§ 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.175
§ 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 176 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 177 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 178 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 179 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.
180 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 ensurethat 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 181 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 182 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, 167.184
|DIVISION NO. 1|
|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.]|
|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.|
|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.|
|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.|
|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.|
|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 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—
§ 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 185 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 186 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 188 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 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".
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 190 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 191 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, 192 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 193 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 194 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 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.195
§ 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
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 197 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 198 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 Hansard, 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.
§ 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 199 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 200 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 201 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 202 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—
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 800 203 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 204 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.
§ 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 205 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.
206 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 207 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 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 208 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 209 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 210 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 211 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, 112.212
|DIVISION NO. 2|
|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.|
|Kilmarnock, L.||Winstanley, L.|
|Kirkhill, L.||Young of Dartington, L.|
|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.|
|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.|
|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.|
|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 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:
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 215 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 McCarthy
me 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 216 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. 217 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.
§ 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 unionUnder 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.
219 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 220 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, 42.221
|DIVISION NO. 3|
|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.|
|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.|
|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.|
|Norwich, Bp.||Winstanley, L.|
|Onslow, E.||Wise, L.|
|Orkney, E.||Wynford, L.|
|Pender, L.||Young of Dartington, L.|
|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.]|
|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.