoidably called out earlier in the debate. The fixing of a limit to the period for which a member of an executive committee may serve, without being elected

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or re-elected by ballot, may imply that that is the length of the executive committee's life. In the case of Parliament, I think that probably the first decision to be taken, perhaps allied with another, was: how long shall the Parliament last without being reelected? That very often is the important consideration in deciding the method of election. The problems of reelecting or electing an executive committee by ballot will be difficult enough in any circumstances, but a great deal more difficult if it is a postal ballot of people in their homes, for obvious reasons: because of records, and all the rest of it.
How frequently will a union feel that it can go through that process to re-elect its executive committee? Many people may say that if they are elected by indirect methods for three years out of four, what is the reason for sending them to an election by ballot in the fifth year? What is so important about the fifth year? I think what we have to be careful about here is that this method of election may well establish the tenure of executive committees for longer than they get under the existing system. That could result in some executive committees remaining there perhaps rather longer than their members would wish. You cannot have it all ways; here and there will be some side effects and disadvantages of whatever alternative a union is required to adopt.
I offer those observations because I see that the simple process of electing by ballot is so bewitching to a democrat, and yet in the circumstances in which it may come to be applied it gets entangled in all sorts of problems, some of them psychological and some of them probably insurmountable. My worry about any attempt to give the unions an option under this Bill is, quite frankly, that the debate will not be on the merits of the proposal but on "whether we adopt any part of that wretched Tory Bill". It will become a political debate in many unions because of the source of the option that they are given. However, that is another point of view.
I do not know where it will all end, but I am quite sure there is a packet of trouble awaiting everybody concerned in rearranging the affairs of unions to meet these requirements and I am very much afraid that not all the results will be what the sponsors of the Bill desire.
The Earl of Gowrie: I was most interested by the intervention of the noble Lord, Lord Houghton, with all his experience. That is why I rise rather quickly to deal with the points while they are fresh in the Committee's mind. Obviously I welcome what he said about his scepticism about anything being optional in this area. Since I do not want the optionality suggested by the previous amendments, I very much welcome that.
In fact, it is a very important part of the Government's approach, and I think a very distinct part in relation to the previous Conservative Government's approach at the time of 1971, that we should try and do this step by step, not, as some critics or some political opponents have argued, in order to undermine the structures piece by piece but simply to take people with us. We have sought in this legislation consistently to do that.
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It is of the essence, if you want to take people with you—and in this context we mean the vast majority of ordinary union members—that you should have considerable flexibility and, as I have sought to argue, the suggestions being made for the election of the executives are pretty flexible. The noble Lord, Lord Houghton, was worried about the five-year period being inflexible. It is not, because the five-year period between elections is simply a maximum, and of course it would be possible to operate within that maximum.
On the issue of the Inland Revenue Staff Federation, I am most grateful to him for setting the record straight, if I have got anything wrong. But I do not think the essential point I was making is very different—that 94 per cent. is a lot more than two-thirds; and there are difficulties in proceeding in something as critical as the areas I was mentioning. I was not talking about mandatory strike ballots. I was talking about executive power and authority by an indirect electoral system.
Lord Howie of Troon: I rise with some embarrassment, since the noble Earl and several others have drawn attention to my describing the Bill as a straitjacket. My embarrassment arises because I do not remember doing so. I must have been carried away by a flood of emotion at the time due to my feelings about this part of the Bill. I accept that I did say it, if the noble Earl says that I did. It is not quite a straitjacket; it is really a tight bandage.
In our discussions on the Bill over and over again the noble Earl has drawn our attention to the flexibility of the measure. Every now and again, however, he brings out some little inflexibility. What came out a moment or two ago, when he first spoke, is that not only is the method of election to be specific, but the candidates themselves have to be limited in some way. So flexibility becomes relative as we proceed. No doubt by the end of the day we shall see how flexible flexibility is.
More important, the noble Earl makes a mistake in principle. I greatly hesitate to say this because I think I heard the noble Earl disclosing that he had studied philosophy at Oxford. I never did. I hesitate to intervene between the two Oxford Front Benches here. That would embarrass me further—
The Earl of Gowrie: I shall set the record straight. I did not study philosophy formally, but I spent a lot of time reading it.
Lord Howie of Troon: Yes, I know. I tended more to billiards in my day. That was probably much more sensible, and I was better at it then. I think, however, that the noble Earl has mistaken principle here for machinery. The principle in which I think he is interested and the principle in which I am interested, as are many people throughout the country and all those people he mentions who support the intentions lying behind the Bill, is the principle of accountability. His method of direct election, if my interpretation is right, is really machinery for obtaining accountability. All that I am doing in this amendment is proposing another form of electoral machinery for obtaining the same accountability. I want the same accountability. I do not want to slip out from that at all. I do not think

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that the noble Earl was right in saying that it is a principle. However, he is the philosopher and I am not. I shall leave that to him.
I was greatly heartened by the intervention of the noble Lord, Lord Beloff, and encouraged by his suggestion to the Government that they should think a little further about the matter. I do not think that there has been any evidence from the Government Front Bench that the Government have yet begun that process of re-thinking. But we have plenty of time. Maybe the noble Earl the Minister will philosophise a little further, consider the extremely sensible remarks of his noble friend Lord Beloff, and come at least part of the way towards us. I do not intend to divide the Committee at this stage of the proceedings. I think it likely, however, that I shall come back at Report stage with some other form of words, unless the Minister's philosophising prompts him to do the same. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments 5 to 7 not moved.]
Lord Rochester Lord Rochester moved Amendment No. 8:
Page 2, line 5, at end insert—
(" (1A) The principal executive committee may opt to waive the obligations of this section if within 12 months of the commencement of this Part and at intervals of not more than 5 years thereafter, it holds secret postal ballots to which the provisions of Section 2 mutatis mutandis apply and of which the results show satisfaction with the current arrangements governing the election of the principal executive committee.").
The noble Lord said: There are a number of points concerning this amendment that have already been made and I shall try not to repeat them. Basically, like the amendment that the noble Lord, Lord Howie of Troon, has for the moment withdrawn, it depends for its philosophy on paragraph 54 of the Green Paper, Democracy in Trade Unions and the alternative approach suggested there. Briefly, this was that if a majority in a secret ballot periodically confirmed their support for the existing arrangements for electing the governing body of their union, then other statutory requirements would not apply.
At Second Reading of the Bill I suggested that if that was the outcome of such tests of opinion, it could not then be claimed that arrangements were being imposed on union members from outside against their wishes. If, on the other hand, the members indicated in the ballots that they preferred the arrangements set out in the Bill, that would strengthen the Government's hand because implementation of their proposals would then have been shown to be widely accepted by those immediately concerned. I see that as a most important point.
The purpose of this amendment is to take the matter a stage further. In doing so, I suggest that we deal with the principle, or principles, involved rather than get too bogged down in detail. Let me give a lead in that direction by readily acknowledging that the wording is of a fairly general kind. For example, the provisions of Clause 2 of the Bill have been drafted for the purpose of electing members of the principal executive of trade unions. Therefore a number of those provisions are clearly not applicable to the different purpose of this amendment. That is why the handy Latin tag mutatis
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mutandis has been inserted. I suppose that that can roughly be translated as "changed where necessary".
Then the amendment refers to secret postal ballots. This is a fairly vital point and. if I may say so, is a major difference from Amendment No. 7, tabled by the noble Lord, Lord Dean of Beswick, that we discussed a little time ago.
I do not want to anticipate the more general debate that we shall have later under Amendments Nos. 21 and 22. Suffice it to say that for the crucial purpose of this particular amendment we have judged it essential that there should be a mandatory secret ballot of all trade union members and that therefore it is a major plank within the amendment.
The noble Earl, Lord Gowrie, has already said in response to earlier discussion that if the Bill had taken the form of a detailed set of regulations covering all aspects of the conduct of trade union elections, it might have been reasonable to allow unions to opt out of those regulations on the basis of a membership ballot. But in drafting the Bill the Government had taken the opposite view in laying down certain minimum democratic electoral arrangements or requirements, from which trade unions should not be allowed to opt out. I understand that view. Indeed, it explains why my noble friends and I are in general support, as we made plain at Second Reading, of Clauses 1 and 2 of the Bill.
I am still concerned, however, more particularly about those responsible trade unions whose arrangements for the election of their governing bodies already conform to the basic democratic principles enunciated by the Government, albeit on an indirect basis.
I take no comfort at all from what I understood the noble Earl was saying in response to the noble Lord, Lord Beloff, for whose intervention recently I, too, was grateful. As I understood it, what the noble Earl was saying ran something like this: "Look—if you don't have direct elections to the principal executive committees of trade unions, those elected to the governing body of the union at the intermediate level will sometimes vote or act in some way different from the way in which the people at the local level who first elected them will vote or act". Of course that will happen, but I suggest that it will happen also in practically any national organisation of which one can think. So one really comes back to the basic point: who are we to insist that the governing bodies of these unions must be elected directly, and in no other way?
But more than that—and perhaps this is the crucial point of this amendment—what is there really to worry about if, under the provisions of secret postal ballots, the principal executive committees of trade unions are permitted, within 12 months of the commencement of this part of the Act and at intervals of not more than five years thereafter, to retain the present arrangements? This amendment calls for a continuation of the current arrangements to be subject to the test of secret postal ballot under the provisions of Clause 2 of the Bill, whatever form Clause 2 eventually takes following the discussions we are to have later on Amendments Nos. 21 and 22.
It is widely and, I believe, justifiably believed that the majority of trade union members would prefer the

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electoral arrangements set out in Part I of the Bill. That is the Government's contention, and it is supported, as the noble Earl has said, by the way in which the voting went in the last general election. There is every indication that, if this were put to the test, then members of trade unions generally would opt for the Government's proposals. Therefore, such a test should surely be welcomed as a means of proving the point conclusively and to the satisfaction of all concerned. I beg to move.
Lord McCarthy: As we have already indicated, we support this amendment, and I hope that the noble Lord. Lord Rochester, will press it to a Division. It operates slightly differently from previous amendments that have been moved because he has had the courage to take hold of Part I of the Bill and suggest that the test under which the union members should decide whether or not they want to keep their existing system, or change to another system, should be the test of the Bill itself—not the constitution of the union, which we suggested, and not even the provisions of the 1964 amalgamations Act, which we suggested, but Clause 2 of the Bill. I do not see how anybody can object to a choice of that kind.
We have lots of criticisms of Clause 2, and we shall come to them later tonight. We consider that in some ways it is impracticable. Certainly we consider that it imposes very severe constraints upon trade unions which would be required to carry it out. Nevertheless, those are the tests of the Government, and what the amendment says is: "We accept those tests but, nevertheless, we will give to the union member the choice as to whether or not he really wants to come under the terms of this Bill".
The only other thing I would say is that the noble Earl (I am afraid he is not in his place) occasionally mentions public opinion polls on this Bill. A little earlier this evening he mentioned one which I suppose relates to this particular amendment—the MORI poll. I think he said the results were 87 per cent. It asked, "Are you in favour of secret ballots?" As I said to your Lordships' House on Second Reading, that is not the question one needs to be asked to decide if one is in favour of this part of the Bill. The question, "Are you in favour of secret ballots?" does not say, "Are you in favour of secret ballots by direct election, getting rid of all the systems of indirect election and all the existing arrangements that you have in your union?" No one has asked anybody that. What the MORI poll asked was, "Are you in favour of secret ballots?" I am afraid it is the wrong question. If one wants to put the right question, the proper question, it is perfectly fair to suggest that the right and proper question is in this amendment.
Lord Aylestone: In supporting my noble colleague on this amendment, may I remind the Committee what the noble Lord, Lord McCarthy, said on Clause 1 when he was opening this Committee stage? He said, "Let the unions have a choice". We on these Benches are of the opinion that under certain circumstances, where it is clear that the individual trade unionists of a trade union wish to retain their existing electoral system, they should be allowed to do so for a period of five years, provided it is done within
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12 months from the commencement of this Bill. But there must be a test of whether or not the individual trade unionists are in favour of this, and the only possible test can be a secret postal ballot. A little later on in the Committee stage we shall discuss secret postal ballots, but at the moment we are of the opinion that, if a union is to retain its existing system for the élection of its executives, it can be done only through the arrangement of a secret postal ballot.
The Earl of Gowrie: Again, these amendments, Amendments Nos. 8 and 45, are concerned with allowing trade unions to exempt themselves from the Bill's requirements on union elections, although in saying that I accept, of course, that these amendments propose that they should be able to do so only on the basis that the referendum of members be conducted by a secret postal ballot. I can sympathise with the wish of the noble Lords, Lord Rochester, Lord Aylestone and Lord Howie, to ensure that if union members are to be given a choice as to whether the Bill should apply to them, then that choice should be a genuinely free and fair one. But I do not think these amendments remove the Government's fundamental objection to this proposal.
We simply see no justification for allowing trade unions to opt out of the very broad, very basic, very elementary democratic requirements, however democratically they decide to do the opting out. There would also be a certain irony in union members voting in one of these referendums by postal ballot to allow themselves to vote by, for instance, a show of hands and the block vote when it comes to the vital matter of electing their principal executive committee. I do, therefore, ask the Committee to recognise the need for all unions to have these basic electoral procedures just for their principal executive committee.
The noble Lord, Lord Rochester, said repeatedly that he vigorously supports the overall principle of the Bill, and I know that the Social Democratic Party does as well. These amendments are somewhat at variance with that vigorous support and I would, therefore, ask the noble Lord not to press his amendment.
Lord Rochester: I shall be brief. I cannot accept, and I hope that this was plain from what I said at the beginning, that this particular amendment—limited as it is—is at variance with our general support for Clauses 1 and 2. It covers a number of points that have been dealt with in earlier discussion; namely, secret postal ballots; the possibility of there being indirect elections for the principal executive committees of trade unions; and the possibility of there being a degree of option, at any rate, allowed to trade unions within the very strict limits imposed by this amendment.
As this amendment comes at the end of a batch of amendments in which all these points have been covered, and as there is a clear difference of opinion within the Committee on these points, it would be as well at this point to clear the air and to get the position sorted out. Moreover, I have been encouraged by the potential support, for which I am grateful, of the Labour Opposition and I have derived some encouragement from the other side of the Committee, and particularly from the noble Lord, Lord Howie of

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Troon, for which I am also grateful. Therefore, I think that I should press the amendment to a Division.
6.52 p.m.
On Question, Whether the said Amendment (No. 8) shall be agreed to?
Their Lordships divided: Contents, 79; Not-Contents, 112.

DIVISION NO. 2

CONTENTS

Airedale, L.

Listowel, E.

Amherst, E.

Lloyd of Kilgerran, L.

Ardwick, L.

Lockwood, B.

Attlee, E.

Lovell-Davies, L.

Aylestone, L.

McCarthy, L.

Barnett, L.

McIntosh of Haringey, L.

Beaumont of Whitley, L

Mackie of Benshie, L.

Bernstein, L.

Meston, L.

Beswick, L.

Milner of Leeds, L.

Boston of Faversham, L.

Mishcon, L.

Briginshaw, L.

Molloy, L.

Brooks of Tremorfa, L.

Nicol, B.

Bruce of Donington, L.

Ogmore, L.

Chitnis, L.

Oram, L.

Cledwyn of Penrhos, L.

Perry of Walton, L.

Collison, L.

Phillips, B.

David, B.

Pitt of Hampstead, L.

Dean of Beswick, L.

Ponsonby of Shulbrede, L.

Diamond, L.

Roberthall, L.

Evans of Claughton, L.

Rochester, L. [Teller.]

Ezra, L.

Seear, B.

Fitt, L.

Shackleton, L.

Gallacher, L.

Simon, V.

Gifford, L.

Stewart of Alvechurch, B.

Gladwyn, L.

Stewart of Fulham, L.

Glenamara, L.

Stoddart of Swindon, L.

Graham of Edmonton, L

Stone, L.

Grey, E.

Taylor of Blackburn, L.

Grimond, L.

Taylor of Mansfield, L.

Hampton, L.

Tordoff, L.

Hatch of Lusby, L.

Underhill, L.

Hirshfield, L.

Wallace of Coslany, L.

Hooson, L.

Wedderburn of Charlton, L.

Howie of Troon, L.

Wells-Pestell, L.

Irving of Dartford, L.

Whaddon, L. [Teller.]

Jacques, L.

White, B.

Jeger, B.

Winchilsea and Nottingham, E.

John-Mackie, L.

Kilmarnock, L.

Winstanley, L.

Kirkhill, L.

Young of Dartington, L.

NOT-CONTENTS

Airey of Abingdon, B.

Craigton, L.

Allerton, L.

Crathorne, L.

Avon, E.

Croft, L.

Bauer, L.

Cromartie, E.

Bellwin, L.

Dacre of Glanton, L.

Beloff, L.

Davidson, V.

Belstead, L.

De La Warr, E.

Bessborough, E.

De L'Isle, V.

Brabazon of Tara, L.

Denham, L. [Teller.]

Brougham and Vaux, L.

Denning, L.

Broxbourne, L.

Digby, L.

Bruce-Gardyne, L.

Dilhorne, V.

Caithness, E.

Dulverton, L.

Campbell of Alloway, L.

Elles, B.

Carnegy of Lour, B.

Elliot of Harwood, B.

Chelmer, L.

Elton, L.

Cockfield, L.

Faithfull, B.

Colwyn, L.

Fanshawe of Richmond, L.

Cork and Orrery, E.

Ferrers, E.

Cottesloe, L.

Forester, L.

Craigavon, V.

Fortescue, E.

Craigmyle, L.

Gainford, L.

212

Gardner of Parkes, B.

Orkney, E.

Glanusk, L.

Pender, L.

Gowrie, E.

Portland, D.

Gray of Contin, L.

Radnor, E.

Greenway, L.

Reigate, L.

Gridley, L.

Renton, L.

Hailsham of Saint Marylebone, L.

Renwick, L.

Rochdale, V.

Halsbury, E.

Rodney, L.

Hives, L.

St. Aldwyn, E.

Home of the Hirsel, L.

St. Davids, V.

Hornsby-Smith, B.

Saltoun, Ly.

Hylton-Foster, B.

Sandford, L.

Kitchener, E.

Savile, L.

Lane-Fox, B.

Selborne, E.

Lauderdale, E.

Sharples, B.

Lawrence, L.

Skelmersdale, L.

Lindsey and Abingdon, E.

Stamp, L.

Long, V.

Stodart of Leaston, L.

Lucas of Chilworth, L.

Swansea, L.

McAlpine of West Green, L.

Swinfen, L.

MacLehose of Beoch, L.

Swinton, E. [Teller.]

Mancroft, L.

Teynham, L.

Marshall of Leeds, L.

Thomas of Swynnerton, L.

Massereene and Ferrard, V.

Thorneycroft, L.

Maude of Stratford-upon- Avon, L.

Tranmire, L.

Trefgarne, L.

Minto, E.

Trumpington, B.

Molson, L.

Ullswater, V.

Mottistone, L.

Vaizey, L.

Mowbray and Stourton, L.

Vaux of Harrowden, L.

Munster, E.

Vickers, B.

Northchurch, B.

Whitelaw, V.

Nugent of Guildford, L.

Wise, L.

Onslow, E.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendments Nos. 9 and 10 not moved.]
7.4 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 11:
Page 2, line 30, at end insert ("and whether or not it has by virtue of the rules power to delegate functions to other persons or bodies.").
The noble Lord said: I move Amendment No. 11 which is concerned with the fundamental question of a definition in this part of the Bill. As my noble friend Lord Howie put it with felicity, the tight bandage of Part I of the Bill controls the elections to and the procedures for election to the principal executive committee. The principal executive committee is defined in subsection (5) of this clause as meaning:
"the principal committee of the trade union exercising executive functions, by whatever name it is known".
The object of this amendment is to add the words on the Marshalled List:
"and whether or not it has by virtue of the rules power to delegate functions to other persons or bodies".
In my submission, this is an example of that amalgam of legal problems, policy issues and practical problems, of which I spoke earlier. Most trade union rule books naturally allow the national executive committee, as most trade unionists would know it, to delegate its functions. The rule book of the Transport and General Workers' Union allows the general executive council to:
"have power generally to carry on the business of the Union, and may delegate such of their powers to the general secretary as they may deem necessary".
In a later rule it allows the general executive council to delegate:

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"to any national or regional trade group committee … such of their powers as are necessary or expedient and consistent with the powers and duties of such committees as in these rules provided".
That is the simple case.
Then there is the rather more complicated case which one finds, for example, in the rule book of the National Union of Public Employees, where the executive council may form an economic committee, an organisation committee and certain other committees for:
"earning out such functions as may be assigned to them by the Executive Council".
In the same rule book one meets a phenomenon which is not unknown in others: national committees for certain industry sections of the union—in this case water, the universities, local government and the health service—which also have a relationship to the executive, which it would take too much time for me to detail but which is one of interconnection with the carrying out of the functions of the executive council.
There are more complex cases in union constitutions. One which was discussed in another place is that of the British Dental Association which has a representative board, a council and something which is called an executive, and it is certainly by no means transparently clear which of those is the body to which subsection (5) of this Bill applies. This would be a matter which had to be decided by a court. I stop my illustrations short with those unions but I have a much longer list. Of course, the Government will know of these matters. Even the amalgamated engineering union, the AUEW, has a national committee and a national executive, and although its rule book is not as complicated as that of the British Dental Association, it would have to be looked at carefully.
This is important, first, because of the uncertainty which still exists in the Bill: and, secondly, because it illustrates something about the nature of this legislation. First, I deal with the difficulty in the Bill. In these various rule books a court would have to decide which body, if there was doubt, "exercised" the executive functions. The Government have chosen this word carefully and stuck to it through some pretty close discussion in another place. The Oxford English Dictionary tells us the main meanings of the word, "exercise":
"to put in operation, employ, apply or make use of; to carry on, carry out, perform";
and then, of functions:
"To fulfil, exert, possess; to perform one's office".
One does not get a hint of delegation there. One gets a very clear statement that in order to "exercise functions"—the words that the Government have chosen—one carries them out, one performs them; one does not delegate them to someone else, to use the words in the NUPE rule book, "to carry out". Therefore a problem arises simply on the interpretation of this amendment, which I am sure the noble Earl will regard as an attempt to help the Government, because in helping the Government we are also trying to help the unions and to help people who might otherwise have quite pointless litigation. The power of delegation of function does not by itself take the body out of the definition of subsection (5).
I hesitate to use the further gem that I found in the various dictionaries; but as all these Oxford people
214
have been talking about their philosophy, perhaps I may say that exequatur in relation to the authorisation of the publication of a Papal bull or the recognition of a consul by a government to which he is accredited, means "let him perform", not "let him delegate".
Therefore, the amendment would cure a drafting infelicity of which the Government have now been guilty for many months, and of course it would save money not to have litigation on this. But the further point is that it shows that the nature of organisations of people is such that power is something which is diffused. It is not a simple matter to know where power lies in an organisation. Merely to define the principal executive committee in this way will not be the end of the matter.
Our amendment might help, but the Government will be forced along this slippery slope, along from the tight bandage to an ever tighter bandage, because they may find that unions draft their constitutions in such a way that they do not like the bodies to which some procedure of election is being used which is not to their liking. So the important thought behind the amendment is that the Government should think again about whether they can, according to their own philosophy, simply legislate for something which they choose to call on this definition a "principal executive committee". That is for the long-term. For the short-term this is an amendment which at least would avoid some of the ambiguities in the subsection. I beg to move.
The Minister of State, Scottish Office (Lord Gray of Contin): This amendment raises the question of which body in a trade union is its principal executive committee. In fact, the Bill is quite specific on this point. Clause 1 (5) reads:
"In this section 'principal executive committee', in relation to a trade union, means the principal committee of the trade union exercising executive functions, by whatever name it is known.".
That seems to me to be a perfectly clear definition. It is one which has been embodied into earlier legislation in Section 15(7) of the Employment Act 1982, where its use has given rise to no difficulties of interpretation. In short, it means the union executive, and I can assure the noble Lord that the fact that the executive may delegate, or have power to delegate, certain of its functions will not normally affect the fact that it remains the principal executive committee of the union for the purposes of the Bill.
I use the word "normally" only because although the question of whether or not a committee has the power to delegate some or all of its functions is irrelevant, the extent to which it actually does so might bear on whether or not it is the principal executive committee. If, for example, the principal executive committee of a union was suddenly to delegate all of its functions to some lower body, then there would obviously be very considerable doubt about whether the higher body was in fact still the principal executive committee. The lower body, which was exercising all the functions of the higher one, could well—and I think rightly—be held to be the principal executive committee of the union for the purposes of the Bill. But, beyond that extreme case, the Bill imposes no restriction on the ability of the executive to delegate certain of its functions to other bodies within the union. The amendment is thus unnecessary and I trust

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that on that basis the noble Lord might agree to withdraw it.
Lord Wedderburn of Charlton: I can dissent from very little that the noble Lord has told your Lordships' Committee, except his conclusion. Of course the definition has caused no problem under the Employment Act 1982 because no issue has yet arisen in court in which the problem occurs; but it will. Secondly, it is of course the case that in most situations one will see what is the executive committee; but I come back to my example of the NUPE rule book. The noble Lord gave us an extreme example. But let us take the NUPE rule book, under which the executive council can delegate another committee to carry out certain of the functions. That is what the rule book says. Carrying them out is exercising them. It is still responsible to what the rule book calls the executive, but then when the ordinary executive of a union carries out its functions it is responsible to some other body, usually to biennial conference, annual conference, or whatever it may be.
To say that there is ultimate responsibility—if that were the test—would be no answer at all. Indeed, it would take one out of the subsection. Responsibility is legislative, whereas exercising the functions in this subsection is executive. The executive function is not clear in many bodies quite apart from trade unions, and it is not a simple matter.
Apart from anything else, the noble Lord's reply is one that I would hope the Government would consider again. He said to me, and to your Lordships through his proposition, "I assure the noble Lord that there is no problem". We have heard that a number of times. I am sure that spokesmen of my own party, when sitting where the noble Lord now sits, gave the same assurance, only to be upset by the Court of Appeal, and by noble and learned Lords in your Lordships' Judicial Committee, because there was a problem where the situation was not foreseen.
All that we say is that it is a typical example in employment legislation where the Government are peculiarly resistant to accepting what they see as unnecessary amendments; amendments that could do no damage, but which many other people see as amendments which could possibly save costs in litigation. It is a pity that the Government take the attitude that they do. It is a matter to which perhaps we could come back in another connection on Report, and on that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 12 not moved.]
7.14 p.m.
On Question, Whether Clause 1 shall stand part of the Bill?
Lord McCarthyme to the central issue of Clause 1. It is necessary to point out to the Committee that Clause 1 of this Bill is not Clause 2 of this Bill, because the noble Earl has been telling us throughout this Committee stage that Clause 1 is reasonable, flexible, and easy to accommodate because Clause 2 is
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reasonable, flexible, and easy to accommodate. Later this evening we shall argue that Clause 2 is a horror, that it could have been written in order to trap the unwary lay official of a trade union into going beyond the law. But that is Clause 2, and we shall be talking about that after dinner. This is Clause 1.
What Clause 1 does is simple: it imposes a particular method of election on trade unions. What we have to argue is whether or not the Government have made a case out for that this evening. We say on this side of the Committee that we have not heard any case at all. What the noble Earl has been saying to us comes to the following. Trade unions are different. They are different from clubs. Of course you do not have to impose direct elections on clubs; they are different from trade unions. Professional associations are different from trade unions. You do not have to impose direct elections on professional associations. They are different. Companies are different. Parliament is different. Everything is different from trade unions, and therefore everything else can be left alone. But trade unions must be regulated. Trade unions must have this particular form of direct election imposed upon them by law. They must be denied—and this is the essence of Claue 1—the facility which all these other organisations have, and quite rightly utilise, if they want to use indirect elections. That is what the noble Earl has been saying.
It is no good the noble Earl, when he gets annoyed, saying that I am an Oxford don. He is a Balliol man. It has nothing to do with that, either. It has to do with common sense. It has to do with not having an answer to a question. It has to do with asking—amd I shall ask over and over again—how does it come about that the trade union is so different that this peculiar, special, nasty restriction must be imposed on it but not on the club, the professional association, the company, and the Prime Minister? We have not been told the answer to that, and I suspect that we shall not be told. That is quite simply because there is not a reason, except that the Government want to be extremely difficult towards trade unions. That is the only possible conclusion you can come to. That is the evidence we have had tonight. We have tried to save them from the extremity of their own position. We have tried to cover their nakedness by suggesting a number of possible ways of modifying their extremity.
We have said, "Since you cannot justify it, since you do not know why it is that trade unions are so different that they are not like the Prime Minister, why not let the members have a right to decide? That is what you have been going on about all over the country—give the trade unions back to their members". I do not know who took them away and who has them, but we say, "All right, let the members decide this one". We have been joined by other parties. In the final version of the "let the members decide" concept we had the most gentle form of that proposition moved by the noble Lord, Lord Rochester, which allowed the use of what I believe to be the pernicious Clause 2 of the Bill. But we say, "All right, use Clause 2 of the Bill. Have a postal ballot, but let the members decide. That might cover some of your nakedness". The Government say, "No".
My noble friend Lord Wedderburn said, "All right, then don't do it for everyone. Do it for most people.

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Let a few people be indirectly elected. Make it 60 per cent or 70 per cent." They said, "No, we are not having that". So we said, "All right, why not take Parliament as the model?". This is really what the noble Lord, Lord Howie, did. His amendment was modelled on Parliament. How anybody who sits in this House and who does not advocate its abolition can say that he does not believe in the system of appointment, including ex-officio appointments, and in indirect elections, I do not know.
But never mind, here we sit in this House of Parliament, and down at the other end they operate the Howie system. They have a direct election, and from among that number there emerges a Cabinet, a Government, and a Prime Minister. It is good enough for them and one cannot say that they do not have the powers that trade unions have; one cannot say that they do not have the privileges that trade unions have; and one cannot say that they are not as important as trade unions. All one can say is that they are different. Therefore, because they are different these nasty things can be imposed on them.
I do not speak as an Oxford don: I speak with simple common sense, but there is a name for the fallacy which says that something which is different can somehow be made to do something which is awful just because it is different. It is called the "excluded middle" and that is what this is about and why I oppose it.
Viscount Massereene and Ferrard: May I interpose here? The noble Lord, Lord McCarthy, mentioned clubs and various other organisations. But one cannot in any way compare a club to a trade union. Trades unions have vast powers altogether, although the small trade unions perhaps do not. These powers enable them completely to hold the public to blackmail. I do not want to go into all this. We know all the old arguments about that, but one might as well say that a great number of local authorities are different.
Lord McCarthy: Yes.
Viscount Massereene and Ferrard: So they are. It depends to a great extent on their geographical position, but all members in a local authority and all members of the adult population in that community have a vote, even those who are not ratepayers. One could call all local authorities slightly undemocratic from that point of view, that on the average only one-third or half the members pay rates but all the others nevertheless also have a vote. I cannot see that they are all that different from unions. I do not see why a union's executive should not have to be elected on a broad vote of the members, but I will not go on labouring this point.
I mentioned this years ago and I am so delighted to see today that the Government have now produced a Bill to try to see that all members of a trade union, apart from certain sections as defined in the Bill, have the right to choose the executive they want.
Lord McCarthy: I do not want to repeat the speech I have just made. The point I was making I thought was simple. It was that every other institution including clubs and Parliament is allowed the privilege of an indirect election; the Government want to take that away from trade unions and they do not justify it.
Lord Renton: I think that the Government have Clause 1 about right, although I have misgivings about Clause 2 as it stands. I am very surprised at Clause 1(6), which reads:
"Nothing in this Part shall affect the validity of anything done by the principal executive committee of a trade union"
Under Part I of the Bill the things that will have to be done will concern voting for elections within the union. Much that will have to be done to carry out the provisions of this part of the Bill will have to be done, of necessity, by the principal executive committee. If anything goes wrong in the sense mentioned in Clause 3—which says:
"Any person who claims that a trade union has failed to comply with one or more of the provisions of this Part may apply to the court for a declaration to that effect"—
when the court is asked for a declaration, will it have thrown in its face Clause 1(6) which says that nothing shall affect the validity of anything done by the principal executive committee? It seems to me to be a strange inconsistency and it is one which I hope my noble friends on the Front Bench will be able to explain.
The Earl of Gowrie: If I may, while it is fresh in the minds of the Committee, I shall take up the point made by my noble friend Lord Renton. It might be helpful if I explained the meaning of subsection (6) as its wording is, of necessity, rather more legalistic than most of the provisions in Part I.
Subsection (6) has two purposes which are, in essence, opposite sides of the same coin. The first is to protect the interests of union members. Union rule books show that many day-to-day functions of unions which are of obvious benefit to the members are within the authority of the principal executive committee—for example, hearing appeals from members and authorising payment of benefits. Clause 1(6) ensures that an executive is not freed from these kinds of responsibilities simply because one or more of its members have not been elected in accordance with the requirements of Part I.
The second purpose of the clause is to ensure that trade unions are not freed from both their various liabilities and responsibilities to those outside the union both under statute and under union rules by failing to comply with Part I of the Bill. It would be quite unacceptable if unions could, for instance, escape liability under the 1980 and 1982 Employment Acts for calling unlawful industrial action by failing to elect the members of their executives in a proper democratic fashion. Indeed, it would be absurd if infringement of one Act amounted to a licence to break another. Perhaps my noble friend would be kind enough to study what I have said when it is printed in Hansard. If he is not satisfied, as I hope he will be by what I have said, perhaps he would return to it on Report.
Lord Renton: I am most grateful for that explanation. I shall want to study it because I feel that subsection (6) as drafted does not bear out what my noble friend has said.
The Earl of Gowrie: It would be helpful to the Committee if my noble friend could look into it and no doubt return to the matter if he feels that he should.

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We have had a long discussion on Clause I Stand Part which has enabled us to focus more clearly on the main effects which Part I of the Bill will have. We have had useful discussions, in spite of the odd philosophical digression, in particular on the issue of whether trade unions might in some way be allowed to opt out of the Bill's requirements. We have examined the detailed provisions of the clause in considerable depth. That I am sure will be helpful when we come to examine the later clauses.
I am not at all concerned at this point to make debating points, particularly when faced by an old hand at the game like the noble Lord, Lord McCarthy, but I would gently point out to him that there is only one Parliament and that all the enfranchised are able to vote for it. To start comparing parliamentary constitutions and the constitutional position of the executives within them with the plurality of unions and the different rôles of unions, I do not think would stand up to serious scrutiny or even the scrutiny of a Balliol man.
I had hoped that the discussion would also have been helpful in bringing out some signs of realisation from noble Lords opposite that just possibly the trade union movement is not a movement, like other institutions, where all is always for the best in the best of all possible worlds. I regret to say that in this I have been a little disappointed. Criticisms of some union practices, which are absolutely common currency among union members, and indeed common currency among some present and former union leaders, become in the minds of the Opposition unwarranted attacks on trade unionism as a general principle when enunciated by the Government. Again and again we hear about unwarranted and unjustifiable interference in the internal affairs of trade unions. In this issue, as indeed in many others, the Labour Party is continuing to bear out its role as the bastion of true conservatism in this country. We have had little sign of any movement today.
I think that noble Lords opposite ought genuinely to reflect on a number of facts. I think they should ask themselves why it is that in a recent poll no less than 83 per cent. of union members favoured secret ballots for electing trade union leaders.
Lord McCarthy: I did point out when the noble Earl was out of the Chamber that the particular poll about which he talks does not in any way sanctify the Bill. What people were asked was: Are you in favour of secret ballots? What this Bill does is to do away with indirect elections. They were not asked to sanctify Part I of this Bill.
The Earl of Gowrie: I am not seeking to use this to "sanctify", as the noble Lord puts it, the Bill. I am seeking to say that an examination and scrutiny of practices committed by trade unions is overwhelmingly wanted by trade unionists themselves. I would not call into account one ballot, or a ballot of this nature, if it were not part of a general tendency. If it were not part of a general tendency, it would not have been fewer than 40 per cent. of all trade unionists who voted at the last election who supported the Labour Party. More than 60 per cent. supported
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parties (this is not a narrow point) which were committed to the reform of trade union democracy. Again, I make the point that it is the former colleagues of the noble Lord, Lord McCarthy, those men and women with experience of government in the Labour Party and who have moved into the Alliance, who are of the same view as we are in this respect.
Clause 1 is the foundation on which Part I of the Bill rests. The central proposition is that the members of the governing bodies of trade unions should be elected in an individual secret ballot at least once every five years. That is the proposition which noble Lords opposite are asking the Committee to reject. The fact that they are asking us to reject this proposition is precisely why not only are they not in office but they have lost the support of so many of their own supporters and of so many ordinary trade union members.
The Trade Union Bill will end the practice of elections conducted by means of the kind we have heard—means so arcane that sometimes fewer than 2 per cent. of the members vote. It will end the show of hands; it will end the block vote—that charade of democracy in which the votes of thousands are cast on the basis of the preferences of a handful of people. I have never in my life heard any philosophical or constitutional justification of the block vote. The Bill will radically alter, therefore, the practice of democracy in the trade union movement in this country. It will do so because the Government who are bringing it forward have received overwhelming support at the polls for this legislation, and people want to get what they voted for. Clause 1 is the cornerstone of the reforms, and I therefore ask noble Lords to support it.
7.34 p.m.
On Question, Whether Clause 1 shall stand part of the Bill?
Their Lordships divided: Contents, 130; Not-Contents, 42.

DIVISION NO. 3

CONTENTS

Airedale, L.

Crathorne, L.

Airey of Abingdon, B.

Croft, L.

Allerton, L.

Cromartie, E.

Amherst, E.

Dacre of Glanton, L.

Attlee, E.

Davidson, V.

Avon, E.

De La Warr, E.

Aylestone, L.

Denham, L. [Teller.]

Bauer, L.

Denning, L.

Beaumont of Whitley, L.

Diamond, L.

Beloff, L.

Digby, L.

Belstead, L.

Dulverton, L.

Bessborough, E.

Elles, B.

Brabazon of Tara, L.

Elliot of Harwood, B.

Brougham and Vaux, L.

Elton, L.

Broxbourne, L.

Evans of Claughton, L.

Bruce-Gardyne, L.

Ezra, L.

Buxton of Alsa, L.

Faithfull, B.

Caithness, E.

Fanshawe of Richmond, L.

Campbell of Alloway, L.

Forester, L.

Carnegy of Lour, B.

Gainford, L.

Chelwood, L.

Gardner of Parkes, B.

Colwyn, L.

Gladwyn, L.

Cork and Orrery, E.

Glanusk, L.

Cottesloe, L.

Glenarthur, L.

Craigavon, V.

Gowrie, E.

Craigmyle, L.

Gray of Contin, L.

Craigton, L.

Greenway, L.

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Gridley, L.

Perry of Walton, L.

Halsbury, E.

Portland, D.

Hampton, L.

Reigate, L.

Hankey, L.

Renton, L.

Hanworth, V.

Renwick, L.

Harris of Greenwich, L.

Rochdale, V.

Hives, L.

Rochester, L.

Home of the Hirsel, L.

Rodney, L.

Hooson, L.

St. Aldwyn, E.

Hornsby-Smith, B.

St. Davids, V.

Howard of Henderskelfe, L.

Saltoun, Ly.

Hylton-Foster, B.

Savile, L.

Kinnaird, L.

Seear, B.

Kitchener, E.

Selborne, E.

Lane-Fox, B.

Sharples, B.

Lawrence, L.

Sherfield, L.

Lindsey and Abingdon, E.

Simon, V.

Lloyd of Kilgerran, L.

Skelmersdale, L.

Long, V.

Slim, V.

Lucas of Chilworth, L.

Stamp, L.

McAlpine of West Green, L.

Stodart of Leaston, L.

McGregor of Durris, L.

Swinton, E. [Teller.]

Mackie of Benshie, L.

Taylor of Gryfe, L.

Mancroft, L.

Thomas of Swynnerton, L.

Marsh, L.

Tordoff, L.

Massereene and Ferrard, V.

Tranmire, L.

Maude of Stratford-upon-Avon, L.

Trefgarne, L.

Trumpington, B.

Meston, L.

Ullswater, V.

Minto, E.

Vaizey, L.

Molson, L.

Vaux of Harrowden, L.

Monson, L.

Vickers, B.

Mottistone, L.

Whaddon, L.

Munster, E.

Winchilsea and Nottingham, E.

Northchurch, B.

Norwich, Bp.

Winstanley, L.

Onslow, E.

Wise, L.

Orkney, E.

Wynford, L.

Pender, L.

Young of Dartington, L.

NOT-CONTENTS

Ardwick, L.

McCarthy, L.

Bernstein, L.

McIntosh of Haringey, L.

Beswick, L.

Mishcon, L.

Boston of Faversham, L.

Molloy, L.

Brooks of Tremorfa, L.

Nicol, B.

Cledwyn of Penrhos, L.

Oram, L.

Collison, L.

Phillips, B.

David, B.

Pitt of Hampstead, L.

Dean of Beswick, L.

Ponsonby of Shulbrede, L. [Teller.]

Fitt, L.

Gaitskell, B.

Rhodes, L.

Gallacher, L.

Shackleton, L.

Graham of Edmonton, L. [Teller.]

Stallard, L.

Stewart of Alvechurch, B.

Hirshfield, L.

Stewart of Fulham, L.

Houghton of Sowerby, L.

Stoddart of Swindon, L.

Howie of Troon, L.

Stone, L.

Irving of Dartford, L.

Taylor of Mansfield, L.

Jeger, B.

Underhill, L.

John-Mackie, L.

Wedderburn of Charlton, L.

Listowel, E.

Wells-Pestell, L.

Lockwood, B.

Wilson of Rievaulx, L.

Resolved in the affirmative, and Clause 1 agreed to accordingly.
7.42 p.m.
Lord Denham: Before I move that the House do now resume, I think it would probably be helpful to your Lordships to know that we will not come back to this particular Bill before a quarter to nine. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Child Abduction Bill
7.43 p.m.
Baroness Faithfull: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Faithfull.)
On Question, Motion agreed to.
House in Committee accordingly.
[The VISCOUNT SIMON in the Chair.]
Clause 1 [Offence of abduction of child by parent etc.]:
Lord Mishcon Lord Mishcon moved Amendment No. 1:
Page 1, line 8, leave out ("sixteen") and insert ("fourteen").
The noble Lord said: It may be for the convenience of the Committee if I make two things abundantly clear. The first one is—and I speak personally but I believe I have all my friends with me, in fact—this is a good and necessary Bill. Therefore it is our hope that the Bill will receive parliamentary sanction in both Houses as soon as possible. That leads me automatically to the next thing which I have to say. It is this: although all the amendments that I am going to move are, in my view, sensible amendments and ones which would better the Bill, it is not my intention at any time, because of the first point I made, to divide the Committee because I believe that might lead to an unacceptable conclusion for this Bill; namely, that it would take time for the amendment to be considered in another place, and that might in fact defeat the early passing of this necessary Bill.
I hope that will not in any way prevent your Lordships, when asked if you are content with the amendment, from giving strong vocal expression to your views, because that at least might impress the Government Benches and the sponsor of this Bill and sound another place to see whether the amendment is not in fact a good one. With the permission of the Committee, in moving Amendment No. 1, I propose to speak to Amendments Nos. 4, 5 and 7.
Amendment No. 4: Page 3, line 9, leave out ("sixteen") and insert ("fourteen").
Amendment No. 5: Page 3, line 17, leave out ("sixteen") and insert ("fourteen").
Amendment No. 7: Page 4, line 4, leave out ("sixteen") and insert ("fourteen").
Your Lordships will see that I am on the point of the age which should be the governing factor of this Bill, and of course I am referring to the age of the child concerned. In my view, the age which has been selected in this Bill is quite illogical. It is the age of 16, and I will say why I think it is illogical in a moment, if I may. It also happens to be completely contrary to the recommendations of the Criminal Law Revision Committee in their 14th Report on offences against the person, and this Bill is supposed, in the main, to follow the recommendations of that committee.
That committee consisted of a number of experienced people who sat and deliberated upon all the matters mentioned in their report, and certainly on

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the question of child abduction; and it does not seem to be very sensible that when a Committee expressly gives its attention to important matters such as the question of age their recommendations should in fact be over-ruled. I will refer, if I may to page 102 of their report. It is Cmnd. 7844, and I am reading from paragraph 239:
"We consider that an age limit of 14 is appropriate for these offences. If a person unlawfully detains a child above that age without the child's consent he may of course be charged with unlawful detention. If, however, a child over 14 consents to be taken away from his or her parents"—
and (if I may say this in parenthesis) it is that matter that this Bill deals with—
"we do not consider that any offence should be committed, unless the taking is for unlawful sexual purposes. Practical reasons have led us to fix the age at 14 since parental control over that age may be difficult or non-existent".
The experienced members of the committee, after considering the matter, and with their knowledge of what life is like in the average family, came to the conclusion that it would be wrong to make the age above 18. I could have understood it if those responsible for this Bill had said: "We don't think we can follow the line recommended by the committee because after all children in care, children who are being dealt with in the Family Division where there are custody orders made, care and control orders made and maintenance orders made, in both cases go up to the age of 18."
So I could have understood it if those connected with this Bill had decided to use the age of 18. They have used the judgment of Solomon upon this Bill, but I do not think with the wisdom that Solomon was famed for, because they have said, "No" to 14, as recommended by the committee, "No" to 18, which might have been the logical alternative, and they have dived in between and made the age 16. That seems to me to be a not terribly clever thing to have done. I ought to mention, because I want to make it thoroughly clear for those interested in the law in Scotland. that I have endeavoured in the amendments to which I am speaking to make the part of this Bill which deals with Scotland consistent and therefore, again, I have sought in the amendments to alter the age from 16 to 14. I beg to move.
Baroness Faithfull: I fully understand the noble Lord's reasoning in tabling this amendment, together with Amendments Nos. 4, 5 and 7, which would lower the age of a child in respect of whom the offence of abduction under this Bill could be committed. This amendment seeks to bring the age of the child into line with the recommendations of the Criminal Law Revision Committee, as the noble Lord, Lord Mishcon, has explained, on which much of the Bill is founded.
Perhaps I may explain why on further consideration 16 was thought to be the right age to which protection from abduction should extend. First, in addition to implementing the Criminal Law Revision Committee's views, the Bill is designed to fill any gap in the law which might exist. We must be confident that this Bill makes it clear beyond peradventure that it is criminal for a parent to take a child away unilaterally until that child is of a responsible age. Any
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discussion of what is a responsible age must of course be arbitrary. I was struck by the observation of the noble Lord, Lord Mishcon, at Second Reading and again today, that 18 years is the age at which care and custody orders cease to have effect. I have thought about whether the age limit in the Bill should be raised rather than lowered, but I believe that 16 is right for this Bill. A 16 year-old can marry and take certain decisions about sexual relations. He or she can leave school and live on his own income, and more to the point he can express his own will and thoughts with clarity.
Of course, logic is most important, but it does not always work with people. I speak now as one who has been a chidren's officer and a director of social services, and who stood in loco parentis to children who were committed to the care of the local authority until they were 18. In my capacity as a children's officer and a director of social services, I also dealt with the casework in cases of adoption, divorce, and custody being given to one parent.
Adolescence is a strange time in a young person's life, and in my experience although children are now much older at a younger age than they used to be, nevertheless there is a very big difference in dealing with children of 14 and 16. The age when they have left school, when they are earning, when they are seeking to be independent of their parents and yet dependent on their parents, is a very difficult one: and in my experience—with a few exceptions—that difficult age is reached not at 14 but at 16. That is the age when young people are seeking to be independent and are rebelling against their parents. It seems to me we should be putting at risk a number of children of 14 who cannot easily stand up for themselves; but at 16 they know that they are independent of their parents in several ways. I agree with the noble Lord, Lord Mishcon, that if we were going to be logical we would recommend 18. But if we are taking into account the adolescent stage of young people, I believe that 16 is the right age rather than 14, although I know that there might be some differences.
There is a second point, which is that when young people have been brought up by one parent and have been in constant touch—as indeed they should be—with the other parent, then, when they are seeking to be independent, particularly if they have had a deprived and difficult early childhood, they rebel against the parent who has been bringing them up. At that stage, I used to find that they very often wanted to go to the other parent. The grass was always greener in the other field. I found that, very often, they would go to the other parent and then after a while would return to the parent who had been bringing them up. But I did not find that this age of rebellion came at 14. It was much more likely to come at 16 when they were independent, earning their own living and permitted to live away from their parents. So I would strongly recommend 16, while understanding the reasons which the noble Lord, Lord Mishcon, has given for saying 18, and I submit that 14 is too young.
Lord Meston:I am afraid that I, too, am not able to support the amendment. All age limits are arbitrary, but 14 is too low. This is a good Bill and to reduce the age to 14 would diminish it. Children do not cease to

225
need protection at the age of 14, and they do not cease to be entitled to protection at the age 14. Not all children between 14 and 16 are sophisticated, and one must remember that Clause 1 is aimed at international kidnapping which can have irrevocable and traumatic effects. An offender under Clause 1 may well be in breach of a custody order or a care order which lasts until 18; but this does not stop the aggrieved parent from legitimately applying to vary a court order by proper processes of law, in which case the child's wishes would properly be taken into account. It does, however, prevent an aggrieved parent taking the law into his or her own hands.
Clause 2 also covers a very wide range of offences from the trivial to the most serious; for example, where a child might be abducted for the purposes of child prostitution or something of the sort. The second point is that in law—and I suggest in practice—parental responsibilities and discipline do not cease at 14, although sometimes one is tempted to wish that they ended much earlier. The other point is this. One has heard of illogicality. In fact, there is considerable consistency in the age of 16 with other statutes. There is no magic in consistency; indeed, I am glad to say that lawyers thrive on inconsistency. But one looks at the various purposes for which 16 is the magic age. It is the age of consent for medical treatment, and treatment of that kind, and it is the age of consent for sexual intercourse. It is the age limit under a number of statutes. When looking at my copy of Archbold today, I noticed that it is the age limit under Sections 1 and 3 of the Children and Young Persons Act 1933 and under Sections 6, 26 and 28 of the Sexual Offences Act. And 16 is the school leaving age. Fourteen was the age limit under the old child stealing offence in the Offences against the Person Act. To preserve the 14-year-old limit would not be a step forward; it would be a step backwards to the 19th century. One has to remember also that there is a grey area in cases involving 14 to 16 year-olds. I suggest that that grey area would be more than adequately covered by the discretion which this Bill invests in the Director of Public Prosecutions. Accordingly, I cannot support the amendments.
8.1 p.m.
The Lord Bishop of Norwich: Although I always listen with the greatest respect and attention to the noble Lord, Lord Mishcon, he has not won me this time. He often does and he often helpfully corrects me when I am wrong. But I am not with him on this amendment. I want to refer in particular to the words of the noble Baroness, Lady Faithfull: "adolescence is a strange time". Those of us who are parents will remember, if we are elderly parents and grandparents—as I am—that the age of 14 to 16 is a very turbulent time. It is a time when it seems that 14 to 16-year-olds grow up three times as fast as people of other ages. Therefore they do not understand themselves or know themselves quite so much as they think they do and as we may hope that they do. So on pure grounds of caution, compassion and care I should like to say that I have been swayed more by the noble Baroness, Lady Faithfull, than by the noble Lord, Lord Mishcon, both of whom I hold in the greatest respect.
Lord McGregor of Durris: I shall not take up the time of the Committee by rehearsing the arguments with which the amendment has already been opposed, because I support them all. If the noble Lord, Lord Mishcon, will forgive my saying so, the point that he made was a lawyer's point—cogent as such but not touching the reality or experience which I have had of children of that age. It should also be added to what has already been said that at the age of 14 there is a very wide difference in the degrees of maturity exhibited by children. And not only is there a wide difference in the range of maturities. The same child may differ very considerably from day to day. It seems to me that all the arguments point to selecting the age of 16 as the safe decision.
Lord Elton: With the greatest brevity and only for the sake of completeness, because we have an almost entirely complete set of arguments before us. I would just remind the noble Lord, Lord Mishcon, in case he has forgotten (although I do not suppose he has) that Article 4 of the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children says:
"The convention shall apply to any child who was habitually resident in a contracting state immediately before any breach of custody or access rights. The convention shall cease to apply when the child attains the age of 16.".
The noble Lord, Lord Mishcon, has now been dealt a full set of cards. I leave him to add them up.
Lord Mishcon: On this occasion the addition is not difficult. I am so glad that when I moved the amendment I announced to the Committee that I had no intention of dividing it. Therefore it enables me to retreat with some dignity, having listened to all the speeches which have been made in your Lordships' Committee. Apart from hearing the noble Baroness, Lady Faithfull, who always speaks with such experience and tolerance on matters of this kind, and the right reverend Prelate, who knows, without my having to embellish the remark, that he has my deepest respect for any view that he ever expresses, it was a great delight to hear the noble Lord, Lord Meston, again make a contribution to our proceedings. I can only say—there is no arrière-pensée behind this—that I wish we heard him more often, because he has obviously got such a contribution to make.
I can only, as I said, retire with some dignity—apart from not dividing the Committee—by making two points. First, at least I am in the good company of the right honourable Lord Justice Lawton, the right honourable Lord Justice Waller, Professor Sir Robert Cross—I shall not mention the names of all the eminent people who formed the committee which made this recommendation.
Lord Elton: I understand that Lord Justice Lawton was consulted about this change and agreed to it.
Lord Mishcon: It is within the ability of a great judge to change his mind. I was merely referring to his original opinion when I quoted him. My second point is that I believe it is absolutely right that we should have debated this matter. The Bill had a very short

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tenure in another place, for very good reasons. The age question was not, I believe, debated there—certainly not at any length. It is right that, having gone away from the recommendation of the committee, your Lordships' Committee, with its usual care—especially when it comes to the young and the under privileged—should have allowed me to put the point of view that I did in this amendment. In all the circumstances, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 2:
Page 2, line 24, leave out from ("him") to end of line 31.
The noble Lord said: I believe that here I am on stronger ground. In moving Amendment No. 2, may I also, with the permission of the Committee, make it clear that something has gone wrong, either at my end or at the Public Bill Office end. I intend to take all the blame and to say that it must be at my end. I intend to move only Amendment No. 2. When Amendment No. 3 is called I shall say, "Not moved".
This amendment is important. Your Lordships will know of the defences that are provided for in the Bill. They are set out in Clause 1(5) on page 2. The first two sets of defences seem to be thoroughly reasonable:
"A person does not commit an offence under this section by doing anything without the consent of another person whose consent is required under the foregoing provisions if—

(a) He does it in the belief that the other person—

(i) has consented; or

(ii) would consent if he was aware of all the relevant circumstances; or

(b) he has taken all reasonable steps to communicate with the other person but has been unable to communicate with him".

Then follows paragraph (c), which is a most extraordinary defence:
"or
(c) the other person has unreasonably refused to consent".
If we leave this paragraph in the Bill—I should be so interested if the noble Lord, Lord Meston, could make a contribution on this amendment, too—it means this: that any parent could say, "I don't think I am going to try to go further than this. I have asked the other parent. My former wife has said, 'No'. I think she has been thoroughly unreasonable in saying 'No', and I am going away with the child. If I am charged, I shall argue before the court, at great length, no doubt, that in my view my former spouse unreasonably refused to consent".
This means that on possibly every occasion when the provision is invoked, where there has been communication between the spouses, then the court of necessity must listen to a whole argument (unless it falls within the proviso in lines 26 to 31, which are obvious exceptions) as to whether the father or the mother who took the child away did so honestly believing that the other person was unreasonable.
It is not for the court to decide whether the other person was unreasonable; as I understand it, it would have to be the belief of the parent concerned that the other spouse was unreasonable in refusing consent. To me, this drives a coach and horses through the provisions of the Bill—quite apart from elongating the proceedings in court and making them thoroughly unpleasant because the whole question of a parent's
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reasonableness or unreasonableness will come into issue.
I believe that I have something rather important to say in this amendment. I hope that the sponsor of the Bill and the noble Lord the Minister, who I know is supporting this Bill on behalf of the Government, do not think that deleting (c), and all that follows from that, will affect the further passage of this Bill. Even so, I will not challenge their judgment because, as I have said already, I will not be dividing the Committee. But this is one of those occasions when I hope that the strength of the Committee's voice will have an effect if the amendment is not accepted. I beg to move.
8.13 p.m.
Baroness Faithfull: I can well understand the concern to which the amendment gives expression; concern about the impact of the Bill upon a family that has never had recourse to the courts in divorce or other proceedings and where children are not the subject of a custody or equivalent order. I hope that I can allay that concern by showing that the provisions of the Bill are intended to strike a balance in this kind of case such that Clause 1 will be effective without being too oppressive.
The primary purpose of Clause 1 is to prevent the permanent abduction of children abroad in "tug-of-love" cases. However, it makes no explicit concession for persons wishing to take their children abroad for a short visit—such as a package holiday or even a day trip to France, where there is no intention of leaving this country for good and depriving the parent left behind of all contact with the children or hope of recovering them. It is this kind of innocent travel arrangement which the defence in Clause 1(5)(c) is intended to cover.
It may be helpful if I set out the position in a little detail. In a case where a child is the subject of a custody order and one parent is refusing the other permission to take the child abroad on holiday, the parent with the holiday plans can and should go back to the court which made the order, for leave to make the proposed journey. The court's permission, if given, will override the other parent's views on the matter. But if the court's permission is not sought, or if it is sought and refused by the court, then it will not be open to the holidaymaker to rely on a defence of the other parent's unreasonable refusal.
Taking the same example of the holiday trip but applying it to the married couple, where there has been no family breakdown and no custody order, if one parent does not consent to the other parent's travel plans, there is deadlock between them. It is not practicable or reasonable to expect one or the other to go to court for a custody order when the only matter at issue between them concerns the foreign holiday. Indeed, they may not wish to take such a drastic step. It is this type of case where the parent may rely on the defence of unreasonable refusal to consent in subsection (5)(c). Without such a defence, even a day trip to France with the children taken without the approval of the other parent would be an offence. In these circumstances, it seems to me to be right that a parent should not have to face criminal proceedings, subject only to the exercise of the discretion of the Director of Public Prosecutions not to prosecute.

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However, there will be other circumstances where something rather more than a package holiday is at stake. The noble Lord, Lord Mishcon, gave a good example on Second Reading and he explored the issue further today. It is the kind of case where the father, say, is posted abroad for a year as part of his job and wishes to take the children with him—but his wife disagrees. It is clearly not good enough for him to go away taking the children, and dismissing his wife's arguments out of hand.
One course of action open to the parents would be to obtain a custody order in respect of the children with a view to obtaining the court's ruling on the issue in dispute between them. However, the parties concerned may be reluctant to do this. Despite a major disagreement on what is undoubtedly a major decision in their family life, they may have no desire or intention to split up and may be loath to seek court intervention in the affairs to the extent that custody proceedings make inevitable. Indeed, a custody order giving custody to one or the other would aggravate the disagreement.
In these circumstances, it is open to them to make use of legislation already on the statute book, which provides machinery whereby parents can obtain a court decision on any particular matter in dispute between them affecting the welfare of their child. It is to be found in Section 1(3) of the Guardianship Act 1973. This reads:
"Where a minor's father and mother disagree on any question affecting his welfare, either of them may apply to the court for its direction, and (subject to subsection (4) below) the court may make such order regarding the matters in difference as it may think proper".
Subsection (4) goes on specifically to preclude the court from making an order as to custody or access in these proceedings. Therefore, if the parents are unable to reach a compromise with regard to the foreign posting, there is this ready-made procedure for independent arbitration of their differences on the point. Having had recourse to the court under this procedure, however, it should be noted that it is not then open to the parent to claim the defence of the other party's unreasonable refusal to consent under subsection 5(c) of the Bill if he subsequently takes the children abroad in breach of the court's direction.
I hope that I have convinced your Lordships' Committee that the inclusion in the Bill of the defence found in subsection 5(c) is justifiable in that there will be cases where the criminal law should not bear heavily on family life—but equally, the existence of the defence will not allow cases to slip through the net which should be caught by it and where adequate remedies are available to assist parents to resolve their disputes so that one parent is not tempted to take unilateral action to the detriment of the other parent's position—and, even more important, to the detriment of the children's welfare.
Lord Mishcon: Before the noble Baroness sits down, and only to avoid my having to make this point later without giving her an opportunity to answer it, will the noble Baroness mind if I reflected out loud on the comments she has just made? I would have thought that what the noble Baroness has just said was an argument in favour of my amendment and not one
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against it. She has said that there is ample provision—and that is absolutely right—for a parent in certain circumstances, where there is a dispute and there have been no court order and no matrimonial proceedings, to go to the court and get a ruling. If that is so, why have this defence?—because this is an application that could always be made.
It will not be in the case of a holiday abroad that the Director of Public Prosecutions would ever authorise a prosecution because a holiday abroad means something short and the child will be brought back and will be caused no harm. The director will authorise a prosecution where there is the sort of case I mentioned at Second Reading and a father has said, "Look, I'm awfully sorry, I refuse to go to the court. There is no need to go to the court. I know my wife is being unreasonable, she is not coming with me to France, and she ought to. I have been given a job there and I am going to take our child. I'm going to rely upon this defence if she won't go to the court".
That strikes me as being bad for the child, bad for the parents, and bad for the court that has to hear the case and has to look at this Bill and find that it has to adjudicate on whether the other parent was unreasonable. I wonder whether the noble Baroness would care to deal with that argument before she sits down.
Lord Elton: I just want to put this reflection into the mind of the noble Lord, Lord Mishcon, in dealing with this matter, which I hope we can do swiftly. It arises from his original speech, because he is apparently under the impression that the defence is that one parent believes that the other person has acted unreasonably. But if he looks at subsection (5), he will find that the requirement that the belief should be in the mind of the parent is contained in only subsection (5)(a); it is not in subsection (5)(c). The defence there is that the other person has unreasonably refused to consent, and therefore the court will be deciding about that, and not about his state of mind.
Lord Mishcon: This is the Committee stage and therefore your Lordships are used to people bobbing up and down, which can be rather useful. I accept what the noble Lord the Minister has said. I used cautious words. I have forgotten whether I said that it was arguable that it was a question of belief, or it appeared possibly to be a question of belief. I still do not know how anybody can otherwise commit an offence, since criminal intention is obviously part and parcel of the commission of a criminal offence. If the person honestly believes that the other party unreasonably refused, and comes before the court and says so, then the court decides "Well, you may honestly have believed that, but we don't think that the other party did unreasonably refuse. Therefore you have committed a criminal offence, even though you honestly believed that the other party was unreasonable". From all practical points of view it will be a question of the genuineness of the honest, bona fide thought that the parent had that the other party was being unreasonable. I shall not detain the Committee any longer.
Lord Meston: It seems that this point derives from the definition of "abduction", which is taking without

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consent. If that is the definition of "abduction", then I would suggest it is sensible to add a defence of this nature where there is no order for custody to cover the pre-litigation snatch. That is not to say that a custody squabble should be transposed from the proper courts to the criminal courts, but it provides a defence for the parent who otherwise would be vulnerable to prosecution and conviction where the other party has unreasonably refused consent. In practice, where families have reached the stage of disharmony which has been described by various noble Lords, of course, there will already be a custody order of some sort, albeit an emergency order.
In introducing the concept of unreasonable refusal of consent, the Bill presents a concept well known to the law which can be well understood by a jury when properly directed. But it also sensibly provides that the defence is not available where the person removing the child is flouting some custody order and is taking the law into his or her own hands. Accordingly, I would suggest that the Bill ought to stand as it is.
Lord Elton: I wonder whether I may try to draw this question to a conclusion. It seems to me that my noble friend has put forward fairly strong arguments. But it also seems to me that in a case where a child is taken abroad by one parent without the consent of the other, if the conditions in paragraphs (a) or (b) are not satisfied, then the other parent who remains in England, let us say, would always be able to prove that his or her spouse had committed a criminal offence unless this defence was available to him or her. I am sure that that is not the intention of the noble Lord and I hope that he will read in Hansard the remarks which have been made. if he remains in doubt, perhaps he will remind us of his concerns at the next stage.
Baroness Faithfull: I wonder whether I may add one extra comment. The Bill must address the unilateral action of a parent in taking a child out of the country, but where the court judges on the facts that consent was unreasonably withheld, it is surely right that this should constitute a defence for the parent who has removed the child.
Lord Mishcon: I am much obliged, and in order to show my complete broadmindedness, may I again congratulate the noble Lord, Lord Meston, on his contribution, even though he happened to oppose the amendment that I was moving. I find it difficult to swallow a situation when a matter of this kind is going to be decided by a criminal court and jury and not even a family court. Nevertheless I am taking the hint from the noble Lord the Minister and at this stage I certainly would wish to withdraw the amendment, but I would always, of course, sit down before doing so if any other noble Lord wished to address the Committee. it appears that no other noble Lord, spiritual or otherwise, wishes to address the Committee and so I ask leave to withdraw.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Clause 1 agreed to.
Clause 2 [Offence of abduction of child by other persons]:
[Amendments Nos. 4 and 5 not moved.]
Clause 2 agreed to.
Clause 3 agreed to.
Clause 4 [Penalties and prosecutions]:
Lord Mishcon Lord Mishcon moved Amendment No. 6:
Page 3, line 38, leave out ("seven") and insert ("five").
The noble Lord said: The drawers of this Bill seem to have adopted a little bit of a perverse attitude from time to time in regard to the recommendations of the Criminal Law Revision Committee, as I mentioned on a previous amendment. Here we are dealing with the question of the penalty, I am looking at this moment at page 103 of the 14th report, to which I referred earlier, and for which I therefore do not have to give a full reference. On page 103, at paragraph 244, the committee recommends that we adhere to our provisional recommendation that abduction should be punishable with a maximum penalty of three years' imprisonment on conviction on indictment, and should be triable either way.
I now turn to page 105 of the report, and paragraph 251, which deals with the offence of unlawful detention. This is preceded by these words:
"The offences of false imprisonment. kidnapping. child stealing and abduction of an unmarried girl under 16 should be replaced by the following four offences".
One of them is the offence of unlawful detention. In paragraph 251 the committee recommend that the offence should be triable either way and punishable with a maximum penalty of five years' imprisonment. But when you come to this Bill you find that the penalty is seven years' imprisonment. It is not a question this time of Solomon's judgment, of coming between the three and the five and making it four. It has gone up to seven. I cannot at the moment understand why it should. I have gone to the greater of those two and have made it five, and I move the amendment at this stage as a probing amendment to find out the reasoning behind the maximum sentence of seven instead of either three or five. I beg to move.
Baroness Faithfull: Once again I must acknowledge the careful and sensitive motive behind this amendment, which would reduce the maximum penalty for offences under this Bill from seven years to five years. The latter would preserve the power of arrest, which is vital to the proper enforcement of this measure and which would be lost if anything lower than five years were proposed. Perhaps I might explain why I do not think we would be wise to lower the penalties at all. This Bill replaces the old offence of child stealing with two offences based on the offence proposed by the Criminal Law Revision Committee and making a distinction between parental abduction and others, which I believe we all accept to be proper, so that the parents will not be brought further than is strictly necessary into the scope of a criminal offence in relation to actions upon their own children.
As regards abduction by non-parents, seven years is the present maximum in the 1861 Act. It was thought then to reflect properly the gravity with which society

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viewed child stealing. I should not like us to be seen to view the worst cases of such activity with any less gravity today. The Criminal Law Revision Committee Report looked at abduction as akin to kidnapping, but, where the child was willing to be taken away, as aggravated abduction, for which the committee recommended life imprisonment. I should add that my confidence in the penalty as drafted is enormously increased by the agreement of Lord Justice Lawton to the maximum seven years for both offences.
Lord Mishcon: I should like to pay my tribute once again to the Lord Justice for having the tolerance and breadth and openness of mind to have changed his view presumably as chairman of this very distinguished committee. I find with some regret, in spite of the fact that there were so many eminent lawyers and judges on this committee, that their recommendation has not been accepted. But I have indicated previously that I do not want this Bill to be interfered with in any way in regard to its passage through Parliament, and it would be quite wrong for me to take up any further time of the Committee on the question of sentence. Therefore, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 [Offence in Scotland of parent, etc. taking or sending child out of United Kingdom]:
[Amendment No. 7 not moved.]
Clause 5 agreed to.
Clause 6 agreed to.
Clause 7 [Penalties and prosecutions.]:
8.33 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 8:
Page 5, line 32, leave out ("three") and insert ("six")
The noble Lord said: May I, with the permission of the Committee, speak to Amendment No. 9 in moving this amendment?
Amendment No. 9: Page 5, line 36, leave out from ("exceeding") to end of line and insert ("five years")
I have tried to show a consistency (or an inconsistency) as far as this Bill is concerned, because we now move over the Border and we are in Scotland. For some reason which for the moment escapes me there are different penalties in Scotland from those about which the noble Baroness was just speaking. If your Lordships look at Clause 7 of the Bill you will see that it reads:
"on summary conviction, to imprisonment for a term not exceeding three months",
instead of six months; and,
"on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both".
The noble Baroness and the noble Lord the Minister were so convincing in thinking that it should not be three and it should not be five, but that it should be seven: but if you happe0n to be fortunate enough to commit the offence over the Border, or you happen to
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be of Scottish nationality, then you are obviously entitled to a mitigated treatment and, therefore, you can come below the sentence that I was recommending in my amendment.
It was to produce consistency or some measure of logicality, even though that is supposed to be a quality mainly associated with lawyers and, therefore, obviously I do not want to claim it, since somebody said that it was really the province of a lawyer to be logical. As I have said, I move this for the sake of consistency. I shall be interested to learn, in any event, why there is this suggested difference in treatment. I beg to move.
Baroness Faithfull: I have some sympathy with the noble Lord, Lord Mishcon. These amendments seek to provide for uniformity in the maximum penalties available under the Bill among Scotland, England and Wales. Although I would agree that having the same maximum penalties for the same statutory offences north and south of the Border is desirable, I think there are good reasons for the differences which the Bill presently provides. Therefore, we cannot accept these two amendments.
Perhaps I might start by dealing with the second amendment first. It relates to the more serious offences, which will be prosecuted on indictment. The Bill presently provides the maximum penalty of two years' imprisonment in Scotland as compared with seven years in England and Wales, as we discussed earlier. I explained then why I thought it was right not to have different maxima in Clauses 1 and 2, but, in relation to Scotland, this Bill does not need to address abduction other than by parents; nor does it need to address the wider question of kidnapping, which the Daily judgment raised.
Your Lordships will know that the structure of Scots law is different from English law. This Bill must not seek to distort that structure, but only to ensure that there is no loophole between the two jurisdictions in a matter as important as this. The English penalty for Clause 1 is consistent with Clause 2 and with the child-stealing offence that it replaces; but it does not, and need not, fit the Scots scheme. For example, a maximum penalty of two years corresponds to the normal maximum penalty available in the sheriff court in Scotland, so that any case which requires to be tried on indictment can be taken there. This is appropriate as the sheriff court, in its civil capacity, is the court in Scotland which is empowered to hear divorce cases and to make orders relating to the custody of children. As it is orders of that sort which someone committing an offence under the Bill will be disregarding, it seems appropriate that any criminal case taken should be prosecuted there.
I fully understand that it would be a neater Bill if all the penalties were identical, but I think that, as drafted, the provisions make the measures able to work satisfactorily in both jurisdictions, and this is more important than contriving an artificial and uneasy fit.
The amendment also removes the reference to the possibility of a fine, as well as imprisonment, on conviction on indictment in Scotland. I think that noble Lords would agree that, while a fine instead of, or as well as, a sentence of imprisonment might not be

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very frequently imposed in these cases, it is right to give sentencing courts the maximum range of options so that they can arrive at the most appropriate sentence in any given case. To remove the option of a fine from Scottish courts considering these cases would be an unnecessary restriction of that discretion.
Noble Lords may point out, of course, that there is no comparable provision on the face of the Bill allowing a fine to be imposed in England and Wales instead of, or along with, imprisonment. But I am advised that under Section 30 of the Powers of Criminal Courts Act 1973 a Crown Court convicting someone on indictment of any offence may impose a fine in lieu of or in addition to dealing with him in any other way, such as by imposing a sentence of imprisonment. There is no exactly comparable provision for Scotland, and that is why explicit provision is needed on the face of this Bill to ensure that Scottish courts have this power also.
Let me now turn to the first of these amendments dealing with the maximum penalty on summary conviction. At the moment the Bill provides for Scotland a maximum period of imprisonment of three months or a fine of up to the statutory maximum, while in England and Wales the maximum period of imprisonment is six months. There are again two reasons for this distinction. The first is, as I have said, that the Scottish penalty does not relate to offences of abduction by strangers. Secondly, three months is the normal summary maximum in Scottish courts, and is usually exceeded only in relation to a second or subsequent offence inferring violence or dishonesty. It was, therefore, thought right that the normal summary maximum should apply in cases of this sort. Of course, any case which might attract or deserve a longer sentence of imprisonment can always be taken on indictment at the discretion of the prosecutor.
I hope that the explanations I have given of the reasons behind the two differences will be sufficient to persuade the noble Lord, Lord Mishcon, that he may withdraw his amendment.
The Earl of Caithness: I briefly add to the words of my noble friend that the penalty in Scotland under the common law for abduction by a third party, other than parents, is of course far greater than in England, because the High Court can go up to life imprisonment.
Lord Mishcon: Let me at once express my gratitude to the noble Baroness, Lady Faithfull, for teaching me something. It is not the first time that she has taught me and I hope it will not be the last. I was under the impression, obviously mistaken—and I am not a Scots lawyer—that the same powers existed in Scotland, as in England and in the rest of the United Kingdom, to impose by way of an alternative a fine instead of a term of imprisonment. I am grateful to her for having taught me that that is wrong.
I have listened with the greatest care to what the noble Baroness has said, and indeed to the contribution that has been made by the noble Earl the Minister. I do not admit—I hope that this will not seem ungracious—that I follow the logic or justice of what has been said, but, since the whole Bill is an
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important Bill, and, I repeat for the last time, a very necessary Bill, I do not intend to carry this matter even further tonight, and therefore ask the Committee's leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 9 not moved.]
Clause 7 agreed to.
Remaining clauses and schedule agreed to.
House resumed: Bill reported without amendment.

Trade Union Bill
8.47 p.m.
Committee stage resumed.
Clause 2 [Requirements to be satisfied in relation to elections]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 13:
Page 3, line 2, at end insert ("and the union shall use its best endeavours to ensure that so far as is reasonably practicable an opportunity to vote is accorded to every member entitled to vote in accordance with the provisions of this section.").
The noble Lord said: This is not the first occasion on which it has fallen to me to move the first postprandial amendment of a somewhat technical character, but this amendment is, nevertheless, in our view, something of importance. This amendment seeks to ensure that the duty of a union in respect of the direct elections (which have now been made mandatory by the approval of Clause 1) should be to use its best endeavours—and I stress those words—to ensure that every member entitled to vote has an opportunity to vote so far as is reasonably practicable.
I say at once that I stress the words "best endeavours" because the provision differs from the formulation of the Government's Bill and their own amendment to that Bill in Amendment No. 22, to which we shall come later, in respect of the standard of care required on the union's part. But it may be for the convenience of your Lordships if I discuss that point in relation to Government Amendment No. 22, because I apprehend that the major issue on this amendment is not that standard of care. On the contrary, the amendment is to attempt a solution to something which bothered the Committee, and especially the Minister of State, in another place.
The argument was put to the Government there that the way in which Clause 2 is now drafted means that, if a union or union official—union official, of course, because perhaps it would be better if we discussed these matters in the terms of the human beings concerned rather than these abstractions—failed to allow a member to vote who was entitled to vote, the liability of the union would appear to be absolute, or at any rate nearly absolute, because of the structure of subsections (1), (2), (3) and (4) of Clause 2.
Let me put the argument briefly, although I am not sure that that will do justice to it. The conditions upon which a union is permitted to divide its electorate of members into constituencies by trade, occupation, geographic area and the like: it is permitted by subsection (3)—only if the conditions of subsection (4)

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are met. In subsection (4)(b) we find that no member of the union must be denied entitlement to vote at all elections held for the purposes of this part, otherwise than by virtue of belonging to a class mentioned in subsection (1).
That seems to mean that if the denial is improper and outside subsection (1)—which, by definition for the purpose of this debate it is—then there is a case which under Clause 3 is open to a complaint to the High Court by any member of the union. When this point was put to the Government in another place—and it is only possible to discuss this against what the Government said by way of answer to the point there—if I may quote the Minister of State, in his various replies to this point, he began on 17th January at col. 487 by saying this:
"Is the honourable gentleman confusing entitlement to vote with opportunity to vote? If the argument is that an individual did not have an opportunity to vote, that would not mean he did not have an entitlement to vote."
Then at col. 488 he says:
"In talking about the opportunity to vote, when one is entitled to do so one could deny someone's entitlement to vote, by, for example, so arranging the rules that someone who should be entitled to vote does not have that right."
Then he came back to the point and gave this example. This is at col. 490:
"If someone who is entitled to vote is not sent a ballot paper—let us take this simple example—he is being denied not his entitlement but his opportunity. It is surely clear that he remains entitled to vote, he has not been disfranchised. He simply cannot exercise the right that he continues to hold. There is a clear distinction between entitlement to vote and opportunity to vote".
That is the foundation of the Government's case in another place. It is in order to make rather more clear this very grey area of the difference between entitlement to vote and opportunity to vote that this amendment is being moved. I say at once that of course I understand the distinction between entitlement to vote and opportunity to vote but without anything express in the Bill about opportunity to vote; the grey area between the two is very grey indeed.
The Minister of State, Mr. Gummer at col. 491 in the same debate says:
"For the last time I should like to try to clear up the matter I shall give the honourable gentlemen two examples. If I an entitled to a dividend in a country that passes laws saying that the dividend cannot be remitted to this country, that does not deny me my entitlement to the dividend. It just stops me getting it. Similarly, if I am on my way to vote and someone beats me up, that does not mean that I am removed from the electoral register or that my entitlement is removed. It means that physically I cannot vote. One example is of a denial of entitlement; the other is denial of opportunity."
In fact that was not the last time that the honourable gentleman came to the matter because, in relation to Clause 8 of the Bill, as it now is, the same point arises. He said on 16th February, at col. 1150:
"I am sure the honourable gentleman cannot produce an example of denying eligibility accidentally. Denial of eligibility is to say to somebody, 'Although you have rights under the Bill to vote, we shall not let you vote; you do not have a right to vote'".
Then a little later on he says:
"We may disagree about it, but it remains a fact that to deny eligibility a union has to go out of its way to say it will not give a right to vote to people who have the right to vote. To deny opportunity can easily be done accidentally and it is then covered by the reasonable practicability rule."
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With respect, it is not covered by the reasonable practicability rule as the Bill now stands. Indeed, although the Minister of State's examples are perhaps acceptable—and I am sure he would not be accused of being philosophical or in any way connected with the University of Oxford for taking such peculiar examples as dividends which could not reach this country from another—nevertheless it shows how far and wide he had to stretch to sustain this distinction.
What we are saying in this amendment and offering to the Government, with a genuine request that they reconsider this matter—and asking it to put something express in the Bill on the point—is that a union is entitled to know what its obligation is in relation to opportunity, just as it is entitled to know what its obligations are in respect of entitlement.
Although, as I say, there is a grey area between the two, I found, on the distinction which the Government have made, the anchor of their case through the Minister of State in another place. The point is not covered in the new Government amendment, Amendment No. 22, and I apprehend that the noble Minister will not argue that it is because, although the notion of opportunity is re-defined, the obligations of the union are still there only dealt with in terms of what is reasonably practical, which is a very different matter from that of ordinary skill and care.
It would be useful to spell out the union's duty at the beginning of Clause (2), as we have suggested, because we are dealing with the trade union movement. Here I come back to the reality of the matter. However much noble Lords in this place or elsewhere pass resolutions about postal ballots, direct elections and all sorts of other procedures, the trade union movement of this country has worked and will continue to work—perhaps unfortunately in some ways—on a very small number of full-time officials, a very large number of voluntary shop stewards and other helpers. They are entitled to have spelt out in simple language this distinction, if it exists, between entitlement and opportunity. As it stands, the Bill does not do so and it is on that very simple, and I hope not academic, ground that I beg to move this amendment.
The Earl of Gowrie: I am very sympathic with the noble Lord, Lord Wedderburn, when he says that this is not the first time that he has had to open the batting after dinner and engage in what he described as "postprandial amendments of a rather technical nature". I think it gives rise to a wonderful image of his noble friends hogging it back there, puffing away, while the wretched noble Lord wrestles with these arcane and difficult matters. I accept that the noble Lord has been trying to be helpful. The amendment is concerned with opportunity to vote, and in particular with protecting trade unions from the possibility of legal action for breaches of the statutory requirements in circumstances where they have used their best endeavours to prevent such breaches from occurring.
In respect of the point that he raised at the end in referring to my honourable friend Mr. Gummer, Mr. Gummer was of course absolutely right in the distinction he drew between entitlement and opportunity. It is heartening to know that the noble Lord, Lord Wedderburn, accepts the distinction, which was one that the Opposition in another place

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altogether failed to comprehend. Of course the Bill makes clear that there is a difference between entitlement and opportunity. For example, the reference to entitlement in subsection (1) is quite separate from opportunity in subsection (6).
Returning to the rather wider issue of the amendment, I should say that, although the noble Lord, Lord Wedderburn, has chosen to place his amendment at this point in Clause (2), the question of the union's obligation to provide a convenient opportunity to vote arises, in the main, in relation to subsection (6), of the clause, as I have just said. I say this not in any sense as a criticism but merely because, as the Committee will have seen, the Government have moved their own amendments to subsection (6) which we shall come to shortly. With what I hope will be the noble Lord's and the Committee's forbearance, I intend therefore to be rather brief in my remarks on this amendment because it covers ground which I think we will want to discuss more fully later, in the light of the Government's own amendments.
The noble Lord, Lord Wedderburn, is concerned with a situation where, if I may so put it, the union is keen, so far as is reasonably practical, to accord to every member entitled to vote, an opportunity of voting in accordance with the requirements of Clause 2. Indeed, the union is not merely keen: it is using its best endeavours—though I must say that that is a phrase which I personally would not want to have to try to interpret to a court. I think I can reassure the noble Lord that this is in effect all that the Bill requires. Subsection (6)(a) of Clause 2, as proposed in the amendment that I shall be moving shortly, requires unions to make arrangements for the casting of votes which are designed to secure that every person who is entitled to vote is so far as is reasonably practicable given an opportunity to vote. That opportunity must be by post or at the workplace, but that is a rather different question. The noble Lord's amendment assumes that the union is using its best endeavours to comply with the requirements of the clause.
In substance, I see no difference between the noble Lord's proposition and that in the Government amendment. which is in turn merely a re-wording of the original proposition in the Bill. Both the noble Lord's amendment and ours make allowance for what is not reasonably practicable. Beyond that, it is clear that any union which is prepared to use its best endeavours to provide the required opportunity to vote will make arrangements for the casting of votes which are designed to secure that every person entitled to vote has an opportunity to do so. In short, the noble Lord's amendment is helpful but unnecessary. It could possibly be confusing on top of the other provisions in the clause. Accordingly, I hope that he will agree to withdraw it.
Lord Wedderburn of Charlton: I am grateful for the noble Earl's sympathy in so far as it related to the gastronomic aspect of our debate, but not for the rest of his remarks which would perhaps best be taken up, as he suggested, on Government Amendment No. 22. I can perhaps just say in respect of my right honourable and honourable friends in another place that they certainly accepted the distinction between
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opportunity and entitlement (indeed, who could not?) as a conceptual matter. What they could not get the Government to see was that there was a grey area between the two which needed more definition in the Bill. I do not think that we have that. However, as the noble Earl suggests that this is a matter that the Government aim to deal with in Amendment No. 22, I shall, with respect, come back to my submission on that amendment. On this occasion, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.3 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 14:
Page 3, line 3, at end insert ("such classes of members as are defined by the rules of the union, being—").
The noble Lord said: In moving this amendment I shall, with your Lordships' leave, and if my notes permit it, speak also to Amendments Nos. 15, 16 and 17.
Amendment No. 15: Page 3, line 4, leave out ("in employment") and insert ("engaged in such employment as the rules of the union prescribe and for such period as stated in the rules;").
Amendment No. 16: Page 3, line 5, leave out ("any subscription or contribution due to the union") and insert ("such number or amount of subscriptions or contributions due to the union as the rules of the union prescribe;").
Amendment No. 17: Page 3, line 12, after ("who") insert ("by virtue of the rules of the union").
These amendments, in our submission, involve the same central point. It can be simply put. In order to be allowed to divide the electorate of members into constituencies, the union must fulfil two basic conditions. First, under Clause 2(1)(b)all the members of the class must be excluded by the rules of the union from voting. There must be an exclusion rule for all of them. The second hurdle that the union must clear is that the class must fall—and here I am talking to subsection (2)—into one or more of the classes set out in subsection (2); that is, members who are not in employment, members who are in arrears with their subscriptions and members who are apprentices, trainees, students or new members of the union.
In regard to the first hurdle, it is clear that the rules must include the exclusion provision. The problem arises—all four amendments are conveniently taken together because the principle is the same—in regard to the second hurdle. The issue is: who is to decide what is meant by the definition of the class into which the excluded members must fall? For example, let me take trainees or apprentices. When a court is confronted with the arguments that the union has done what is needed and that the union has done not what is needed, how will it decide whether the union rule clears the second hurdle as well as the first? As the Bill is drafted, the court, in my submission, would apply what I might call for convenience (although it is not wholly accurate) the objective test; namely, what the court thinks the Act means. What does the court think a trainee is? What does the court think "arrears of subscription" means? What does the court think "not in employment" means?
The other way of approaching the matter could have been to allow the rules of the union to define what is meant by "trainee or apprentice", "in arrears of subscription" or "not in employment". It is our

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submission—I apprehend that it is likely that the Government may resist this amendment and, if so, it will only show how the Bill is to overtake the rules of the union yet again—that the rules should decide the meaning of the word. In saying that, I wish to make clear a point that it is clear to any lawyer and, indeed, to any layman. Of course, if the Act demands that the rules talk about apprentices, then the rules must define apprentices in a way that is capable of reasonable understanding but that allows for flexibility. It does not impose the court's interpretation; it imposes the rules interpretation provided that that is a reasonably understandable and reasonable interpretation of the term.
The point may seem a fine one to noble Lords; but the noble and learned Lord, Lord Denning, will, I am sure, remember the case of Lee v. The Showmen's Guild in 1952, in which his great judgment showed that the construction of a rule of the union is a matter of law and cannot go outside that which the court can allow. On the other hand, within that compass the rules can have some autonomy and give a reasonable interpretation to the term. In that case it was the term "competition".
What makes it clear that the Government are leaving this to the court completely and not to the rules plus the court is the way in which the rules appear in the rest of the clause. This is a very important point in the practical administration of trade unions. For example, if the rules are to define the terms, the Bill says so. It says so, as the noble Earl will see, in Clause 2(1)(b), Clause 2(3)(c) and Clause 2(4), but it does not say so in Clause 2(2). Because it does not say so in Clause 2(2) but does say so in the other subsections and paragraphs that I have cited, the court would be bound to see a distinction in the approach of the Act to the terms defined by virtue of the rules in those other subsections and paragraphs and the terms that are not defined by reference to the rules in subsection (2).
The central point therefore runs through all four amendments. There are small points that distinguish them. I put tonight simply the central thrust that, surely, here is an area in which the Government could allow the members to define what they mean by an apprentice, or, in particular these days, what they mean by a member who is not in employment. I am quite sure that from their trade union experience my noble friends can easily give examples—indeed, I can myself—of the way in which, in one trade, not being in employment is regarded as rather a different matter, in shading and area, than in, say, the print industry, where not being in employment often acquires a rather technical meaning.
Really, this is no more than a plea to the Government to have another look at this and see whether the rules are not the right place to give the leading interpretation of all of these matters in subsection (2), or, if they do not accept that, to give an explanation, which so far has never been given, as to why, in Clause 2(1)(b), 2(3)(c), and 2(4), the rules govern interpretation, but in 2(2) they do not. I beg to move.
Lord Denning: As my noble friend has mentioned me, perhaps I may say that there are many words in
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many statutes which have to be interpreted by the courts. There could have been in this statute a definition section which gave the meaning of all those words—apprentices, training, and so forth. But often those definitions are not useful at all. I gather the suggestion in the amendment is that the definitions should he put in the rules. I do not think it should be left to the rules to give the definitions. I believe that, without a definition clause, ordinary people and ordinary courts will be able to apply these words perfectly well, and there is no need for the amendment.
The Earl of Gowrie: Well done!
Viscount Long; Having listened to the noble Lord, Lord Wedderburn, speaking to this amendment, I should like to say I am glad, (a) that he has had a good supper, and (b) that he has got his definitions right as to what is an apprenticeship, as well as the different groups he is talking about.
Subsections (1) and (2) of Clause 2, to which these three amendments relate, reflect once again the Government's basic approach in this Bill. These subsections provide for one of the essential democratic requirements of any election: that is, for the basic principle of one man, one vote. But at the same time the Bill allows unions to continue to operate sensible restrictions on entitlement to vote in an election where these do not conflict with the Bill's basic democratic requirements.
In particular, subsections (1) and (2) allow certain groups of members to be excluded from all elections to the governing body if that is what the union's rules provide. The groups concerned, which are set out in subsection (2), and which the noble Lord, Lord Wedderburn, has described, are members not in employment, members who are in subscription arrears, and members who are apprentices, trainees, students or recently-joined members of the union. To define these groups, and who is to go into these groups, as the noble and learned Lord, Lord Denning, implied, is a very difficult and sensitive area, and probably one could go on always trying to define who goes into which group.
Turning now to the specific amendments, the case for Amendment No. 14, as I understand it, is that it should be up to the union to decide in its rules, first of all, whether it wishes to exclude all or any of the classes of members in subsection (2) from voting; and, secondly, if it does wish to exclude some of these groups of members from voting, how precisely it wishes to define these exclusions. I can assure the noble Lord that, on this basis, his amendment is entirely unnecessary. Again, I go back to the noble and learned Lord, Lord Denning, who said it is very difficult to define these groups.
I want to make it clear to the Committee that nothing in subsections (1) and (2) requires unions to exclude all or any of these groups from voting. The provisions are entirely permissive. Moreover, if the union does wish to exclude one or more of these classes from voting, then it is entirely up to the union to decide whether to exclude all those in the class—for example, all those who are in arrears of subscription—or only a part of that class—for

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example, all those who are more than, say, three months in arrears. The only qualifications are that the exclusion must be operated in accordance with the union's own rules, which is precisely what Amendment No. 14 is about, and, secondly, that having decided on an excluded class of members—for example, all those more than three months in arrears—the union does not then pick and choose arbitrarily by allowing some of them to vote and others not.
Exactly the same point arises in relation to Amendment No. 16, and it may be helpful to your Lordships if I explain in a little more detail why this is so. The effect of Clause 2(1) and (2) is that a union can continue, perfectly lawfully under the Bill, to exclude from voting in elections for its executive a class of members which is, or which falls within, a class of members distinguished by the fact that they are in subscription arrears. The key words are "which falls within". The effect of these words is that in order to benefit from the exemption provided by subsection (2) a union will not be required, for example, to exclude from voting all those of its members who are in arrears of subscription to any extent. It can, for example, exclude from voting only those who owe more than a certain number or amount of subscriptions or contributions due to the union.
I now turn to Amendment No. 15, which raises a slightly different issue. Rather than allowing unions to exclude from voting those not in employment, such as unemployed members, it would permit unions to exclude from voting both members in particular kinds of employment and those who had not been employed in a particular kind of employment for a given period. If the amendment is designed to ensure that unions can continue to apportion seats on their executives as between different occupational groups which are represented in the union, then it is unnecessary. Subsections (3) and (4) of Clause 2, to which we shall shortly be turning, allow such arrangements to continue as long as those concerned are directly elected by the members of the trade group concerned.
If, however, the amendment is designed to legitimise rules in some unions which disfranchise members outside the trade, then different questions arise. In the first place, very few unions have such rules, though I understand that some do have them. The reason the Bill does not cover such arrangements is that, unlike the other categories listed in subsection (2), there seems no obvious justification for allowing unions to exclude members in particular occupations from voting in all executive elections. If people are allowed by the rules to continue as members even though they are outside the normal occupations covered by the union, and particularly if they are still required to pay a subscription, there seems no reasons why they should be denined entitlement to vote in all elections to the executive.
I hope that I have given the noble Lord enough information, and I trust that his anxieties have been allayed, and that I have given him time to define which grades go into which categories. In the light of what I have said, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Howie of Troon: I have a very minor difficulty as regards this matter. I refer in particular to subsection (2)(c), which lists a number of excluded classes including:
"apprentices, trainees or students or new members of the union".
While we have little difficulty over apprentices, trainees and students, I should like to ask what exactly is a new member of the union. How new is "new"? Does "new" mean a member who has one month's membership, or one year's membership? How long does it mean?
Alternatively, am I to interpret this as referring back to Clause 2(1)(b). where it says, in addition to these groups:
"all the members of which are excluded by the rules of the union".
In other words, the rules of the union might themselves define a new member. Where the rules of a union define a new member, I do not think that there is any difficulty. But if the rules of a union do not themselves define a new member, I wonder where we are. Should we in some way say whether a new member is a man who has three months' membership, or six months' or a year's membership or whatever? Should not a new member be actually defined in some way, or am I wrong again?
Viscount Long: I am very grateful to the noble Lord, Lord Howie, for voicing his anxiety over what is a new member. I think that what he is worried about is a member who has recently joined. It is deliberately flexible. Union rules will be the test, unless they are manifestly absurd. It is flexible in that regard.
Lord Howie of Troon: Your Lordships will recall from earlier debates that I am strongly in favour of flexibility. But I am wondering what will be the case if the union rules do not say anything about new members. Who then decides when a member is new or, indeed, if he is new? I am just seeking information; I am not attempting to be awkward. I hope that the Minister will help me.
Viscount Long: I can help the noble Lord because I think that a great deal of common sense has to go into the rules.
Lord Wedderburn of Charlton: If I may say so, this seems to me a very simple point which the noble Viscount has not addressed. I agreed with almost all of what he said. But my noble friend Lord Howie gave a second example involving the one that I was going to take in the three points that I want to put in reply.
First, let us take the very simple matter—which I passed over because I thought that this was such a straightforward point that the Government would naturally think again about it and I therefore dealt with all for amendments together—of the class of members who, under subsection (2)(b), are:
"members who are in arrears in respect of any subscription or contribution due to the union".
Everybody knows—and the Government must know—that practices on arrears differ very much in different unions. In the craft unions there is at least a two-stage procedure. A member who is in arrears for a certain number of weeks will go out of compliance;

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he will normally be unable to claim benefit. But it will take a number of other weeks before his membership lapses through arrears. Indeed, my noble friend was telling me that he believes there are some unions (and I thing so too) in which there are actually three stages. In the general unions it is more normal to find that lapse after a certain number of weeks causes lapse of membership.
It is no good appealing to common sense to give the answer in respect of any particular union as to what the phrase:
"in arrears in respect of any subscription"
means. There have been decades of practice which normally on this matterߞindeed, always on this matterߞhave been enshrined in the rules. Therefore, if you want to find out what, as a matter of common sense, in that union "in arrears" means, you must look at the rules, which, of course, have been defined in the light of custom and practice.
Secondly, it is said that this amendment is unnecessary because we can all decide it by common sense. If it were not such a festive post-dinner occasion I would call it slipshod legislation. In no way did the noble Viscount address himself to the question: why are the words "by virtue of the rules" included in some parts of subsections (3) and (4) especially, but not in subsection (2)? Indeed, I noted that the noble Viscount did not accept the suggestion of my noble friend Lord Howie that the matter was fully dealt with by Clause 2(I)(b), which says:
"all the members of which are excluded by the rules of the union".
With respect, the noble Viscount was right not to give that as the answer because that is the exclusion part, and that is the first hurdle. But the second hurdle still has to be crossed.
The noble and learned Lord, Lord Denning, asked us not to leave it only to the rules. With respect to the noble and learned Lord, I cited the case of 1952 and his own notable judgment, because even if one does leave it to the rules, the courts still have a control
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because they must be rules which to a reasonable man can mean something within the area of the term in the Act. That, of course, is a final or, if you like, residual control by the courts. The noble and learned Lord said that we should leave it to the ordinary people. But, of course, it is not ordinary people who will decide this matter; this matter will be decided by an ordinary judge. The noble and learned Lord presided long enough in the Court of Appealߞwhere the odds were two to one on getting it rightߞto know that ordinary judges often get things wrong. They cannot be expected to get things right if they are not directed to the rules. One cannot go to the judge and say "Judge, here is a union which has very peculiar practices about arrears but you are not allowed to look at the rules, you must do it all by common sense". Perhaps the noble and learned Lord could do that in the Court of Appeal, but not all the ordinary judges can do it.
I am very disappointed at the Government's reply. These very simple matters are very important to trade unionists and to the administration of trade unions. A number of other amendments on these matters have been tabled, so if noble Lords think that they are to debate postal ballots immediately they had better have another think. These are the matters that will be dealt with on the ground by shop stewards, by people who devote their weekends and their evenings to administering the unions that keep industry running, along with managers on the other side of the table. They are entitled to better than this; they are entitled to an Act that makes sense; they are entitled to an Act that at least gives some kind of credence to their own rules dealing with the matters which are fundamental to the administration of their own unions.
In the light of the fact that I am quite confident that when the Government read Hansard they will consider the matter again, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 15 to 17 not moved.]
9.25 p.m.
Lord Dean of Beswick Lord Dean of Beswick moved Amendment No. 18:
Page 3, line 13, after ("trade") insert (", profession, office, employment. grade, status. craft, calling").
The noble Lord said: In moving this amendment may I say that it is not an amendment with far-reaching consequences. but we think that the words in the Bill "trade or occupation" are inadequate to meet the needs of the present large conglomerate trade unions, and there is still a move towards larger trade unions as the smaller ones are absorbed. The categories in the amendment are a more realistic appraisal of the situation in the large conglomerate unions today, and I would ask the Minister whether he would consider, if he does not give a definitive answer tonight, looking at it and, if he feels sympathetic, to come back with something at a later stage. I beg to move.
Lord Gray of Contin: Amendment No. 18 focuses on one particular restriction allowed for by these subsections; namely, that the electorate can be restricted by trade or occupation. In detail, the amendment seeks to extend this exemption so that trade unions could restrict seats on their executive not merely to members in a class determined by reference to trade or occupation but also to members in a class determined by reference to profession, office, employment, grade, status, craft, or calling.
I hope that I can be brief in relation to the amendmentߞand I thank the noble Lord for his succinct remarks when he moved the amendment. I can first assure the noble Lord that the great majority of the extra words which he wishes to add are covered already by the words "trade or occupation" which clearly have a very wide meaning. A "profession" would be covered by the term "occupation": a "craft" would be covered by "trade"; and a "calling" would be covered by one or other of these, As there is no sense in littering the Bill with synonyms. I hope that the noble Lord will accept that most of his amendment is simply not necessary. That leaves us only with office, grade and status, and I am bound to say that I had not thought to see the noble Lord's party so clearly associated with such elitist concepts.
Nevertheless, I take seriously the points that the noble Lord made, but I hope I have been able to explain to him that the additional words he seeks to add would be unnecessary. The noble Lord himself when introducing the amendment said that it was not of far-reaching dimensions, and I hope that he might be prepared to withdraw it.
Lord Dean of Beswick: I am grateful to the noble Lord for his reply. I am sorry that he does not accept the amendment. I do not believe that the two words in the Bill cover the wide spectrum of people involved in these large unions. Certainly nobody involved in what you could call a trade union could lightly assume that because they are a member of a trade union they are in fact carrying out a craft, because they are not.
A lot of the original craft unions were small and elitist, but as time has overtaken them and the industries they are involved in have grown in dimension, while still craft unions they have become
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part of larger conglomerate unions. An outstanding example of this is my own union, the AUEW. I remember it was the AEU when I first joined and it was almost totally a craft union. One had to have a skilled craft to even join it, but as engineering developed and some of the crafts were broken down and it broadened out semi-skilled people started to join.
I can remember what was perhaps thought to be the biggest "fix" that ever took place in a union election during the war, when the AEU balloted on whether women ought to join the union. We could not find anybody who had voted for it, but nevertheless the vote was carried and that is how women came to join the AEU during the last war. I have no desire to press the amendment, but I hope that the Minister has not closed his mind to the few things that I have said. I still do not think that the words in the Bill are sufficient to cover the wide spectrum of people involved in some of the large conglomerate unions which now exist and will grow ever more conglomerate as time goes on.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 19:
Page 3, line 18, after ("union") insert (", including any part of the union, whether or not that section is itself a trade union").
The noble Lord said: This is a very important matter that concerns the way in which the Bill permits trade unions to divide the membership into constituencies in arranging its direct elections to the national executive committee. Having said that the union may divide the membership by way of trade, occupation or geographical area, the Bill then permits the union to divide the members according to sections. I quote the Bill:
"a class which is by virtue of the rules of the union"
and here we have the rules put in expressly, so we are happy with thatߞ
"treated as a separate section within the union".
Anyone reading that would think that that is extremely reasonable and indeed very sensible; but in moving this amendment I also have to speak to Amendment No. 46 which deals with the definition of "section".
Amendment No. 46: Page 8. line 16, leave out ("which is itself a trade union").
The definition of "section" your Lordships will find in Clause (6) (1) which says:
"section, in relation to a trade union, includes any part of the union which is itself a trade union".
Therefore the union is confined, according to the Bill as it now stands, to sections within the union which are themselves a trade union. It is therefore necessary to consider very carefully what that means.
The definition of "trade union" in Section 28 of the Trade Union and Labour Relations Act 1974 tells us that a trade union is:
"an organisation (whether permanent or temporary) which eitherߞ(a) consists wholly or mainly of workers of one or more descriptions and is an organisation whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers' associations; or"ߞ
in effect it goes on to deal with federations.
We are looking to see whether a section within a union is itself an organisation with the principal purpose of regulating relations between workers and employers. Both legally and practically that is an extremely difficult matter. There are some unions with a federal structure where areasߞand less than areasߞappear clearly to be separate trade unions within that definition. The National Union of Mineworkers is the best known example. The national union, the area unions and some branches (such as the Arlton and Haydock Branch) are on the list of the certification officer as separate unions.
But even where there is not a federal structure to a union there may well be a section which through history and for other reasonsߞfor example, occupational reasonsߞis independent in its existence and which perhaps carries on bargaining separately with employers as well as being part of the national union. In the print unions one finds that phenomenon. One wonders whether the medical practitioners' union, which went into the Association of Scientific Technical and Managerial Staffs, was or is a separate union for the purposes of this Bill. Perhaps the Minister who will reply will answer that question.
This matter goes to the situation in regard to mergers. In speaking to a previous amendment, I submitted, with my noble friends that the tight bandageߞto use the phrase of the noble Lord, Lord Howie, rather than straitjacket, the tight bandageߞof electoral practice now bound round the bodies of British trade unions if this becomes law, would inhibit amalgamations and mergers which, everyone would agree, would be desirable. The noble Lord, Lord Campbell of Alloway, suggested that that was not the case.
I wish to re-state perhaps more clearly that the practice of separate sections, and indeed of indirect elections through separate sections in a broad sense of "section", is one of the essential features of various types of amalgamation and merger, and anyone concerned with the British labour movement and trade union movement knows that that is the case. Therefore by allowing the union to divide into constituencies by section only when that section is a separate trade union within the definition, the Bill is offering a trade union very little and it is confirming its impediment against amalgamations and mergers.
I must add two matters to that case. First, as a matter of law, it is extremely difficult to apply the definition of trade union to these internal sections of unions that do not have a federal structure. Anyone who has had to advise on or discuss this matter knows that that is the case. The most recent authority is the case of Cope v. Crossingham in 1909 at page 148 of the second volume of Chancery Division reports. It is a case which I am sure the noble Earl, with his remarks from a sedentary position, knows very well. With regard to a resolution passed by a branch to secede from a union, Lord Justice Buckley, who naturally looked at the rules, said at page 161:
"The rules are full of difficulties…There does not seem to be any machinery for becoming a member, except by joining a branch, but it is difficult to say that a man could not become a member by joining at the head office…As I read the rules, the branches are not separate unions."
In 1909 the Court of Appeal had great difficulty in knowing whether the branches of this union were separate unions for the purposes of the issue before it. Why should the Government leave this matter in such an obscure state? Partly, I submit, because they have not understood their own Bill. One cannot read the Committee stage in another place without realising that, again and again, explanations were given of this part of the Bill which I am sure noble Ministers in this place would not wish to preserve. For example, the Under-Secretary of State, on 17th January at column 458 of the Committee proceedings, said that,
"Any other section as defined in the union rule book can also be included so long as it is a section. It cannot be a random and haphazard grouping but if it is a section properly set up with officers and a constitution, certainly it need not necessarily be a part which is itself a trade union."
That is a direct contradiction to the Bill. On 17th January at column 465 of the Committee proceedings, he said much the same:
"The union rule book determines what is a section."
He then appealed at column 459 and later on to the case of Kirkham v. NATSOPA, a decision of the employment appeal tribunal, saying that he could define a section as,
"An organisation or unit having officers and membership from which it is possible to retire."
If the Government would like to put into the Bill the definition that the Under-Secretary of State gave, that would he a distinct improvement. I wonder whether there has been a slight mistake, that perhaps the briefs got mixed up and the thing that was rejected was put into the Bill and the thing that the Government meant to put into the Bill got into the brief of the Under-Secretary of State in another place. I believe that that may well be the case. I am confident that the Government cannot wish that the affairs of British trade unions in elections on this important matter be governed by the obscurities of the case of Cope v. Crossingham in 1909 in the Court of Appeal. I am confident that for once we shall hear that the Government are prepared to look at this matter again. I beg to move.
Lord Gray of Contin: I must congratulate the noble Lord, Lord Wedderburn. He is very easy to listen to and one always enjoys his contributions. But perhaps on this occasion I could highlight the difficulty of having an academic looking after trade union affairs or speaking on behalf of trade unionists because they see problems where problems do not exist. On this issue it really is the noble Lord who has failed to understand the Bill. Clause 6(1) says that the word "section" includes any part of the union which is itself a trade union. It does not say that "section" means a section which is itself a trade union. The word "includes" is the key. Sections can be, or cannot be, trade unions. The definition of "section" includes both.
It is perfectly straightforward, but just in case there lingers any doubt in the mind of the noble Lord, perhaps I may explain briefly the effect of Clause 2(3)(c) as it stands. The effect of this provision is that where a union is composed of various sections which have a clearly separate identity under the union's rules, then it will remain perfectly lawful under the Bill for a union to apportion seats on its executive on any basis

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that its rules may provide as between the different sections within the union. The provision is thus a recognition of the fact that many unions maintain a constructive balance on their executives as between different sections of the union, and it also ensures that such arrangements need not be disturbed in any way by this Bill.
The flexibility of the provision in subsection (3)(c) is further enhanced by the definition of the word "section". 1 have already dealt with that definition, and so I shall not weary your Lordships' Committee by going over it again. But let me say in conclusion that I really believe that the proposals which the noble Lord, Lord Wedderbum, has put before us this evening are totally unnecessary. The Bill is perfectly clear and perfectly specific on those points. I am quite sure that when this Bill becomes an Act, and when it is being implemented by those self-same shop stewards on the shop floor to whom the noble Lord's noble friend referred a little earlier, it will be interpreted without anything like the difficulties which this evening the noble Lord, Lord Wedderburn, has suggested to us might arise. I am quite sure that when he reads Hansard (as we all do) and when he studies what he has said and what I have said, he will find that the explanation is perfectly clear. I know that he is a very reasonable spokesman and therefore I am sure he will wish to withdraw the amendment without further argument.
Lord Dean of Beswick: The noble Lord referred to the activities or the responsibilities of shop stewards under this Bill. I think he ought to be aware that under this part of the Bill the shop stewards, if they have any responsibilities. will have them taken from them.
9.44 p.m.
Lord Lloyd of Kilgerran: I hesitate to intervene at this stage hut, as a lawyer, may I say that the noble Lord the Minister said that he found it very easy to listen to the noble Lord, Lord Wedderburn, whereas it seems to me that he is in a state of complete unease because he did not answer any of the major points which the noble Lord made. I am speaking for myself on this matter, as I have not consulted my noble friendsߞI am glad that I have some support from the Government Front Benchߞand I would suggest that for the noble Lord to rely on the definition of "section" M this Bill is to misunderstand wholly the position.
As I understood him, the noble Lord, Lord Wedderburn, was referring to those sections of a trade union which are not necessarily themselves a trade union but which are, as a matter of practice, involved in negotiations with employers. He made a very important point, and that was that we wish to get trade unions to merge. The noble Lord, Lord Wedderburn, said that unless this clause of the Bill is modified in relation to the definition of "class", it will produce difficulties in relation to mergers. If I may say so, I am sure that the noble Lord, Lord Campbell of Alloway, with all his experience of trademark law, will support me on this matter.
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It leaves the position in rather a mess, and I should have thought that. in view of the major matters which the noble Lord, Lord Wedderburn, has raised, the noble Lord the Minister would like to take this back and think about it once more. That would be preferable to his making the kind of oration that he did and failing to deal with the specific points of objection to this subsection which the noble Lord. Lord Wedderburn, raised.
Lord Campbell of Alloway: Very briefly, as my name has been mentioned. may I say that I am grateful to the noble Lord, Lord Lloyd of Kilgerran, but I was not aware that we were discussing trademark law. Much as I would wish to support him on every conceivable occasion, I must say that if "includes" means "includes", which I suppose it does, I cannot see the difficulty.
Lord Gray of Contin: I shall very quickly answer the noble Lord, Lord Lloyd, because I sense the feeling of the Committee that there are other amendments which we are anxious to get on to and which are of major importanceߞ
Noble Lords: Oh!
Lord Gray of Contin:ߞbut let me not neglect the duty of a Minister to answer points. I am grateful for the intervention of the noble Lord, Lord Lloyd, albeit rather late in the proceedings. Nevertheless, I would reiterate to him that the word "section" covers both those parts of the union which are trade unions in their own right and those parts of the union which are not. I tried to make that as clear as I possibly could, and I reiterate it for the benefit of the noble Lord.
Lord Wedderburn of Charlton: I am in some difficulty. The noble Lord has said that, so let me briefly say a word. I listened very carefully to the noble Lord, Lord Lloyd of Kilgerran, and I apprehend that both he and I are in disagreement with the Minister about a very simple matter of construction. The Bill states in Clause 6:
"'section', in relation to a trade union, includes any part of the union which is itself a trade union".
Of course, the word "includes" is used, but what the noble Lord. Lord Gray of Contin, was saying to me was that that was the same as our amendment; namely, that a section was a section, whether or not that section was a separate trade union.
If that were the caseߞthe noble Lord has said it twice; no doubt he will say it three times, and what he says three times must be trueߞthere would be no point in having that definition clause, because it would mean that a section includes any part of the union which is itself a trade union, and includes any part of the union which is not itself a trade union. That is not what it says, and any court, given that, must make some sense of it. Even in this Government's legislation there must be some sense in this definition.
The noble Lord says that I raise this as an academic matter. I do not know when he last discussed it with shop stewards, but I discussed this very matter with shop stewards last week, because we were discussing this Bill and amalgamations. I said then what I say

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now: that I believe it to be the better interpretation that this Bill restricts constituencies to an artificially narrow area of sections which are trade unions. There is no other possible interpretation of the definition on page 8. There is no other need for the definition.
It may be that it is only when noble Lords on the Liberal Benches get up and join us that the Government will really listen. That has happened, so will they listen and take this back? I ask the Minister whether he will take this hack and look at it again. It is to us, and to ordinary trade unionists, a very important matter indeed. We shall not withdraw the amendment, but we shall not divide on it. I shall ask my noble friends to negative it in the usual way, if the noble Lord the Minister will not take it away.
Lord Gray of Contin: I have always operated on the belief that if you take something away you take it away with the genuine intention of seeing whether you can change it. I do not believe that if I took this away I would come back with any different suggestion. Therefore, I would be misleading the Committee if I took it away, so I suggest that the noble Lord should negative this amendment.
On Question, amendment, negatived.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 20:
Page 3, line 28, at end insert ("and otherwise than by reason of an unintended mistake by those conducting a ballot which it is reasonable to excuse.").
The noble Lord said: The amendment spans some of the issues which have already been dealt with and runs over to later matters. However, it is convenient, very briefly, to take the point now. The amendment suggests that since the Bill provides that certain requirements have to be satisfied, an exception should be added that there should be no fault in the ballot where there is an unintended mistake which it is reasonable to excuse. Whether or not the noble Earl, Lord Gowrie, introduced companies, or whether I did, I am sure he will not mind if I say that this amendment is based upon a parallel with company law. In Section 448 of the Companies Act 1948 there is a provision which permits, in any proceedings for negligence or default or breach of duty, an officer of the company to be excused if it appears to the court that he acted honestly and reasonably and that in all the circumstances of the case he ought to be excused wholly or partly from liability. This is a much shorter version, and the drafting ought perhaps to be expanded.
We say that having reached the point where quite serious demands are made upon union machinery, whether or not they have Government money-you cannot cure everything in organisations merely by putting funds in—
The Earl of Gowrie: Hear, hear!
Lord Wedderburn of Charlton: I am grateful for the noble Earl's agreement. This is a matter of human relationships. Unions, we say, faced with all the
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tripwires in Clause 2 of this measure, are hound to make mistakes. Already people are lining up to bring actions. We all know who they are. We know, too, that available registers of members in some unions are not, with the best will in the world, easy to maintain, especially where the workforce is mobile, as in the construction industry. Even in a union like the AUEW, there is the recent famous statement of Sir John Boyd in which he said:
"We rely on 2,558 branch secretaries to advise the executive council in their fortnightly movement reports of deaths, transfers, resignations and expulsions. If they fail, then certain inadequacies are inevitable. Twice a year all secretaries are provided with an updated voting register, and attention is drawn to the names and addresses of members whose ballot papers are returned undelivered. To have a register of 805,350 voters out of a membership of 1 million is a wonderful achievement".
I doubt whether the Government would deny that that is so. However, in such a situation it is inevitable that honest mistakes are made. Indeed, on a number of occasions in another place, as on 24th November, the Minister of State appeared to say that an honest mistake on the part of a union would not give rise to liability. It is no answer to this point to say that the court may have a discretion. The court's discretion comes later in regard to enforcement. In this amendment we say that if there is an unintended mistake and it is reasonable to excuse it, there should be no liability in the first instance for failure to bind the tight bandage of electoral procedure so tight as Clause 2 would have it. I beg to move.
Lord Gray of Contin: I am sure that the noble Lord, Lord Wedderburn of Charlton, will agree that we have already discussed this matter in some detail under Amendment No. 13. It revolves around the difference between opportunity to vote and entitlement to vote. Therefore, I shall try to deal with it fairly briefly. I can best do so by describing just exactly what the Bill's provisions on entitlement to vote are.
Subsections (I) to (4) of Clause 2 provide for one of the essential democratic requirements in any election. This is the basic principle of one man, one vote. But at the same time the Bill allows unions to continue to operate sensible restrictions on entitlement to vote where these do not conflict with the Bill's basic democratic requirements. Thus, Clause 2 provides for two kinds of exception to the one man, one vote principle in order to accommodate acceptable current practice in trade unions.
The first exception is provided by subsections (1) and (2) together, which allow certain groups of members to be excluded from all elections to the governing body, if that is what the union's rules provide. The second exception is provided by subsections (3) and (4), which deal with the practice which is very widespread in the union movement of allocating seats on trade union governing bodies on a regional, occupational, trade group or sectional basis, the electorate for such seats being in general the members in the particular region, occupation or section concerned. Subsection (3) allows such arrangements to continue subject to the safeguards in subsection (4).
We shall shortly be discussing the Government's amendments to subsections (6) and (7) of this clause. That will provide an opportunity to discuss the Bill's provisions on the opportunity to vote. However, I hope that on the basis of what I have said the noble Lord, Lord Wedderburn, will be prepared to withdraw his amendment at this stage.
Lord Howie of Troon: There is one small point which the noble Lord the Minister has not dealt with. While we all agree with his comments about entitlement to vote and opportunity to vote, we must realise that a ballot goes a little further than that. The ballot is not really finished until after the votes have been collected and counted. It is quite possible that at these later stages, with which the noble Lord did not deal, there could be an honest mistake made. It is honest mistakes that we are talking about. The point of this amendment is to protect people who have made an honest mistake which did not materially affect the final result. The Minister's explanation did not cover the points I made, and in fairness he should undertake to look at this point again; but I will not ask him to take up more time by replying now.
Lord Wedderburn of Charlton: I do not agree with the Minister that this matter is dealt with by Amendment No. 13, which has really become Amendment No. 22, which we are about to debate, when the Government insert their new subsection (6). But if the Minister invites me to return to this point in that context, I shall be happy to do so. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.57 p.m.
Lord Beloff Lord Beloff moved Amendment No. 21:
Page 3, line 31, leave out subsection (6) and insertߞ
("(6) Every person who is entitled to vote at the election shall be allowed to vote without interference and have a fair and convenient opportunity to vote. Such elections shall he held by postal ballot, with the voting papers being sent to all members recorded as being eligible to vote in the latest available central register of membership. Responsibility for the surveillance of the distribution, return and counting of voting papers shall be in the hands of an independent body.")
The noble Lord said: In moving the humble Address after the Speech from the Throne, the noble Earl, Lord De La Warr, applauded the inclusion of a ballot Bill in the Government's programme and pointed out that the need for the ballot was the result of the enfranchisement of working men who claimed themselves to be fearful of pressure from their employers as to how they cast their votes. I am of course referring not to my noble friend Lord De La Warr but to the bearer of that title during the parliamentary Session of 1872. During the debate on that ballot Bill in another place. a Member there pointed out that working men were fearful not only of their employers bringing pressure upon them but also of pressure from officials of their trade unions. So what we are discussing has a long historyߞ1872 to 1984.
I refer to these events not merely to show how long
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a history there is of attempts to safeguard the integrity of elections, but also to make the point that this amendment is trying (as the Bill in general is doing) not to impose some alien device upon unwilling trade unionists but to meet as best one can a demand that has come to noble Lords from many trade unionists themselves, who believe that their right to vote freelyߞtheir opportunity, if one likesߞis curtailed by aspects of the present system in certain unions and that they would not (and this is the reason for the amendment) be sufficiently safeguarded by the proposals in the Bill itself.
The case for the superiority of postal ballots over other forms of ballot was made in general terms in a notable speech by my noble friend Lady Cox, who would have been moving this amendment had she not been overseas today. I do not wish at this late hour (a late hour not of my choosing) to cover the same ground again. In that speech I may remind noble Lords that the noble Baroness, Lady Cox, quoted the views of the retiring general secretary of the EETPU, Mr. Frank Chapple, and I in turn should like to quote his successor elect, Mr. Eric Hammond, who in a speech earlier this month said:
"No other union has experienced the anguish and humiliation which my union suffered as a consequence of the communist ballot riggers who once controlled our affairs … we turned out the communist fraudsters and introduced postal voting with ballot papers sent direct to the members. We regard our system as the only genuine fool-proof method."
As other passages in the same speech by Mr. Hammond show, he is no follower of the Conservative Party and no admirer of the present Government. But I think that the experience which he has had in the service of his union should give added weight from a different political quarter to the strong support for postal ballots which has come, as was referred to by my noble friend Lady Cox, from the Association of Conservative Trade Unionists and from the Organisation of Trade Unionists which is linked with the Social Democratic Party.
If for a moment only I may speak in the direction of my noble friends, I would say that I find it quite extraordinary that on a matter of this kind the Conservative Party, which has devoted great energy to building up the Association of Conservative Trade Unionists, should not have regard to its expressed views on a matter which is of more direct concern to them than to any other members of the Conservative Party. The chairman of the party, in another capacity, as has been pointed out today, gave some very unsatisfactory replies to the suggestions that postal ballots should become the norm. He may find his position as chairman a little difficult when he comes to plead with the Association of Conservative Trade Unionists to put its full weight behind the party in any elections that may be coming.
I would not suggest. in moving this amendment, that there is only one way by which members of any organizationߞtrade union or whateverߞcan safely and democratically elect its officials. Indeed, if, as I hope, the Government accept the principle of this amendment, they should be able at a later stage to introduce a more elaborate version which would make special arrangements to fit in with the needs of particular unions, where the circumstances of the

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workforce make postal ballots difficult to provide (as we dealt with earlier today) for indirect elections where these seem more appropriate and are already the practice in certain unions.
What my noble friends and I seek in putting down this amendment wish, as my noble friend Lady Cox sought on the Second Reading, is simply to establish the principle that direct postal ballots should be the norm and departures from this norm should have to be justified. The reason for this arises from the nature of the current, and possibly future, contests for office in trade unions. The noble Lord, Lord McCarthy, who has a certain capacity for verbal acrobatics, managed to turn this issue upside down when dealing with an earlier amendment. He said that the Bill threatensߞand no doubt he would agree that if it were amended, it would still so threatenߞto politicise trade union elections. The truth is that the elections are politicised. That is the reason both for the Bill and for the amendment which we are now putting forward. Where you have in any form of electionߞand it can equally be applied to the reforms in parliamentary elections in the last century to which I have already referred-organised parties striving to achieve power in an important and powerful organisation, you cannot always rely on self-restraint. Otherwise, how would one occasionally seeߞmore than occasionally, perhapsߞevidence of a fact that the elected executive or whatever it may be appears to indulge in actions which are somewhat removed from the impression that one has of its general membership?
Noble Lords in all parts of the Committee may occasionally have dealings with officers of local government over rates or planning or whatever it may be. I wonder if they have ever come into the office of a local government officer and found it difficult to attract his attention because his head is buried in the Morning Star. Yet that union has itself given financial support to that newspaper. Mr. Hammond and Mr. Chapple have talked about the communists; and that, of course, was the occasion for the famous fight which led to the establishment of their present electoral system. But we know that since that successful battle, which is now many years ago, another movementߞcall it Trotskyist or Militant; it takes more than one guiseߞhas also gone to work to capture trade unions through the exploitation of the possibilities afforded by their electoral system.
Noble Lords on the other side of the Committee, at any rate, should be able to recognise many of these tactics since they are the same ones which have been adopted in order to remove from their constituencies and remove from their candidacies friends of theirs in another place. And there is no greater authority on the ability to do this than the noble Lord, Lord Underhill.
Why not, then, workplace ballots? May I again quote Mr. Chapple? He says that workplace ballots are too easily open to the intimidation of the voters, to the improper use of discarded ballot papers, to phoney returns and to a variety of other illicit behaviour. The Government's apparent case for preferring workplace ballots to postal ballots is that they produce a higher turnout. Turnout is obviously an important feature of any electoral system. But it is not the only important feature, otherwise we shall all have to salute the turnout achieved in the Soviet Unionߞ99.5 per cent!
A splendid turnout, but it still does not give us total confidence in the method by which citizens of the Soviet Union elect their representatives.
The other reason which apparently moves the Government is that it is difficult to keep proper recordsߞand clearly proper central records are required if you have a postal ballot. The noble Lord opposite quoted that the AUEW has managed to produce a register which certainly incorporates a vast majority of its members. The EEPTU keeps up to date and claims successfully to keep up to date a register which enables it to have a central postal vote. The important thing, after all, is not the number of votes cast but the fact that the votes that are cast are cast by the people in whose names they are cast and by no one else.
In the Second Reading debate, the noble Lord, Lord Wedderburn of Charlton, declared:
"There really cannot he any case for control of trade union rules for elections based upon malpractice".ߞ[Official Report, 15/5/84; col. 1340.]
I know that the noble Lord and his noble friend Lord McCarthy have a hear-no-evil, see-no-evil pact where trade unions are concerned; and I take it that the noble Lord, Lord Dean of Beswick, is associated with them, as a man who speaks no evil.
Lord Dean of Beswick: The noble Lord is making some rather oblique assertions and accusations. Would he substantiate them? Finally, would he get on to the amendment on the Marshalled List?
Lord Beloff: I am about to substantiate them.
Lord Dean of Beswick: It is about time.
Lord Beloff: The noble Lord, Lord Wedderburn, saysߞand has said more than onceߞthat we cannot proceed to legislate about malpractice because there is no evidence that this ever occurs. I can only suggest that he is so busy with the Geneva conventions and with the commentaries by other learned lawyers upon those conventions that, unlike the rest of us, he does not read the daily newspapers. Otherwise, he would know, for instance, that in the great city of Bristol. the Transport and General Workers' Union has had to order an inquiry because of allegations of malpractices in the very important election which is going on for the general secretary of that union.
Lord Wedderburn of Charlton: Is the noble Lord saying that those malpractices are proved, or is the matter sub judice? Is that evidence?
Lord Beloff: I did not say that those malpractices are proved.
Lord Dean of Beswick: The noble Lord would rather smear.
Lord Beloff: Nor is it a smear.
Lord Dean of Beswick: Of course it is.
Lord Beloff: I said that responsible trade unionists obviously think that there are matters which deserve investigation. I say no more, and I say no less.
Lord Dean of Beswick: You are smearing people. Give the facts.
Lord McCarthy: Where is the evidence? There is no evidence.
Lord Beloff: The evidence which the noble Lord seeks would be evidence which has been tested in a court. There are, alas, a great many examples of things which are unjust and which are not brought to court for reasons with which the noble Lord, Lord Wedderburn, is very familiar. One is the cost of litigation, with which his profession is perhaps concerned, and the other and more important one is that if it is done by a member of an association he may find that he loses his status among his friends and his colleagues, and may even lose his job.
However, I take what the noble Lord, Lord Wedderburn, says seriously. I thought therefore that I ought to look more closely at examples of trade union election procedure. I have been studying in some detail the election just held by the Civil and Public Services Association, whose high turn-out in previous years is one of the things quoted in favour of work-place ballots. though that turn-out has dropped, as noble Lords will know, very markedly recently.
It is clear if one looks at the procedures of a union of that kind that the mental image of work-place ballots based upon the practice of the National Union of Mineworkers, with a limited number of workplacesߞthe number of mines in the countryߞand the regular pattern of work, really cannot possibly apply to a union whose workers are scattered all over the country in innumerable work-places, sometimes in ver), small groups. Therefore, in the organisation of work-place ballots, enormous powers are put in the hands of local officials. They issue the ballot papers. I must say I should not like to have to fill in a ballot paper of that length: it makes some Californian ballot papers look relatively simple. They collect them. They are the interpreters of whether or not the ballot paper has been filled in correctly. They are the people responsible for counting them and they are the people responsible in the branches for returning the totals to the central organisation.
Already, and not for the first time, there are complaintsߞI do not say they are proved complaints, I say there are complaintsߞthat here and there, in one place and another, satisfactory opportunities for voting at times convenient to the individual worker have not been provided. Furthermore, despite the month which the union's rules allow for the election, 82 branches sent their papers in late; 20 branches sent in papers which were spoiled and 112 branches sent in no papers at all. In other words, there are clearly quite a considerable number of members of that unionߞwhich the Government regard in some respects as a model for its workplace ballotsߞwho have not cast a vote. Therefore it seems to me that the noble Lord, Lord Wedderburn, is presuming too much on the Committee when he says that under no circumstances, in no possible way, could there be any cavil at the practice of any union in respect of any election.
I come to the end. The Government have now introduced two amendments which I understand were
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meant to deal with the criticisms of their scheme and with the case for postal ballots, which had been made by my noble friend Lady Cox. I regret to tell the Ministers that they do not satisfy the Association of Conservative Trade Unionists; they do not meet the criticisms of the EETPU. and they do not satisfy either myself (which does not matter very much) or those who have put their names to this amendment with me. I fear that these amendments do not bear the marks of ministerial inventiveness but clearly are the work of some civil servant whose idea of a hotly contested election is the annual ballot for the committee of the Athenaeum.
What the Government appear to be doing in these amendments is to thrust on either the trade unionists or the courts the burden of making certain that malpractices do not occur. First, the burden will he on the individual trade unionist, who is going to show his distrust of his colleagues, his shop stewards and his branch officials, by asking for a ballot paper. That is not a very inviting prospect, especially in any organisation which claims loyalty from its members. Secondly, it is to ask the courts or to enable the courts to intervene to enforce a postal ballot if complaints against the conduct of another form of election are upheld.
The curious point seems to me that the Government, in the second amendment, give away their entire case on practicability. If postal ballots become practicable because a court has ordered them, why should they not be practicable from the beginning and included in the Bill? There are not many subjects upon which I find myself in total agreement with noble Lords opposite, but I may say that on the question that the courts should be brought in as little as possible in the conduct of both industrial relations and the internal affairs of trade unions, I agree with them. The important point in legislation is that it should be self-enforcing by the people it is intended to benefit.
I therefore very respectfully ask the Minister to suggest to his noble friend that, in view of the strong support from quarters with which he should feel an instinctive sympathy in his own party and in other parties as well, he should think again and come back with a suggestion. That is a suggestion not necessarily in the terms of any particular amendment but a suggestion which would make postal ballots sent to the individual's home the normal method by which the governing bodies of trade unions are elected. I beg to move.
10.20 p.m.
Lord Marsh: This is a very special night. That is demonstrated by the number of noble Lords attending the debate at this late hour. I shall seek to be as brief as possible. It is special because this is a very unusual situation. Tonight, the Government will be going through the "Not-Content" Lobby arm in arm with the Labour members of the Opposition. One could almost stop there and say that there must be something wrong with the Government's position. As a result, they will almost certainly, of course, defeat the amendment. They have very efficient Whips. The amendment, I suspect, is gone.
They will defeat an amendment that is a simple amendment. All that it seeks to do is to provide

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ordinary lay members of trade unions with the protection of secrecy when they indulge in a ballot on what could he a highly controversial matter. For that, the Government Whips, with their skill and dedication to duty, will do what they can. As they walk through those Lobbies, for the first time, the noble Lords, Lord Wedderburn and Lord McCarthy, will have around their shoulders the friendly and protecting arm of Ministers opposite. I hope that the noble Lords, Lord Wedderburn and Lord McCarthy, have a greater appreciation of the occasion than I expect noble Lords opposite to have.
Of course, the Government will have other supporters tonight, much further to the Left than most noble Lords on the Labour Benches. The Socialist Workers' Party would also be opposed to the amendment; the Militant Tendency would support the Government in their opposition to this amendment; Mr. Arthur Scargill and the Morning Star ߞall of them support the stand which the Government take tonight on this amendment, not just in passing but as something they see to fight against, as some sort of threat. Their supporters and their colleagues who will march with them in this battle-one can understand totally their view. I have no issue against them at all. They have always been against the principle of compulsory ballots. If you are against the principle of compulsory ballots, it is perfectly logical to be against anything that makes the compulsory ballot more effective in its intentions. There is a perfectly sensible and a perfectly respectable argument against the concept of compulsory ballots. Noble Lords opposite have put those arguments. They are arguments that I do not accept, but they are perfectly respectable arguments.
I cannot begin to understand how anyone can support the principle of compulsory ballots but deny those concerned the right to cast their votes without the fear of intimidation or ballot rigging. The noble Lord, Lord McCarthy, on a number of occasions this afternoonߞhe did so in his very first contributionߞhas poured scorn on the idea of ballot rigging within the trade union movement. It is a loveable and innocent characteristic. It is something that we appreciate. It has a charm about it. Only an academic could believe it.
Lord Underhill: Or an organiser.
Lord Marsh: My noble friends should not push the line too far. I am sorry; I should say that noble Lords on the Labour Benches should not push the line too far. I have been, as they will know, a full-time union official for nine years.
Lord Dean of Beswick: Unpaid.
Lord Marsh: I played an active role in the Labour Party when the noble Lord, Lord Underhill, was its very successful leading apparatchik. Do not tell me that political parties and trade unions do not indulge in a little gentle massaging and manipulation of ballots. That is a degree of naivety that I will accept from some noble Lordsߞ
Lord Underhill: We have had innuendoes. I know a lot about the Militant Tendency movement, but we
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have had smears and innuendoes of which the Militant Tendency would be proud. We ought to have definite facts, and not smears of that kind.
Lord Marsh: I do not want to digress, and I was hoping not to be controversial in this. If I may say so, the noble Lord, Lord Underhill, has the credit for being the person who exposed the ballot rigging and the manipulation involving Militant Tendency within the Labour Party. He was responsible for that, and it was a very honourable achievement, and a very important one so far as this country is concerned. He knows far more about it than I do.
I shall come to the amendment; I was diverted against my wishes. Ballot rigging has been widespread for generations in trade unions, and all sides have been involved in it. The widespread corruption which was exposed in the ETU 20 years ago, and to which the noble Lord, Lord McCarthy, referred at the very beginning of the day, was not the result of a lack of ballots. Many unions have had ballots and a widespread structure of balloting. It was about the manipulation by the union of its members by misusing the balloting procedures which the ETU had. Ballots, of themselves, do not prevent corruption within the management of trade unions; it is the way in which they are conducted that matters.
The noble Lord, Lord Beloff, mentioned allegations relating to the election of the general secretary of the Transport and General Workers' Union. That immediately brought some noble Lords to their feet. They said he did not have evidence, that it was innuendo, that there was no evidence of it. Of course, one cannot conceivably mention these things as facts, because they are not facts, they are not proven; indeed, the evidence has not been heard. So I shall not make any allegation at all. I shall simply inform the Committee of what the charge is in the elections for the general secretaryship of the Transport and General Workers' Union. The vote is carried out by those eligible presenting their union card. When it is franked "GS", that demonstrates that they have cast the vote in the general secretary's ballot. The only thing that people are suggesting-they may be wrong; I do not know: it does not necessarily prove anything at allߞis that the allegations of vote rigging were made after a number of members found their cards had been stamped when, in fact, they had not voted. I would not draw any conclusions at all from that.
Then there is the questionߞit was mentioned in passingߞof the election for the general secretaryship of the National Union of Mineworkers, which took place quite recently. Again, I make it very clear that I do not draw any conclusions at all. I simply quote the argument which Mr. John Walsh, who was the unsuccessful candidate, has placed in writing, and about which he is prepared to go to the High Court. Mr. Walsh is asking why the polling station closed early at Kellingley Pit, in his home territory of North Yorkshire, depriving some miners of the right to vote; why the figures for unused ballot papersߞan essential part of the counting procedureߞhave not been issued; why there was, as was said, an abnormally high percentage of spoiled ballot papers; namely, 3,935. Mr. Walsh was defeated by 3,615 votes. Several well-informed leaks after the closure of ballots, which noble

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Lords read about in their newspapers, demonstrated, after the victory for Mr. Heathfield, that a number of people had access to the ballot papers.
Those are the charges. They may be totally wrong. It may be something which does not happen and has never happened. and that, left with that degree of power, we are all perfectly all right. Obviously this is the view of Her Majesty's Government. The fact is that workplace ballots are not, and cannot be, secure from interference: and, more important, they cannot be secret. They cannot be secret because men and women who have worked together, day in and day out for years on end, are bound to be aware of the views of their workmates on major matters affecting their working lives.
Think for a moment of the present miners' strike. Day after day, very brave men, some of them a small minority in their community, fight their way to work. with the aid of the police, through the screaming, fighting ranks of Mr. Scargill's storm-troopers. Some time in the not too distant future the strike will be over and in many pits those self same thugs who we see each night will be back in charge of the local union branch. Among their other duties they will have the task of ensuring fair play in the ballots that follow. They will supervise the balloting procedures. They will not easily forget or forgive those who challenged their authority. Those pits will not be happy places for those who so long defied that mob. Many of us will admire their determination, but very few of us will envy the situation in which they find themselves when they go back down those pits again.
There is nothing hypothetical about this. It is not an academic exercise. It is the real world for many thousands of trade unionists at present. Yet in that situation we are told by the Government that it would be wrong to allow them to vote in the security of their own homes, secure in the knowledge that no one can possibly know how they voted, becauseߞand this is the crucial pointߞno one will know whether or not they did vote. That is the difference. When a man votes at the pithead you do not have to see the ballot paper, you know his views. With a postal ballot no one will know whether they have voted at all.
I ask the noble Lords to consider tonight whether the bully-boys who we see every night on our television screens would be more likely to support the amendment or to oppose it. I regret to say that I have no doubt whatever that the militants would be in the Lobby with the Government and with the Opposition. I have no doubt that if compulsory ballots are conducted at the workplace and under the supervision of worker activists, we shall have constructed an instrument of coercion and intimidation. That will not just be wrong: that will be shameful.
Lord McCarthy: I want to address myselfߞif I canߞto the remarks of the noble Lord, Lord Beloff. The only thing that I want to say about the noble Lord, Lord Marsh,is that I thank him for his concern about us as we go (if we do) marching through the Lobby with the Government. But the noble Lord should know how we feel. After all, in his time he must have been through every Lobby that there is. So do not worry about us all that much: we shall survive. I would
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rather turn to the argumentߞif it can be called an argumentߞwhich has been put forward by the noble Lord, Lord Beloff.
I do not think that the noble Lord was present earlierߞalthough he may have beenߞwhen we were discussing with the noble Earl the question of Part 1 and Clause 1 of the Bill. I was trying to get the noble Earl to tell me what it was that justified the Government in singling out trade unions and saying that they must have direct elections and under no other system could they operate, and what it was about trade unions that did not exist in clubs, in companies, in professional associations or in Parliament itself. I am not sure whether the noble Lord was present or not. However, it is quite clear that he is using the same argument. Once again we are being told that we must have somethingߞin this case a postal ballotߞimposed upon trade unions which is not imposed upon clubs, companies and professional associations. A compulsory postal ballot is something which we do not have in a general electionߞ
Lord Howie of Troon: Will my noble friend give way? My noble friend has mentioned professional associations twice. He is quite right in saying that postal ballots are not imposed upon them. But the great majority of professional institutions, such as the Institution of Civil Engineers, to which I belong, use postal ballots and always have done so, and they use them perfectly sensibly. Therefore, will my noble friend stop saying that?
Lord McCarthy: I would not accept that the great majority do so, but it is perfectly true that some do so. The point is that the law does not insist that they do so: that is the issue. Nor does the law insist that it happens in general elections or in local elections. You cannot get a compulsory postal ballot: you cannot even get the postal ballot on demand in general electionsߞeither you have to be ill or you have to be abroad. You cannot get it even when you are on holiday. But in the trade unions the amendment says, yes. Trade unions are not like clubs, companies. Parliament or professional associations: they, and they alone, are so corrupt that you can get a decent election in a trade union only if you have a compulsory postal ballot! That is the sense in which the noble Lord, Lord Beloff, is in line with the Government, because they also believe that unions are very peculiar things.
One would expect there to be some justification for singling out trade unions in this way. With respect, one would expect that one would get some evidence. We say that there has been no evidence to justify the charge, and no evidence to justify the amendment. Indeed, the Government say that. The Minister of State in the Standing Committee on 31st January 1984, at col. 899, said in reply to a question by Mr. Mikardo:
"The hon. Gentleman must be reminded that the Bill is not concerned primarily to avoid malpractices in trade unions. Its primary concern is to ensure that trade unions provide a democratic framework in which their members, who are often too weak to defend themselves individually, are given the right to control their own unions".
In other words, the Minister of State is not suggesting that he can prove malpractice on a scale to justify his

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own Bill. We are not saying that there are not malpractices in trade unions. There are malpractices in every voluntary organisation. There is not a bowls club, a tennis club or a golf club in the country which does not have malpractices. Of course, there are malpractices.
Noble Lords: Oh!
The Earl of Onslow: Is the noble Lord really saying that the Transport and General Workers' Union, the electrical trades union and the mineworkers' union are of the same importance as the West Clandon Village Legion or the Merrow Golf Club?— because, if so, he underestimates both the unions and the Merrow Golf Club!
Lord McCarthy: The answer to that is, no, I am not saying that; and if the noble Earl had listened he would have known that. I am glad that I have struck home. All these insults can be made about trade unions and there is no reaction at all. I should have mentioned cricket clubs; I will say it again: malpractices exist in cricket clubs. Of course there are malpractices, but for the most part they are insignificant and for the most part they do not affect the result. Very often they are simply the result of people not carrying out precisely what is said in the rules, because they can think of a rather easier way of doing something.
One of the great problems which I have over trade unions— and I think to some extent my noble friend Lord Wedderburn has— is that trade unions will not read their rule books. They believe what what stands to reason must be in the rule book, and therefore, without carefully reading their rule books, they will go about their business doing things which they think ought to be done and which they ought to be able to do. But if they find themselves in front of the noble and learned Lord, Lord Denning, he will say that that is contrary to the rules and it is a malpractice. These are relatively innocent things and they exist in all voluntary organisations.
I am not saying that they do not exist in trade unions. Why should I? I am not even saying that within trade unions there are not examples of the kinds of things which, as the noble Lord, Lord Marsh, said, were such a scandal and such a disgrace in the case of the ETU. Nevertheless, we must say that we have had no case of the size and scandal of the ETU since the middle 1950s.
Lord Wedderburn of Charlton: Nothing like it.
Lord McCarthy: Nothing like it. We can be quite certain that, if we had, we should have read all about it in all the newspapers. So we are not saying that there are not malpractices; we are saying that the degree of malpractice that exists in voluntary organisations exists in trade unions; that by and large they are no worse than anywhere else; and that what exists does not justify what is being proposed in this amendment and does not justify what is being proposed in the Bill.
Lord Hooson: Is not the noble Lord taking a long time to say that though we are all against sin we should not be dogmatic about it?
10.40 p.m.
Lord McCarthy: That is partly because I am being interrupted, but I shall try to get on. One argument which might be made for having postal ballots would be that it would lead to greater participation; but the ground has already been given up by the noble Lord, Lord Beloff. He has already admitted that the evidence indicates that the greater degree of participation is caused by a mix of systems. That is what the Undy book indicates. If you have a mix of systems you can have workshop ballots when you can get them, when the employer will co-operate, or you may have postal ballots, or you may have people simply voting in the branches, or shop stewards taking round the voting boxes.
Noble Lords: Oh!
Lord McCarthy: I know that every time people hear the words "shop stewards" they suspect something. The evidence indicates that the best way to get the highest degree of participation is to have a mixed system, and that if you have postal ballots in many unions— in, for example, unions with high rates of turnover— the result will be relatively low levels of participation. The other side do not mind that. They have given that away, and so they bring forward their amendment.
I hope that the noble Lord, Lord Beloff, will answer me about the words used in the amendment. He seemed to be saying in his speech that the amendment really only meant that postal ballots would be the normal way of doings things, so that abnormal unions in abnormal situations would not have to have postal ballots. I do not see that in the amendment. What the amendment says is that everybody would have postal ballots. If he does not mean that then he should put something different in his amendment.
Then the amendment says that election shall be held on the basis of a "central register of membership". I hope the noble lord will take it from me that in fact there are many unions which do not have a central register of membership. Far from being in the position of having a recorded central membership register, there is not one. Is there going to be some coercive power in the Bill— and where is it going to be?— to force unions that do not have central membership registers to get them?
The main reason why they do not have central membership registers is because they have found that they can make their registers much more accurate if they do not centralise them. If you centralise them they tend to get out of date, and so the unions keep their registers in the regions or in the areas. If the noble Lord wants a central membership register, in many unions I am afraid that the register will be even more out of date than it would be if he had the register in the regions. If that is what he is saying, then he should tell us.
In the second line of the amendment it says:
"the election shall be allowed to vote"—
that is to say the elector—
"without interference".
I want to know without interference from whom? I take it from where the amendment has come that the

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noble Lord is really thinking about interference from shop stewards. Naturally. But it might be interference from the employer. What is the mechanism in the amendment by which this interference from the employer is going to be repulsed? What are the sanctions? It seems to me that this amendment is not only unnecessary and unjustified but is extremely badly drafted as well.
Viscount Massereene and Ferrard: Before the noble Lord sits down, may I say that he forgot to mention immunity from the law. It is a civil proceedings order, so you cannot compare it with a club, or a professional association.
Noble Lords: Order!
Lord McCarthy: I always thought we had some immunity from law in this House, and I always thought that companies had immunity from law. If the noble Viscount is saying that one is like a trade union if one has immunity from law, many people would come in.
Lord Denning: I ask your Lordships to support this amendment. The opening words of it are quite unexceptionable:
"Every person who is entitled to vote at the election shall be allowed to vote without interference and have a fair and convenient opportunity to vote.'
The whole question is: how is that to be afforded? Is it to be by a postal ballot or by a workplace ballot? As to a postal ballot, it is virtually unchallengeable. There should be a central register of members for all unions if they are to conduct their business properly, to know about subscriptions, arrears of subscriptions, expulsions, membership, and the like. If they are in the regions, let them all be gathered together as one central register of membership, so that there is no difficulty in conducting a postal ballot. It will be in secret, without interference in any way. It is a truly democratic method of election.
What is the alternative?— it is the workplace ballot. We have heard all the difficulties of ballot rigging, and the like: but I suggest that on this Bill and in any Bill, such a ballot can be challenged before the courts by any person— every person has a right to vote and see the number of matters that can be decided by the judge on any application to declare the ballot unlawful, without any interference or constraint. How can that be challenged? Any one of those men who were impeded in going to work will be able to challenge it in any way, such as not receiving a voting paper, and time after time so far as is reasonably practicable he should "have a fair and convenient opportunity to vote". "So far as is reasonably practical"— I can imagine case after case being brought by individuals before the judge and saying "This was not fair. I did not have an opportunity. I did not have the proper time."
This system of ballot can be challenged time after time by the judge. He has the most difficult questions of fact and of law to decide. but without interference or constraint, whether it is fair and reasonable, whether it is "so far as is reasonably practical"— time after time a workplace ballot can be challenged and will be
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challenged before the judge. He will be in great difficulty about it on points of fact and law. There will be an appeal to the Court of Appeal and the decision on the validity of the workplace ballot will not survive or will not be decided for months and months. The objection which I would take to the workplace ballot is that it can be challenged and will be challenged in the courts on most occasions. It is quite right that every person has a right to vote. He will be able to challenge it before the court and there will be virtually no certainty whatever that the ballot will be lawful.
No, the only safe, unchallengeable form of ballot is the postal ballot, and that is why I suggest to your Lordships that it is very proper to accept this amendment, at least in principle.
Lord Maude of Stratford-upon-Avon: I intend to intervene only very briefly in this debate because I think I am probably in a very small minority on the Back-Benches on this side of the Committee. While I have the greatest respect for and sympathy with the intentions of my noble friends who have moved this amendment, I do not believe that it is the most practical way to solve the problems that they wish to solve. I very much prefer the amendment which my noble friend the Minister will move later. The amendment of my noble friend the Minister gives a reasonable opportunity to vote by post, and this will produce a mixed system, which others speakers have said is preferable.
There are several points which I would wish to bring to the notice of the supporters of the amendment of my noble friend Lord Beloff. First, I thought that he and, with respect, the noble and learned Lord, Lord Denning, skated very lightly over the difficulties of producing an effective, up-to-date central register of a large, nation-wide trade union. It is by the nature of it bound to be out of date. There is no way— even, I suspect, if one knows the vagaries of computers— by which even modern technology can produce a fully up-to-date central register in a very large trade union. But there is, I think, a much more important point. I fully understand the desire of my noble friends to avoid the kind of rigged ballot which produces unrepresentative, and in many cases extreme militant, officers and officials of a trade union, but what I think they have not taken into account is that many unions which have provision for workplace ballots do produce results which are unrigged and which are effective, and if postal balloting is compulsorily put in place of this then more problems will be created than solved.
Let us take, for example, the case of the National Union of Mineworkers, about which at this moment I can perhaps talk more freely than my noble friend the Minister might wish to speak. I have never heard it suggested, for example, that Mr. Arthur Scargill was elected president of the National Union of Mineworkers through any form of ballot-rigging, suppression, intimidation or what you will. I would say, with respect to his opponents, that he was elected because he had been a popular and effective regional leader, that he was by far the most competent, popular and obvious man for the job, and that none of his challengers appeared to match up to him. If I recall correctly, he was elected through pithead ballots with

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a turnout of something like 80 per cent. With the best will in the world, nobody is going to tell me that a compulsory postal ballot on that occasion would have produced an 80 per cent. response. It would not have done: it would have produced something like a 30 per cent. or 35 per cent. response.
Now let us suppose that this amendment were carried and the Government inserted in the Bill a provision for compulsory postal ballots. Are they then going to go to the National Union of Mineworkers and say, "You have a system which produces an 80 per cent. turnout in a ballot which has not been challenged: we are going to substitute for it one that produces a 30 per cent. or 35 per cent. turnout, and this is in the name of freedom and democracy for the individual"? I think myself that they would get a pretty dusty answer. If this matter were taken to the courts or to the members of the National Union of Mineworkers, or even to the Association of Conservative Trade Unionists, I do not believe that the response would be very friendly. It seems to me that this is the wrong way to go about it. I believe that now, at last, the Government— and I think it was overdue that they did— have got the right answer. I hope the Committee will prefer it to this amendment.
10.55 p.m.
Lord Harris of Greenwich: I understand the position of the Opposition as far as this amendment is concerned. I think that their position is entirely logical. They are opposed to this Bill in every aspect, as they were opposed to the last trade union Bill in every aspect, and the one before that as well. Therefore their position, if I may say so, can be described as very clearly defined indeed.
But what of the Government? They say that proper elections must take place for trade union executives, and they have brought this Bill forward. Indeed, it has been made absolutely clear that the Government had, in their view, a mandate for it. I think, if I may say so, that is clearly true. But they have, in introducing the Bill, proposed a system of voting which is almost by definition going to fail. They have in fact— it has been made quite clear— decided to oppose the one system of voting (by secret postal ballot, sent to a trade union member's home address) which can be guaranteed to work effectively.
This, as has been pointed out, was the system of voting which was introduced by the Electrical Trades Union after the great ballot-rigging scandal of 1961. They now have a computerised central list of members and they do not find it an intolerable burden, as has been made clear, and all ballot papers are issued on the basis of that central, national list.
It is worth referring, in the context of the Electrical Trades Union, to the views of Mr. Frank Chapple on the Government's proposals, for a very obvious reason. With the greatest personal courage, it has to be said, together with Mr. Cannon and Mr. Byrne, he exposed the Communist Party's conspiracy against his own trade union. He knows, on the basis of personal experience, how the ballot riggers operate, and he has said the following about the Government's proposals which we are considering at the moment. We have been reminded of the remark by the noble Lord, Lord
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Beloff. Perhaps I may summarise it as follows:
"Workplace ballots are too easily open to intimidation of the voters, to improper use of discarded ballot papers, to phoney returns and a variety of other illicit behaviour.'
That is the view of a trade union leader who has had most direct experience of illicit behaviour in trade union elections in this country.
What is the Government's answer to that and to the concern which has been expressed by many Conservative Members of another place to Conservative trade unionists and to members of my own party? They have, I think, given two answers and we have heard some suggestion of this in the speech we have just listened to from the noble Lord, Lord Maude of Stratford-upon-Avon.
First, it is said that it would be far too complicated, far too difficult. But the electricians have succeeded in creating just this computerised national list which makes it possible to hold free and honest trade union elections. I find it extremely difficult to understand why, if this can be done in one major trade union in this country, it is quite impossible for it to be done in the remainder of the trade union movement.
Of course, the electricians' union is undoubtedly an efficient one; it is an efficiently administered organisation. But why should trade union members put up with possible malpractice so far as union elections are concerned, simply on the grounds that their own unions are not as efficiently organised as the electricians' union?
Secondly, it is said that workplace ballots sometimes produce higher turnouts. The noble Lord, Lord Maude, said that just a few moments ago. I would immediately concede that in the case of Mr. Scargill, on the basis of the majority he had, he was undoubtedly honestly elected. It would be an absurdity to say that every trade union election is subject to malpractices of this kind. It would be a grotesque overstatement and I do not suggest it for a moment.
But what of the general secretaryship of the same trade union, where it was known there was going to be a much more finely balanced result than was the case when Mr. Scargill stood for election? As we have heard from the noble Lord, Lord Marsh, a few moments ago, there have been the most direct allegations made by the opponent of Mr. Heath field, Mr. John Walsh, and we have been reminded of the character of the allegations: why a polling station in one case closed suspiciously early; why the figures for unused ballot papers— an essential part of the procedure— have not been issued; and why there was an abnormally high percentage of spoiled ballot papers.
I do not for a moment suggest today that I have clear evidence that there has been gross malpractice in the case of that election. That would be an overstatement. But I would say just this. The sort of practices described in this election, and in other trade union elections, are exactly the kind of malpractices which were alleged year after year in the case of the electrical trades union and were vehemently denied at the time. It took five years of dedicated work by a small group of trade unionists, who were prepared to brave the most tremendous pressure that was brought upon them, to demonstrate that all those allegations were entirely justified.

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I do not want to go through a whole list of other trade union elections. The point was made by the noble Lord, Lord Marsh, about the Transport and General Workers' Union general secretary's election which is taking place at the moment. Again, serious allegations are being made. All I would say to the House is this. Here are two of the key jobs in the British trade union movement, the general secretaryship of the National Union of Mineworkers and the general secretaryship of the Transport and General Workers' Union. They are two of the key figures on the General Council of the Trades Union Congress, and in both cases serious allegations have been made by trade unionists— not by the media, but by members of their own trade unions— that malpractices have taken place. I could give a number of other examples. I shall not go through the Civil and Public Servants where, again, suggestions of this character have been made.
What is the Government's answer to charges of this character? What do they say should be done, all this being so? We are told that the members concerned can go to the courts, and. of course, they can. But what we are asking individual trade unionists to do, if we reject the approach which is contained in this amendment, is to be a series of village Hampdens, as the Sunday Times put it: to take the whole onus and responsibility on their own shoulders, to go to the courts as individuals against the entire power of some of the largest trade unions in this country.
What about intimidation, which we all know perfectly well takes place in a number of trade unions? What sort of pressure can be brought to bear on honourable men of this character when they suspect that grossly improper practices are taking place? In 1961, when these allegations were being made, I was the personal assistant to the leader of the Labour Party, Mr. Gaitskell, and I remember at that time very clearly the degree of pressure that was brought upon some of the plaintiffs in that action to withdraw their case, because of the damage it was doing to the reputation of the British trade union movement. This pressure did not come from ballot riggers. It came from people who were genuinely worried about the damage that publicity of this sort was doing to the reputation of the trade union movement in this country. All I would say to the Committee is that it should recognise the kind of problems which will be faced in the future by men and women who believe that in their own trade unions improper practices of these kinds are taking place.
Finally, it is necessary for the Committee to recognise the possible scale of actions of this kind if members of trade unions are forced into the sort of position that Mr. Byrne, Mr. Chapple and Mr. Cannon were in 1961. I shall quote very briefly from the publication The ETU Trial which was presented by Mr. C. H. Rolph, with a preface by Mr. John Freeman, after this case had come to trial and the judge had formed a view and given his judgment. This demonstrates the kind of problem that faces individual members of trade unions if they are considering litigation of this kind. I am summarising basically the final speech made by the noble and learned Lord, Lord
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Gardiner, who appeared as counsel for the plaintiffs in that case.
"After a visit to a Judge in Chambers"—
he said—
the Defence was delivered, consisting in the main of a general denial. Obviously everything depended on 'discovery' (i.e. on the production by the Defendants of the very evidence that would convict them). The Defendants' solicitors had shown the Plaintiffs' solicitors a 'vast stack' of about 30,000 documents and said 'look at anything you like'. And Mr. Haxell"—
who was the principal defendant in the case—
"had told them that the required documents, contained in parcels or envelopes as dispatched from the branches of the ETU, were 'estimated to number hundreds of thousands'. Informal discovery went on, my Lord, right up to the eve of trial, and the problem for the Plaintiffs was to know what on earth to look at and what on earth to ask for… This has been an exceptionally difficult and messy case. A hundred and fifty-four witnesses have been called. Three hundred and two exhibits have been put in— of which even now I have no Copies of a hundred and twenty-nine".
That is the kind of problem which faces honest men in the trade union movement when they want to challenge a trade union election. I wonder how many there are in the British trade union movement.
Lord Graham of Edmonton: I rise to oppose the amendment. I do not wish to use flowery language, or to use such words as "smear" or "innuendo". Nor do I wish to pray in aid what has happened in any place that I have read about in newspapers. I wish to use the simple credential that I have been a trade unionist all my life. I continue to be a member of a trade union. Many of the trade unions which have been referred to by name are the large trade unions which have attracted some publicity over these matters throughout the years. I am a member of a small union, the National Association of Co-operative Officials. My first trade union was the National Union of Distributive and Allied Workers, subsequently the Union of Shop, Distributive and Allied Workers, with which I still have an association. I confess that I am not so activist a trade unionist as I should like to be; but even my limited experience is probably greater than that of some of those who speak with great eloquence about what is wrong with our trade union movement. I do not say that with disrespect.
The amendment which has been tabled and to which the noble Lord, Lord Beloff, has spoken, has one simple proposition: no "ifs" or "buts-, no norms, no exceptions. Such elections shall be held by postal ballot. The noble Lord, Lord Beloff, went to great pains in moving this amendment to stress— I took it down— that elections would be the norm. He went on to point out that there would be exceptions. There are no exceptions here. The argument we have is that contained in his amendment and in the Minister's amendment. It centres on whether or not we are going to say to the whole of the trade union movement, in one fell swoop, "In future, there will be only one way in which you may continue to run your elections".
A great many safeguards have already been written into the Bill, and much has been said about the subject of secrecy, intimidation, et cetera. Account has already been taken of many of those aspects, and the point I wish to deal with now concerns the inflexibility and inconsistency of what has been said by the

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Government and by the Government's supporters hitherto.
I should like to plead in aid a letter sent to the Minister by a body named the Council of Managerial, Professional and Allied Staffs. Its membership comprises the British Association of Colliery Management, the British Air Line Pilots' Association (a union which has won some notoriety because one of its former activists is the present Secretary of State for Trade and Industry), the Engineers' and Managers' Association, the Hospital Consultants and Specialists Association, the Health Visitors' Association, and the National Association of Co-operative Officials— my own organisation. They wrote to the Secretary of State on 9th December as follows:
"Like the Trades Union Congress to which all of us are affiliates, we believe the Bill to be misconceived. Nevertheless, it is clearly going to be enacted and so it should be amended where it is clearly defective. A major fault in the Bill in our opinion is the intention to lay down a single method of election of members to trade union principal executive committees. We believe it is dangerous for Government to seek to determine the internal arrangements of voluntary bodies to this extent. The proposed method is itself open to serious objection in that in any circumstances it will make principal executive committees more remote from their memberships and certainly less accountable. We say this while being entirely confident that the internal democratic procedures of our own associations, in which secret ballots play a significant part, will stand scrutiny by anyone".
The point I want to make is that there is no method under the sun that can be watertight. Quite frankly, the postal ballot has a great deal of merit, but, as has been pointed out, it has also some demerits. Your Lordships will have to consider which is preferable.
When dealing with this matter in paragraph 18 of their Green Paper, the Government said:
"The Government is conscious that any legislation must take into account the wide variety and complexity of existing electoral arrangements".
What on earth is wrong with that? I regret to say that noble Lords opposite who support this amendment will, if they press it, continue to stay in line with much of what this Government have done hitherto in taking the view that there is only one way of dealing with the situation.
My limited experience of the trade union movement tells me that there is a great deal that needs to be put right. The trade union movement collectively is aware of that and is taking its own steps. But what this amendment seeks to achieve is absolutely colossal and it would, in my view, be counter-productive. Surely our purpose is to produce legislation that is workable; legislation that is credible and which has at least a chance of getting off the ground. I believe this amendment would fail in those respects, and that is why I shall oppose it.
11.14 p.m.
Earl De La Warr: I should like particularly to thank the noble Lord, Lord Graham of Edmonton, for his very thoughtful speech. We know very well that we are hearing from a trade unionist of great respectability and great expertise. We on this side of the Committee realise that many of us have not had the experiences which the noble Lord and some of his colleagues have had of trade union ballots.
Nevertheless, I should now like to refer, as I had intended to do all along, to the point first made by my
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noble friend Lord Maude, when he declared his lack of agreement with this amendment. The first point he took up was the difficulty of getting members on the register. You do not have to be a trade unionist to know about getting people on to registers these days. Twenty years ago it must have been very difficult, indeed for Mr. Chapple, using a computer which, I should think, might have been half the size of your Lordships' House, to get all his members on to the register. Today, we all know perfectly well that we can do it on a computer not much bigger than the Dispatch Box, and it is a totally new and advanced technique.
I have said that I know nothing about getting trade unionists on to computers, but I think one might as well speak from one's experience. I know what it was like getting 1.25 million television subscribers on to a computer. It was jolly difficult; and, my goodness, did we not make some mistakes over the first two years, did not the customers squawk, and did we not get their accounts wrong? Of course we did, but as the years have gone on it has ceased to be a miracle, it has ceased even to be a challenge; it has become the norm to use these modern techniques to register one's subscribers, one's members or whatever it may be.
Let me go on from that very mildly technical point to suggest to your Lordships that when the noble Lord, Lord Graham, says there is just this one thing in this amendment, there are more points. There is reference to the latest available register of members, and that is what I want to centre on, because I have felt for years that it was as monstrous as it was ridiculous that huge unions should take all the power that they enjoy and in many cases not feel it was necessary, or perhaps not feel it desirable, to know the names and addresses of their members. I remember that in my own company, when there were local problems, branch secretaries used to come to my general managers and say, "Please do you mind telling us the names of our members?" I thought this was crazy, but it happened again and again.
So arising out of the postal ballot is the need to do something that surely is in itself an absolute essential for great power bodies: to know who their members are and where they live, even if it might mean that a great union were to find it suddenly finished up with 250.000 fewer members than it had quoted, and its card vote was thereby reduced. So in supporting this amendment with a quiet passion I want to draw attention to the fundamental mechanics that lie behind it implementation.
To move on, I spent some time last week talking to a man who had for many years been an industrial wrecker, and had worked for the Socialist Workers' Party. He has now, I suppose, in common parlance, turned gamekeeper. He has become an industrial consultant. He took me through all the things that he, as a wrecker, had done to manipulate elections. Many of them have already been mentioned, so I do not want to dwell upon them. There were the activists who collected tilled-in forms and, as he did, put hundreds of them down the lavatory, who ensured that known moderates did not always receive their papers. As to collecting— and this is one that we know well: discarded and unused ballot papers were filled in; papers were sent late. None of this is new to us, but it

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was, for me, an experience to hear it coming from somebody who had actually done it. I can see nothing in this legislation that is going to stop abuses of this kind.
I think it would be quite improper to go into amendments that are yet to come to see whether there is anything in them which helps fill these gaps. That we will do when the time comes. The fact of the matter is this. When there are any intermediaries in a ballot, and those intermediaries— and I do not say that this is always the case— are people who are highly trained in subversion (and there are many of them), then the manipulations cannot be stopped other than by postal means. So my conclusion is that this Government, with their magnificent intentions, are missing a golden opportunity for which masses of people in the country and many, many trade unionists will be slow to forgive them. That is why I support this amendment so strongly.
Lord Campbell of Alloway: I oppose this amendment, the effect of which is to proscribe all workplace ballots and foist mandatory postal ballots upon the trade unions. It was wholly disingenuous of my noble friend Lord Belloff to suggest that this was— I took it down— "just a question of postal ballots being the norm, departures to be justified". If you look at the amendment, it is mandatory. It is "shall", without qualification. It was wholly disingenuous. I would ask this. Is this amendment truly necessary, in the light of the general encouragement given by the Government set of amendments, to resort to postal ballots? Noble friends on these Benches behind me may, of course, think otherwise. But can it be appropriate, I would ask your Lordships' Committee and my noble friends with me in these Benches in particular, that your Lordships' Committee should endorse what is nothing other than a woeful declaration of fundamental distrust in the trade union movement as a whole?
Noble Lords: Oh!
Lord Campbell of Alloway: That is what it comes to. It is a fundamental declaration of mistrust that the trade union movement is able to order the management of its own internal affairs on balloting. And would your Lordships not also consider that the backlash of justifiable resentment to such an over-interventionist approach would not only sterilise the effect of this amendment but could also work a very great mischief? And on the question of workability, is this amendment truly workable?
Noble Lords: Yes!
Lord Campbell of Alloway: Is it generally workable in that sense by all trade unionists today? Noble Lords say, yes, but we have heard from many of those experienced in the running of trades unions that, without the central register, this simply could not be worked. How could it, if one looks at the matter objectively? Some unions are able to work it, but the question is, according to this amendment, could it be applied generally to all trades unions today and work? I suggest that the answer is certainly, no.
The noble Lord, Lord Houghton of Sowerby— does my noble friend wish to speak?
Lord Mottistone: I am just suggesting that my noble friend does not know about the latest computers.
Lord Campbell of Alloway: I am grateful to my noble friend. Computers or not— and I do know a little bit about them— is there really any certain advantage to be gained? One has to look at this. If the answer to any one of these single questions is, no— and I suggest that the answer to all of these questions is, no— then as of today this amendment cannot but serve as a bludgeon. No political party in office, or one with any serious pretentions to office, could afford to embark upon such a course.
Has due account been taken of the fact that very few unions today could conduct full postal ballots, having regard to the absence of these central records of addresses and the state of the register? Has any thought been given to the unions which have a predominantly itinerant membership? Has due account been taken of the administrative and financial burdens? Unless, as is apparent from the reported cases, there is independent supervision at all stages, postal ballots are still wide open to malpractice and manipulation. Until such an independent authority is set up, and until the registers are not only properly kept but kept up to date with computers, the proposals in this amendment are plainly premature.
Furthermore, according to such information as is available, on average it would appear today that there is a far higher turn-out for the work-place ballots than for postal ballots— a fact apparently recognised by my noble friend Lord Beloff, but in fact—
Lord Beloff: Will the noble Lord give way? I did not recognise that fact. I do not believe it to be a fact.
Lord Campbell of Alloway: Let Hansard speak for itself. Certainly the reference to Soviet Union turnouts could surely not have made any valuable contribution to this matter.
This amendment lies in irreconcilable conflict with the spirit of the Bill in all its parts, which leaves a measure of self-regulation to trades unions; it conflicts with the concept of flexibility which permeates the Bill; and it lies in fundamental conflict with the set of Government amendments which are designed to encourage but not command the postal ballots.
In conclusion, in this irreconcilable conflict, ought we not to spread some bales of straw in the street of deliberation to try to muffle the drums of dissension, so that we may tread perhaps a little warily and avoid the man-trap of the over-interventionist approach, which so often— "Rubbish", I hear my noble friend say. Fair enough. Any noble Lord is entitled to his view; but I would seriously suggest that an over-interventionist approach leads to confrontation and that this savours of an over-interventionist approach.
But there is a middle way between the irreconcilables. It is perfectly plain that one day everything will have to be put on computers. That time has not yet arrived. I suggest it would be sensible to use the material in this debate so that thought might be given

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as to how the records could be better kept. But at this time and as we debate this tonight this amendment is plainly premature and wholly unworkable.
11.31 p.m.
The Earl of Gowrie: I must congratulate most warmly my noble friend Lord Beloff, who moved this amendment, on the elegant and persuasive way in which he argued the case for postal ballots.
I want to say in terms that there is no difference between the noble Lord and the Government on the value and desirability of postal ballots in union elections. As the Committee will have seen from the amendments we ourselves have put down on this subject, and as my noble friend Lord Maude of Stratford-upon-Avon reminded us in a brief and equally elegant speech, the supporters of this amendment are in a very real sense pushing at an open door. The Government wish to do everything practicable to ensure the spread of postal balloting.
Like the noble Baroness, Lady Cox, who I am sorry cannot be here today, my noble friend Lord Beloff and other supporters of this amendment, we believe that postal ballots are the best safeguard against intimidation and malpractice. Like them, we believe that wherever possible the union member should be allowed to cast his vote away from the distractions and pressures of the workplace. The amendments I shall be moving later in our proceedings are designed specifically to provide for postal voting in situations where intimidation is feared or malpractice has been proved. They are also designed to act as a powerful incentive for unions at large to move to a system of postal ballots. That is an objective we share with the noble Lords who have put forward this amendment.
Where we differ in terms of this amendment is, that all elections required by Part I must be conducted by post. May I say to the noble and learned Lord, Lord Denning, that we believe in postal ballots and in the workplace ballots. We do not, however, believe that it would he right to require unions to conduct elections by post in all circumstances.
With the permission of the Committee, I should like in just a few moments— and I am aware of the lateness of the hour— to turn to the detail of those amendments because I believe that they are very pertinent. However, before I do so, can I remind the Committee of the basic problems the legislation is designed to tackle. At the moment most union elections are conducted, not at the workplace, but by a system of voting at branch meetings. It is not the case that we are seeking to reform a system of workplace balloting. Most unions have not yet progressed as far as workplace balloting. Many unions do not have any form of individual ballot at all; in some, votes are taken by a show of hands with no attempt to secure secrecy.
Furthermore, most unions still operate voting systems which effectively deny the opportunity to vote to everyone except the dedicated activist who is prepared to sit through hours of ideological debates late at night— I sometimes know how they feel!—in a union office miles from any member's place of work before a vote is taken. It is this sort of voting system
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which produces the polls of 2 per cent. and even less in elections in ASTMS, for example. Of course the pitiful number of votes actually cast is usually masked by the use of the block vote. If 10 members actually vote, however small the majority, the result may be recorded in hundreds or even thousands of votes. As if by magic these ghostly forms of absent members tramp through an imaginary division lobby, no one out of step and everyone with but one thought in mind. With that sleight of hand, the actual result of the voting is distorted and the absence of any genuine test concealed. All this type of abuse will be swept away by the Bill.
But the Bill also has a positive purpose. It wants to bring union members with it. It wants to create the conditions in which there will be far greater voluntary participation in, and concern about, union elections. I want to make this point as clearly and as strongly as I can. I believe that the most urgent need and the most immediate and important task for this legislation is to raise the level of participation in union elections. Union leaders will be brought under democratic control only if more union members are able and willing to exercise their right to vote. It is vital that we do not overlook that simple point. Of course, it is important to guard against intimidation and malpractice, and that is what our amendments are designed to do. But it is the sheer difficulty and inconvenience of casting a vote which keeps the vast majority of union members away from the polls at the present time, not usually intimidation.
This Bill will establish the basic democratic principles of voting in secret; voting by the use of a ballot paper; and voting without interference or constraint. It provides for one man one vote. It ensures that every union member can vote without direct cost to himself, and in a way which is convenient to him. These are simple and minimum requirements, and the really remarkable thing, it seems to me. is that this Bill will guarantee them for the first time. That is a measure of the transformation the Bill will require trade unions to make in their electoral arrangements. That is precisely why noble Lords opposite, whose party is financed by the union high command, oppose it. In practical terms, the Bill means that unions are compelled to move from branch meetings, the antiquated way of electing the union executive, to individual postal or (and that is the important word) workplace ballots.
The issue between my noble friend Lord Beloff and myself is simply this. Are postal ballots or workplace ballots more likely to maximise the number of votes cast? Should the one, so to say, cancel out the other? I believe that even leaving aside the perhaps rather special case of the miners' union, with its turnout of 80 per cent. or more in pithead ballots— my noble friend Lord Maude talked about that— the evidence at present rather tends to favour the workplace ballot. For instance, even in the recent CPSA election the turnout was over 30 per cent. That is substantially higher than the average turnout in postal ballots, which rarely, if ever, exceeds 30 per cent., although I believe that it will in time. In the case of one major union, for the presidential election at the Royal College of Nursing in 1982 the turnout was just 11 per cent.

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Surely, the important thing is the Bill's move away from the branch meeting to a mixed economy, so to say, of the workplace and the postal ballot. But in spite of the emphasis that I am giving to this, it is not the principal case that I seek to argue in connection with the amendment of my noble friend Lord Beloff. We are not concerned with the merits of the two systems in the abstract. We are concerned, so to say, with a dynamic rather than a static situation; a situation in which unions are now being required by law to make a fundamental change in their electoral procedures, where they are being required to change from the present discredited system of branch-based voting to a more democratic system.
My noble friend's amendment would provide that all elections required by Part I must be conducted by post and that the distribution, return and counting of the voting papers must be carried out by an independent body. There must. it seems to me, be a real risk that this legislation could become a dead letter if the leaders of the trades unions (who, unlike their members, are already implacably opposed to it) could turn to their members and claim, however falsely, that it simply was not possible for them to do all the complicated things that the legislation required— compiling a central list of names and addresses, and the rest. The truth is that the leaders will do everything they can to frustrate this legislation and frustrate their members' evident wish to make use of the rights that it provides. I say, in all seriousness, that we have a duty not to furnish them with the arguments they are seeking. We must not give them an easy target.
The opponents of this legislation, and of greater democracy in trade unions, have a vested interest in proving that industrial relations cannot be reformed by law and that trade union legislation is bound to be ineffective. So far, over five years, we have proved them wrong. And one reason we have proved them wrong is that none of the three Bills we put before Parliament since 1979 has been too prescriptive.We have not created new institutions which the trade unions can boycott. I believe that that is a risk my noble friend's amendment runs. We have avoided remedies and procedures which employers and union members are unwilling to use. We have not purported overnight to abolish practices which we know can be eliminated only over time. That is why our legislation has worked and that is why it is disliked so much by a certain kind of trade union leader. In their eyes, our legislation has not lived up to the received wisdom of the 1970s. So far it has confounded the expectations of the so-called voluntarists, who glibly argue that the law has no place in industrial relations, except, of course, to reinforce the power of union leaders. And to those who doubt that the 1980 and 1982 Acts have worked, I would say, "Look at the decline of the closed shop; ask the National Graphical Association, the Post Office Engineering Union and the National Union of Journalists whether the law is impotent". In each case, those unions have been forced to call off unlawful industrial action as a direct result of recourse to the law. That is a vindication of what we have called the step-by-step approach to industrial relations reform that we have followed since 1979 and which has been
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consistently supported in your Lordships' House and in another place.
My noble friend wishes to take a giant leap. I sympathise with his aims, but I want to prepare the ground for them. What would be the reaction of those trade union leaders to this amendment if it were to reach the statute book? In the first place, I believe they would welcome the notion of an "independent body" responsible for
"the surveillance of the distribution, return and counting of voting papers".
Clearly, no existing organisation could possibly take this on. It would be well beyond the capacity of, for example, the Electoral Reform Society, which does no more than count the votes sent to it by a few trade unions. It does not send out voting papers, keep registers of voters, or supervise in any way the actual process of voting. To do all those things, and to do them for 400 trade unions, is possible, but it would be a formidable task. Therefore, we are talking of a new body, created by the Government, with powers to compel and to investigate.
That is the kind of body trade unions leaders know and understand. There is the focus for their opposition. There is the external, Government-created organisation to which they can say, "No". It would be so much easier than saying, "No" to their own members: and it would be so much easier to mobilise opposition within the trade unions themselves if the legislation had an interfering, bureaucratic face and a nose to be bloodied by an ostentatious campaign of non-co-operation.
In short, this amendment would give the trade unions the very opportunity that we have denied them since 1979— the opportunity to convince their members that what we are asking of them is excessive and unreasonable. It would take us straight back to the situation of 1971 when trade unions were able to persuade their members to boycott an entire Act of Parliament— in my judgment, a wholly reasonable one— and all the institutions created under it.
Therefore, I have no doubt that the trade union leaders who are so bitterly opposed to this legislation would prefer the approach of this amendment to the approach that we have taken in the Bill as a whole. They would far rather take on some quango, whatever its powers, than to seek to deny their members a right to a postal vote as the Government are proposing in their amendment. There can be no justification for any trade union refusing a postal vote in an election to any of its members who ask for one. We do not see why a union member should be required to apply for a postal vote again before each election, and I have an amendment to that effect later.
Trade unions will not be able to use the excuse that they do not know their members' addresses or that they lack the administrative capacity to discover their addresses. This amendment will mean that any union member whose union does not yet operate a fully postal ballot will be able to secure a postal vote as of right. It is not the Bill's only safeguard against intimidation, as I shall also be moving an amendment to make it explicitly unlawful for a union or its member or officials to interfere in any way with the right to vote. And there are other specific safeguards

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for secrecy and for entitlement to vote already in the Bill.
Along with the noble Lord, Lord Marsh, we recognise that a right to an individual postal vote is not enough by itself. That is why I shall also be moving an amendment to Clause 3 to give the High Court a discretionary power, on complaint, to order a union to hold a fully postal ballot if a workplace ballot has failed to meet the democratic tests set down in this Bill. This means that if voting takes place at the workplace but the union fails to make proper provision for secrecy or fails to guarantee a free and fair opportunity to vote, or fails in some other way to protect democratic rights, the High Court will be able to say, "Enough is enough: a workplace ballot is clearly not satisfactory in this case: hold a postal ballot". In other words, trade unions will know that if they operate anything less than a fully postal ballot they will need to be doubly sure that their members can vote freely and effectively. Let me say to the noble Lord, Lord Harris of Greenwich, regarding the issue of intimidation, that if you want freedom under the law, you have sometimes to stand up to it. I have every confidence that union members will and do.
I have spoken at some length on this issue because it is a very important one and I know the deep feelings that it arouses on all sides of the Committee. I hope that I have said enough to make clear how much we share the objective of my noble friend and others who have put their name to his amendment. The difference between us is one of timing and method, not of purpose. But the issue of timing in this region of human life is a critical one.
The amendments that I shall be moving to this clause and to Clause 3 will I believe be a powerful incentive to the general use of postal ballots as well as providing further specific protection against intimidation or malpractice. I hope therefore in the light of what I have said that my noble friend will not press his amendment, because I have to say that, after the most careful consideration, the Government have concluded that it would not be wise at this time to be quite as prescriptive or to go quite so far as he proposes.
Lord Beloff: Before I answer the eloquent and persuasive speech of the noble Earl, I should like to reply to one serious point which was made by the noble Lord, Lord McCarthy, the noble Lord, Lord Graham, and I think one or two other noble Lords regarding the mandatory drafting of this amendment. I should like to make it plain that this is not inconsistent with the views which I earlier expressed about other forms of voting. It would be extremely difficult for Back-Bench Peers, without the resources which the Government have, to draft the kind of elaborate amendment expressing the kind of exceptions that might be made, the delays that might be necessary in order to allow the compilation of registers, and the various other practical points that rightly arise. That seems to me to be a matter for government.
The point of this amendment was to try to persuade the Government to say that they would in fact come back with a more elaborate amendment making such exceptions as might be thought proper to this
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operation, delaying it perhaps, and so forth. It was only for that reason that we thought the Committee would prefer to be confronted with something quite simple and quite straightforward, upon which I think we have conducted a useful and valuable debate.
However, I am afraid that I am unable to be persuaded by the remarks of the noble Earl to withdraw the amendment, because it does not seem to me that he has gone far enough to assure those of us who hold the views which my noble friends and I do, that something of this kind will be produced at a later stage. The new argument, or relatively new argument, which he put forward with great eloquence, was that, in order to make the amendment ultimately effective, we would need an outside independent body to supervise these procedures. When it comes to the amendments of the noble Earl himself— to the Government amendments— I think that many of us would be inclined to suggest that their procedures would also require some outside monitoring, otherwise, as has been said, the burden on both individual unionists and the courts will he too great. Therefore, I do not think that the argument about requiring a new quango, if one wishes to use that word, is an argument which only holds in respect of the amendment.
I would have been more persuaded by the argument for a step at a time; for the leaders of those trade unions, other than those who are asking for this amendment, coming to some kind of agreement and acceptance, if there had been some indication in the course of this evening, or indeed earlier, from those who claim to be the spokesmen of the unions, that, though they did not like this particular device, they were generally with the Government in wishing to see progress from a branch to workplace ballot. But we have had no indication of any friendliness towards any aspect of this Bill from any speaker from the Opposition Benches, and in that I think they probably represent those on their side of the Committee who have not spoken.
There is a real division of principle, and in spite of what my noble friend Lord Maude said I have been fortified by the request from the Association of Conservative Trade Unionists to divide the Committee on this amendment in order to make their position clear. Therefore, I am afraid that I am obliged to proceed with the amendment.
11.53 p.m.
On Question, Whether the said amendment (No. 21) shall be agreed to?
Their Lordships divided: Contents, 85: Not-Contents, 65.

DIVISION NO. 4

CONTENTS

Airedale, L.

Brougham and Vaux, L.

Airey of Abingdon, B.

Broxbourne, L.

Amherst, E.

Carnegy of Lour, B.

Attlee, E.

Cottesloe, L.

Aylestone, L.

Craigmyle, L.

Bauer, L.

Craigton, L.

Beloff, L. (Teller)

Crathorne, L.

Boardman, L.

Croft, L.

Brabazon of Tara, L.

Cromartie, E.

283

Dacre of Glanton, L.

Mottistone, L.

Davidson, V.

Mowbray and Stourton, L.

De La Warr, E. (Teller)

De L'Isle, V.

Norfolk, D.

Denning, L.

Onslow, E.

Dulverton, L.

Orr-Ewing, L.

Elles, B.

Pender, L.

Evans of Claughton, L.

Perry of Walton, L.

Faithfull, B.

Perth, E.

Gardner of Parkes, B.

Portland, D.

Gibson-Watt, L.

Quinton, L.

Gladwyn, L.

Reigate, L.

Glanusk, L.

Renton, L.

Greenway, L.

Renwick, L.

Gridley, L.

Roberthall, L.

Halsbury, E.

Rochester, L.

Hankey, L.

Rodney, L. St.

Hanworth, V.

Davids, V.

Harris of Greenwich, L.

Saltoun, Ly.

Hooson, L.

Savile, L.

Hornsby-Smith, B.

Seear, B.

Houghton of Sowerby, L.

Sherfield, L.

Howard of Henderskelf, L.

Sidmouth, V.

Howie of Troon, L.

Stamp, L.

Hylton-Foster, B.

Swarm, L.

Kagan, L.

Taylor of Gryfe, L.

Kilmarnock, L.

Thomas of Swynnerton, L.

Kinnaird, L.

Lauderdale, E,

Thorneycroft, L.

Lawrence, L.

Tordoff, L.

McAlpine of West Green, L.

Tranmire, L.

Vaizey, L.

Mackie of Benshie, L.

Vickers, B.

Marsh, L.

Winstanley, L.

Monson, L.

Wise, L.

NOT-CONTENTS

Avon, E.

John Mackie, L.

Bellwin, L.

Long, V.

Belstead, L.

Lucas of Chilworth, L.

Bessborough, E.

Lyell, L.

Bruce-Gardyne, L.

McCarthy, L.

Caithness, E.

McIntosh of Haringey, L.

Campbell of Alloway, L.

MacLehose of Beech, L.

Carmichael of Kelvingrove, L.

Marshall of Leeds, L

Chelwood, L.

Maude of Stratford-upon-Avon, L.

Cledwyn of Penrhos, L.

Molson, L.

Cockfield, L.

Mulley, L.

Coleraine, L.

Nicol, B.

Collison, L.

Norwich, Bp.

Colwyn, L.

Ponsonby of Shulbrede, L.

Cork and Orrery, E.

Rochdale, V.

Cranbrook, E.

Shackleton, L.

Dean of Beswick, L.

Sharpies, B.

Denham, L. [Teller]

Skelmersdale, L.

Dilhorne, V.

Stewart of Alvechurch, B.

Eccles, V.

Stewart of Fulham, L.

Elliot of Harwood, B.

Stoddart of Swindon, L.

Elton, L.

Swinton, E.

Forester, L.

Taylor of Blackburn, L.

Glenarthur, L.

Trefgarne, L.

Gowrie, E.

Trumpington, B.

Graham of Edmonton, L.

Ullswater, V.

Gray of Contin, L.

Underhill, L.

284

Hailsham of Saint Marylebone, L.

Vaux of Harrowden, L.

Wedderburn of Charlton, L.

Hanson, L.

Henderson of Brompton, L.

Westbury, L.

White, B.

Hives, L.

Whitelaw, V.

Home of the Hirsel. L.

Wynford, L.

Resolved in the affirmative, and amendment agreed to accordingly.
12 midnight
Lord Denham: I think it is probably generally agreed that we should end the Committee stage for today now. I therefore beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at one minute past midnight.