§ 8.47 p.m.
§ Committee stage resumed.
§ Clause 2 [Requirements to be satisfied in relation to elections]:
Lord Wedderburn of Charlton moved Amendment No. 13:
Page 3, line 2, at end insert ("and the union shall use its best endeavours to ensure that so far as is reasonably practicable an opportunity to vote is accorded to every member entitled to vote in accordance with the provisions of this section.").
§ The noble Lord said: This is not the first occasion on which it has fallen to me to move the first postprandial amendment of a somewhat technical character, but this amendment is, nevertheless, in our view, something of importance. This amendment seeks to ensure that the duty of a union in respect of the direct elections (which have now been made mandatory by the approval of Clause 1) should be to use its best endeavours—and I stress those words—to ensure that every member entitled to vote has an opportunity to vote so far as is reasonably practicable.
§ I say at once that I stress the words "best endeavours" because the provision differs from the formulation of the Government's Bill and their own amendment to that Bill in Amendment No. 22, to which we shall come later, in respect of the standard of care required on the union's part. But it may be for the convenience of your Lordships if I discuss that point in relation to Government Amendment No. 22, because I apprehend that the major issue on this amendment is not that standard of care. On the contrary, the amendment is to attempt a solution to something which bothered the Committee, and especially the Minister of State, in another place.
§ The argument was put to the Government there that the way in which Clause 2 is now drafted means that, if a union or union official—union official, of course, because perhaps it would be better if we discussed these matters in the terms of the human beings concerned rather than these abstractions—failed to allow a member to vote who was entitled to vote, the liability of the union would appear to be absolute, or at any rate nearly absolute, because of the structure of subsections (1), (2), (3) and (4) of Clause 2.
§ Let me put the argument briefly, although I am not sure that that will do justice to it. The conditions upon which a union is permitted to divide its electorate of members into constituencies by trade, occupation, geographic area and the like: it is permitted by subsection (3)—only if the conditions of subsection (4) 237 are met. In subsection (4)(b) we find that no member of the union must be denied entitlement to vote at all elections held for the purposes of this part, otherwise than by virtue of belonging to a class mentioned in subsection (1).
That seems to mean that if the denial is improper and outside subsection (1)—which, by definition for the purpose of this debate it is—then there is a case which under Clause 3 is open to a complaint to the High Court by any member of the union. When this point was put to the Government in another place—and it is only possible to discuss this against what the Government said by way of answer to the point there—if I may quote the Minister of State, in his various replies to this point, he began on 17th January at col. 487 by saying this:
Is the honourable gentleman confusing entitlement to vote with opportunity to vote? If the argument is that an individual did not have an opportunity to vote, that would not mean he did not have an entitlement to vote.
Then at col. 488 he says:
In talking about the opportunity to vote, when one is entitled to do so one could deny someone's entitlement to vote, by, for example, so arranging the rules that someone who should be entitled to vote does not have that right.
Then he came back to the point and gave this example. This is at col. 490:
If someone who is entitled to vote is not sent a ballot paper—let us take this simple example—he is being denied not his entitlement but his opportunity. It is surely clear that he remains entitled to vote, he has not been disfranchised. He simply cannot exercise the right that he continues to hold. There is a clear distinction between entitlement to vote and opportunity to vote".
That is the foundation of the Government's case in another place. It is in order to make rather more clear this very grey area of the difference between entitlement to vote and opportunity to vote that this amendment is being moved. I say at once that of course I understand the distinction between entitlement to vote and opportunity to vote but without anything express in the Bill about opportunity to vote; the grey area between the two is very grey indeed.
The Minister of State, Mr. Gummer at col. 491 in the same debate says:
For the last time I should like to try to clear up the matter I shall give the honourable gentlemen two examples. If I an entitled to a dividend in a country that passes laws saying that the dividend cannot be remitted to this country, that does not deny me my entitlement to the dividend. It just stops me getting it. Similarly, if I am on my way to vote and someone beats me up, that does not mean that I am removed from the electoral register or that my entitlement is removed. It means that physically I cannot vote. One example is of a denial of entitlement; the other is denial of opportunity.
In fact that was not the last time that the honourable gentleman came to the matter because, in relation to Clause 8 of the Bill, as it now is, the same point arises. He said on 16th February, at col. 1150:
I am sure the honourable gentleman cannot produce an example of denying eligibility accidentally. Denial of eligibility is to say to somebody, 'Although you have rights under the Bill to vote, we shall not let you vote; you do not have a right to vote'".
Then a little later on he says:
We may disagree about it, but it remains a fact that to deny eligibility a union has to go out of its way to say it will not give a right to vote to people who have the right to vote. To deny opportunity can easily be done accidentally and it is then covered by the reasonable practicability rule.
With respect, it is not covered by the reasonable practicability rule as the Bill now stands. Indeed, although the Minister of State's examples are perhaps acceptable—and I am sure he would not be accused of being philosophical or in any way connected with the University of Oxford for taking such peculiar examples as dividends which could not reach this country from another—nevertheless it shows how far and wide he had to stretch to sustain this distinction.
§ What we are saying in this amendment and offering to the Government, with a genuine request that they reconsider this matter—and asking it to put something express in the Bill on the point—is that a union is entitled to know what its obligation is in relation to opportunity, just as it is entitled to know what its obligations are in respect of entitlement.
§ Although, as I say, there is a grey area between the two, I found, on the distinction which the Government have made, the anchor of their case through the Minister of State in another place. The point is not covered in the new Government amendment, Amendment No. 22, and I apprehend that the noble Minister will not argue that it is because, although the notion of opportunity is re-defined, the obligations of the union are still there only dealt with in terms of what is reasonably practical, which is a very different matter from that of ordinary skill and care.
§ It would be useful to spell out the union's duty at the beginning of Clause (2), as we have suggested, because we are dealing with the trade union movement. Here I come back to the reality of the matter. However much noble Lords in this place or elsewhere pass resolutions about postal ballots, direct elections and all sorts of other procedures, the trade union movement of this country has worked and will continue to work—perhaps unfortunately in some ways—on a very small number of full-time officials, a very large number of voluntary shop stewards and other helpers. They are entitled to have spelt out in simple language this distinction, if it exists, between entitlement and opportunity. As it stands, the Bill does not do so and it is on that very simple, and I hope not academic, ground that I beg to move this amendment.
The Earl of Gowrie
I am very sympathic with the noble Lord, Lord Wedderburn, when he says that this is not the first time that he has had to open the batting after dinner and engage in what he described as "postprandial amendments of a rather technical nature". I think it gives rise to a wonderful image of his noble friends hogging it back there, puffing away, while the wretched noble Lord wrestles with these arcane and difficult matters. I accept that the noble Lord has been trying to be helpful. The amendment is concerned with opportunity to vote, and in particular with protecting trade unions from the possibility of legal action for breaches of the statutory requirements in circumstances where they have used their best endeavours to prevent such breaches from occurring.
In respect of the point that he raised at the end in referring to my honourable friend Mr. Gummer, Mr. Gummer was of course absolutely right in the distinction he drew between entitlement and opportunity. It is heartening to know that the noble Lord, Lord Wedderburn, accepts the distinction, which was one that the Opposition in another place 239 altogether failed to comprehend. Of course the Bill makes clear that there is a difference between entitlement and opportunity. For example, the reference to entitlement in subsection (1) is quite separate from opportunity in subsection (6).
Returning to the rather wider issue of the amendment, I should say that, although the noble Lord, Lord Wedderburn, has chosen to place his amendment at this point in Clause (2), the question of the union's obligation to provide a convenient opportunity to vote arises, in the main, in relation to subsection (6), of the clause, as I have just said. I say this not in any sense as a criticism but merely because, as the Committee will have seen, the Government have moved their own amendments to subsection (6) which we shall come to shortly. With what I hope will be the noble Lord's and the Committee's forbearance, I intend therefore to be rather brief in my remarks on this amendment because it covers ground which I think we will want to discuss more fully later, in the light of the Government's own amendments.
The noble Lord, Lord Wedderburn, is concerned with a situation where, if I may so put it, the union is keen, so far as is reasonably practical, to accord to every member entitled to vote, an opportunity of voting in accordance with the requirements of Clause 2. Indeed, the union is not merely keen: it is using its best endeavours—though I must say that that is a phrase which I personally would not want to have to try to interpret to a court. I think I can reassure the noble Lord that this is in effect all that the Bill requires. Subsection (6)(a) of Clause 2, as proposed in the amendment that I shall be moving shortly, requires unions to make arrangements for the casting of votes which are designed to secure that every person who is entitled to vote is so far as is reasonably practicable given an opportunity to vote. That opportunity must be by post or at the workplace, but that is a rather different question. The noble Lord's amendment assumes that the union is using its best endeavours to comply with the requirements of the clause.
In substance, I see no difference between the noble Lord's proposition and that in the Government amendment. which is in turn merely a re-wording of the original proposition in the Bill. Both the noble Lord's amendment and ours make allowance for what is not reasonably practicable. Beyond that, it is clear that any union which is prepared to use its best endeavours to provide the required opportunity to vote will make arrangements for the casting of votes which are designed to secure that every person entitled to vote has an opportunity to do so. In short, the noble Lord's amendment is helpful but unnecessary. It could possibly be confusing on top of the other provisions in the clause. Accordingly, I hope that he will agree to withdraw it.
§ Lord Wedderburn of Charlton
I am grateful for the noble Earl's sympathy in so far as it related to the gastronomic aspect of our debate, but not for the rest of his remarks which would perhaps best be taken up, as he suggested, on Government Amendment No. 22. I can perhaps just say in respect of my right honourable and honourable friends in another place that they certainly accepted the distinction between 240 opportunity and entitlement (indeed, who could not?) as a conceptual matter. What they could not get the Government to see was that there was a grey area between the two which needed more definition in the Bill. I do not think that we have that. However, as the noble Earl suggests that this is a matter that the Government aim to deal with in Amendment No. 22, I shall, with respect, come back to my submission on that amendment. On this occasion, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9.3 p.m.
Lord Wedderburn of Charlton moved Amendment No. 14:
Page 3, line 3, at end insert ("such classes of members as are defined by the rules of the union, being—").
§ The noble Lord said: In moving this amendment I shall, with your Lordships' leave, and if my notes permit it, speak also to Amendments Nos. 15, 16 and 17.
§ Amendment No. 15: Page 3, line 4, leave out ("in employment") and insert ("engaged in such employment as the rules of the union prescribe and for such period as stated in the rules;").
§ Amendment No. 16: Page 3, line 5, leave out ("any subscription or contribution due to the union") and insert ("such number or amount of subscriptions or contributions due to the union as the rules of the union prescribe;").
§ Amendment No. 17: Page 3, line 12, after ("who") insert ("by virtue of the rules of the union").
§ These amendments, in our submission, involve the same central point. It can be simply put. In order to be allowed to divide the electorate of members into constituencies, the union must fulfil two basic conditions. First, under Clause 2(1)(b)all the members of the class must be excluded by the rules of the union from voting. There must be an exclusion rule for all of them. The second hurdle that the union must clear is that the class must fall—and here I am talking to subsection (2)—into one or more of the classes set out in subsection (2); that is, members who are not in employment, members who are in arrears with their subscriptions and members who are apprentices, trainees, students or new members of the union.
§ In regard to the first hurdle, it is clear that the rules must include the exclusion provision. The problem arises—all four amendments are conveniently taken together because the principle is the same—in regard to the second hurdle. The issue is: who is to decide what is meant by the definition of the class into which the excluded members must fall? For example, let me take trainees or apprentices. When a court is confronted with the arguments that the union has done what is needed and that the union has done not what is needed, how will it decide whether the union rule clears the second hurdle as well as the first? As the Bill is drafted, the court, in my submission, would apply what I might call for convenience (although it is not wholly accurate) the objective test; namely, what the court thinks the Act means. What does the court think a trainee is? What does the court think "arrears of subscription" means? What does the court think "not in employment" means?
§ The other way of approaching the matter could have been to allow the rules of the union to define what is meant by "trainee or apprentice", "in arrears of subscription" or "not in employment". It is our 241 submission—I apprehend that it is likely that the Government may resist this amendment and, if so, it will only show how the Bill is to overtake the rules of the union yet again—that the rules should decide the meaning of the word. In saying that, I wish to make clear a point that it is clear to any lawyer and, indeed, to any layman. Of course, if the Act demands that the rules talk about apprentices, then the rules must define apprentices in a way that is capable of reasonable understanding but that allows for flexibility. It does not impose the court's interpretation; it imposes the rules interpretation provided that that is a reasonably understandable and reasonable interpretation of the term.
§ The point may seem a fine one to noble Lords; but the noble and learned Lord, Lord Denning, will, I am sure, remember the case of Lee v. The Showmen's Guild in 1952, in which his great judgment showed that the construction of a rule of the union is a matter of law and cannot go outside that which the court can allow. On the other hand, within that compass the rules can have some autonomy and give a reasonable interpretation to the term. In that case it was the term "competition".
§ What makes it clear that the Government are leaving this to the court completely and not to the rules plus the court is the way in which the rules appear in the rest of the clause. This is a very important point in the practical administration of trade unions. For example, if the rules are to define the terms, the Bill says so. It says so, as the noble Earl will see, in Clause 2(1)(b), Clause 2(3)(c) and Clause 2(4), but it does not say so in Clause 2(2). Because it does not say so in Clause 2(2) but does say so in the other subsections and paragraphs that I have cited, the court would be bound to see a distinction in the approach of the Act to the terms defined by virtue of the rules in those other subsections and paragraphs and the terms that are not defined by reference to the rules in subsection (2).
§ The central point therefore runs through all four amendments. There are small points that distinguish them. I put tonight simply the central thrust that, surely, here is an area in which the Government could allow the members to define what they mean by an apprentice, or, in particular these days, what they mean by a member who is not in employment. I am quite sure that from their trade union experience my noble friends can easily give examples—indeed, I can myself—of the way in which, in one trade, not being in employment is regarded as rather a different matter, in shading and area, than in, say, the print industry, where not being in employment often acquires a rather technical meaning.
§ Really, this is no more than a plea to the Government to have another look at this and see whether the rules are not the right place to give the leading interpretation of all of these matters in subsection (2), or, if they do not accept that, to give an explanation, which so far has never been given, as to why, in Clause 2(1)(b), 2(3)(c), and 2(4), the rules govern interpretation, but in 2(2) they do not. I beg to move.
§ Lord Denning
As my noble friend has mentioned me, perhaps I may say that there are many words in 242 many statutes which have to be interpreted by the courts. There could have been in this statute a definition section which gave the meaning of all those words—apprentices, training, and so forth. But often those definitions are not useful at all. I gather the suggestion in the amendment is that the definitions should he put in the rules. I do not think it should be left to the rules to give the definitions. I believe that, without a definition clause, ordinary people and ordinary courts will be able to apply these words perfectly well, and there is no need for the amendment.
; Having listened to the noble Lord, Lord Wedderburn, speaking to this amendment, I should like to say I am glad, (a) that he has had a good supper, and (b) that he has got his definitions right as to what is an apprenticeship, as well as the different groups he is talking about.
Subsections (1) and (2) of Clause 2, to which these three amendments relate, reflect once again the Government's basic approach in this Bill. These subsections provide for one of the essential democratic requirements of any election: that is, for the basic principle of one man, one vote. But at the same time the Bill allows unions to continue to operate sensible restrictions on entitlement to vote in an election where these do not conflict with the Bill's basic democratic requirements.
In particular, subsections (1) and (2) allow certain groups of members to be excluded from all elections to the governing body if that is what the union's rules provide. The groups concerned, which are set out in subsection (2), and which the noble Lord, Lord Wedderburn, has described, are members not in employment, members who are in subscription arrears, and members who are apprentices, trainees, students or recently-joined members of the union. To define these groups, and who is to go into these groups, as the noble and learned Lord, Lord Denning, implied, is a very difficult and sensitive area, and probably one could go on always trying to define who goes into which group.
Turning now to the specific amendments, the case for Amendment No. 14, as I understand it, is that it should be up to the union to decide in its rules, first of all, whether it wishes to exclude all or any of the classes of members in subsection (2) from voting; and, secondly, if it does wish to exclude some of these groups of members from voting, how precisely it wishes to define these exclusions. I can assure the noble Lord that, on this basis, his amendment is entirely unnecessary. Again, I go back to the noble and learned Lord, Lord Denning, who said it is very difficult to define these groups.
I want to make it clear to the Committee that nothing in subsections (1) and (2) requires unions to exclude all or any of these groups from voting. The provisions are entirely permissive. Moreover, if the union does wish to exclude one or more of these classes from voting, then it is entirely up to the union to decide whether to exclude all those in the class—for example, all those who are in arrears of subscription—or only a part of that class—for 243 example, all those who are more than, say, three months in arrears. The only qualifications are that the exclusion must be operated in accordance with the union's own rules, which is precisely what Amendment No. 14 is about, and, secondly, that having decided on an excluded class of members—for example, all those more than three months in arrears—the union does not then pick and choose arbitrarily by allowing some of them to vote and others not.
Exactly the same point arises in relation to Amendment No. 16, and it may be helpful to your Lordships if I explain in a little more detail why this is so. The effect of Clause 2(1) and (2) is that a union can continue, perfectly lawfully under the Bill, to exclude from voting in elections for its executive a class of members which is, or which falls within, a class of members distinguished by the fact that they are in subscription arrears. The key words are "which falls within". The effect of these words is that in order to benefit from the exemption provided by subsection (2) a union will not be required, for example, to exclude from voting all those of its members who are in arrears of subscription to any extent. It can, for example, exclude from voting only those who owe more than a certain number or amount of subscriptions or contributions due to the union.
I now turn to Amendment No. 15, which raises a slightly different issue. Rather than allowing unions to exclude from voting those not in employment, such as unemployed members, it would permit unions to exclude from voting both members in particular kinds of employment and those who had not been employed in a particular kind of employment for a given period. If the amendment is designed to ensure that unions can continue to apportion seats on their executives as between different occupational groups which are represented in the union, then it is unnecessary. Subsections (3) and (4) of Clause 2, to which we shall shortly be turning, allow such arrangements to continue as long as those concerned are directly elected by the members of the trade group concerned.
If, however, the amendment is designed to legitimise rules in some unions which disfranchise members outside the trade, then different questions arise. In the first place, very few unions have such rules, though I understand that some do have them. The reason the Bill does not cover such arrangements is that, unlike the other categories listed in subsection (2), there seems no obvious justification for allowing unions to exclude members in particular occupations from voting in all executive elections. If people are allowed by the rules to continue as members even though they are outside the normal occupations covered by the union, and particularly if they are still required to pay a subscription, there seems no reasons why they should be denined entitlement to vote in all elections to the executive.
I hope that I have given the noble Lord enough information, and I trust that his anxieties have been allayed, and that I have given him time to define which grades go into which categories. In the light of what I have said, I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord Howie of Troon
I have a very minor difficulty as regards this matter. I refer in particular to subsection (2)(c), which lists a number of excluded classes including:apprentices, trainees or students or new members of the union".While we have little difficulty over apprentices, trainees and students, I should like to ask what exactly is a new member of the union. How new is "new"? Does "new" mean a member who has one month's membership, or one year's membership? How long does it mean?
Alternatively, am I to interpret this as referring back to Clause 2(1)(b). where it says, in addition to these groups:all the members of which are excluded by the rules of the union".In other words, the rules of the union might themselves define a new member. Where the rules of a union define a new member, I do not think that there is any difficulty. But if the rules of a union do not themselves define a new member, I wonder where we are. Should we in some way say whether a new member is a man who has three months' membership, or six months' or a year's membership or whatever? Should not a new member be actually defined in some way, or am I wrong again?
I am very grateful to the noble Lord, Lord Howie, for voicing his anxiety over what is a new member. I think that what he is worried about is a member who has recently joined. It is deliberately flexible. Union rules will be the test, unless they are manifestly absurd. It is flexible in that regard.
§ Lord Howie of Troon
Your Lordships will recall from earlier debates that I am strongly in favour of flexibility. But I am wondering what will be the case if the union rules do not say anything about new members. Who then decides when a member is new or, indeed, if he is new? I am just seeking information; I am not attempting to be awkward. I hope that the Minister will help me.
I can help the noble Lord because I think that a great deal of common sense has to go into the rules.
§ Lord Wedderburn of Charlton
If I may say so, this seems to me a very simple point which the noble Viscount has not addressed. I agreed with almost all of what he said. But my noble friend Lord Howie gave a second example involving the one that I was going to take in the three points that I want to put in reply.
First, let us take the very simple matter—which I passed over because I thought that this was such a straightforward point that the Government would naturally think again about it and I therefore dealt with all for amendments together—of the class of members who, under subsection (2)(b), are:members who are in arrears in respect of any subscription or contribution due to the union".Everybody knows—and the Government must know—that practices on arrears differ very much in different unions. In the craft unions there is at least a two-stage procedure. A member who is in arrears for a certain number of weeks will go out of compliance; 245 he will normally be unable to claim benefit. But it will take a number of other weeks before his membership lapses through arrears. Indeed, my noble friend was telling me that he believes there are some unions (and I thing so too) in which there are actually three stages. In the general unions it is more normal to find that lapse after a certain number of weeks causes lapse of membership.
It is no good appealing to common sense to give the answer in respect of any particular union as to what the phrase:in arrears in respect of any subscriptionmeans. There have been decades of practice which normally on this matterߞindeed, always on this matterߞhave been enshrined in the rules. Therefore, if you want to find out what, as a matter of common sense, in that union "in arrears" means, you must look at the rules, which, of course, have been defined in the light of custom and practice.
Secondly, it is said that this amendment is unnecessary because we can all decide it by common sense. If it were not such a festive post-dinner occasion I would call it slipshod legislation. In no way did the noble Viscount address himself to the question: why are the words "by virtue of the rules" included in some parts of subsections (3) and (4) especially, but not in subsection (2)? Indeed, I noted that the noble Viscount did not accept the suggestion of my noble friend Lord Howie that the matter was fully dealt with by Clause 2(I)(b), which says:all the members of which are excluded by the rules of the union".With respect, the noble Viscount was right not to give that as the answer because that is the exclusion part, and that is the first hurdle. But the second hurdle still has to be crossed.
The noble and learned Lord, Lord Denning, asked us not to leave it only to the rules. With respect to the noble and learned Lord, I cited the case of 1952 and his own notable judgment, because even if one does leave it to the rules, the courts still have a control 246 because they must be rules which to a reasonable man can mean something within the area of the term in the Act. That, of course, is a final or, if you like, residual control by the courts. The noble and learned Lord said that we should leave it to the ordinary people. But, of course, it is not ordinary people who will decide this matter; this matter will be decided by an ordinary judge. The noble and learned Lord presided long enough in the Court of Appealߞwhere the odds were two to one on getting it rightߞto know that ordinary judges often get things wrong. They cannot be expected to get things right if they are not directed to the rules. One cannot go to the judge and say "Judge, here is a union which has very peculiar practices about arrears but you are not allowed to look at the rules, you must do it all by common sense". Perhaps the noble and learned Lord could do that in the Court of Appeal, but not all the ordinary judges can do it.
I am very disappointed at the Government's reply. These very simple matters are very important to trade unionists and to the administration of trade unions. A number of other amendments on these matters have been tabled, so if noble Lords think that they are to debate postal ballots immediately they had better have another think. These are the matters that will be dealt with on the ground by shop stewards, by people who devote their weekends and their evenings to administering the unions that keep industry running, along with managers on the other side of the table. They are entitled to better than this; they are entitled to an Act that makes sense; they are entitled to an Act that at least gives some kind of credence to their own rules dealing with the matters which are fundamental to the administration of their own unions.
In the light of the fact that I am quite confident that when the Government read Hansard they will consider the matter again, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 15 to 17 not moved.]247
§ 9.25 p.m.
Lord Dean of Beswick moved Amendment No. 18:
Page 3, line 13, after ("trade") insert (", profession, office, employment. grade, status. craft, calling").
§ The noble Lord said: In moving this amendment may I say that it is not an amendment with far-reaching consequences. but we think that the words in the Bill "trade or occupation" are inadequate to meet the needs of the present large conglomerate trade unions, and there is still a move towards larger trade unions as the smaller ones are absorbed. The categories in the amendment are a more realistic appraisal of the situation in the large conglomerate unions today, and I would ask the Minister whether he would consider, if he does not give a definitive answer tonight, looking at it and, if he feels sympathetic, to come back with something at a later stage. I beg to move.
§ Lord Gray of Contin
Amendment No. 18 focuses on one particular restriction allowed for by these subsections; namely, that the electorate can be restricted by trade or occupation. In detail, the amendment seeks to extend this exemption so that trade unions could restrict seats on their executive not merely to members in a class determined by reference to trade or occupation but also to members in a class determined by reference to profession, office, employment, grade, status, craft, or calling.
I hope that I can be brief in relation to the amendmentߞand I thank the noble Lord for his succinct remarks when he moved the amendment. I can first assure the noble Lord that the great majority of the extra words which he wishes to add are covered already by the words "trade or occupation" which clearly have a very wide meaning. A "profession" would be covered by the term "occupation": a "craft" would be covered by "trade"; and a "calling" would be covered by one or other of these, As there is no sense in littering the Bill with synonyms. I hope that the noble Lord will accept that most of his amendment is simply not necessary. That leaves us only with office, grade and status, and I am bound to say that I had not thought to see the noble Lord's party so clearly associated with such elitist concepts.
Nevertheless, I take seriously the points that the noble Lord made, but I hope I have been able to explain to him that the additional words he seeks to add would be unnecessary. The noble Lord himself when introducing the amendment said that it was not of far-reaching dimensions, and I hope that he might be prepared to withdraw it.
§ Lord Dean of Beswick
I am grateful to the noble Lord for his reply. I am sorry that he does not accept the amendment. I do not believe that the two words in the Bill cover the wide spectrum of people involved in these large unions. Certainly nobody involved in what you could call a trade union could lightly assume that because they are a member of a trade union they are in fact carrying out a craft, because they are not.
A lot of the original craft unions were small and elitist, but as time has overtaken them and the industries they are involved in have grown in dimension, while still craft unions they have become 248 part of larger conglomerate unions. An outstanding example of this is my own union, the AUEW. I remember it was the AEU when I first joined and it was almost totally a craft union. One had to have a skilled craft to even join it, but as engineering developed and some of the crafts were broken down and it broadened out semi-skilled people started to join.
I can remember what was perhaps thought to be the biggest "fix" that ever took place in a union election during the war, when the AEU balloted on whether women ought to join the union. We could not find anybody who had voted for it, but nevertheless the vote was carried and that is how women came to join the AEU during the last war. I have no desire to press the amendment, but I hope that the Minister has not closed his mind to the few things that I have said. I still do not think that the words in the Bill are sufficient to cover the wide spectrum of people involved in some of the large conglomerate unions which now exist and will grow ever more conglomerate as time goes on.
§ Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton moved Amendment No. 19:
Page 3, line 18, after ("union") insert (", including any part of the union, whether or not that section is itself a trade union").
The noble Lord said: This is a very important matter that concerns the way in which the Bill permits trade unions to divide the membership into constituencies in arranging its direct elections to the national executive committee. Having said that the union may divide the membership by way of trade, occupation or geographical area, the Bill then permits the union to divide the members according to sections. I quote the Bill:
a class which is by virtue of the rules of the union
and here we have the rules put in expressly, so we are happy with thatߞ
treated as a separate section within the union".
Anyone reading that would think that that is extremely reasonable and indeed very sensible; but in moving this amendment I also have to speak to Amendment No. 46 which deals with the definition of "section".
Amendment No. 46: Page 8. line 16, leave out ("which is itself a trade union").
The definition of "section" your Lordships will find in Clause (6) (1) which says:
section, in relation to a trade union, includes any part of the union which is itself a trade union".
§ Therefore the union is confined, according to the Bill as it now stands, to sections within the union which are themselves a trade union. It is therefore necessary to consider very carefully what that means.
The definition of "trade union" in Section 28 of the Trade Union and Labour Relations Act 1974 tells us that a trade union is:
an organisation (whether permanent or temporary) which eitherߞ(a) consists wholly or mainly of workers of one or more descriptions and is an organisation whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers' associations; or"ߞ
§ in effect it goes on to deal with federations.249
§ We are looking to see whether a section within a union is itself an organisation with the principal purpose of regulating relations between workers and employers. Both legally and practically that is an extremely difficult matter. There are some unions with a federal structure where areasߞand less than areasߞappear clearly to be separate trade unions within that definition. The National Union of Mineworkers is the best known example. The national union, the area unions and some branches (such as the Arlton and Haydock Branch) are on the list of the certification officer as separate unions.
§ But even where there is not a federal structure to a union there may well be a section which through history and for other reasonsߞfor example, occupational reasonsߞis independent in its existence and which perhaps carries on bargaining separately with employers as well as being part of the national union. In the print unions one finds that phenomenon. One wonders whether the medical practitioners' union, which went into the Association of Scientific Technical and Managerial Staffs, was or is a separate union for the purposes of this Bill. Perhaps the Minister who will reply will answer that question.
§ This matter goes to the situation in regard to mergers. In speaking to a previous amendment, I submitted, with my noble friends that the tight bandageߞto use the phrase of the noble Lord, Lord Howie, rather than straitjacket, the tight bandageߞof electoral practice now bound round the bodies of British trade unions if this becomes law, would inhibit amalgamations and mergers which, everyone would agree, would be desirable. The noble Lord, Lord Campbell of Alloway, suggested that that was not the case.
§ I wish to re-state perhaps more clearly that the practice of separate sections, and indeed of indirect elections through separate sections in a broad sense of "section", is one of the essential features of various types of amalgamation and merger, and anyone concerned with the British labour movement and trade union movement knows that that is the case. Therefore by allowing the union to divide into constituencies by section only when that section is a separate trade union within the definition, the Bill is offering a trade union very little and it is confirming its impediment against amalgamations and mergers.
I must add two matters to that case. First, as a matter of law, it is extremely difficult to apply the definition of trade union to these internal sections of unions that do not have a federal structure. Anyone who has had to advise on or discuss this matter knows that that is the case. The most recent authority is the case of Cope v. Crossingham in 1909 at page 148 of the second volume of Chancery Division reports. It is a case which I am sure the noble Earl, with his remarks from a sedentary position, knows very well. With regard to a resolution passed by a branch to secede from a union, Lord Justice Buckley, who naturally looked at the rules, said at page 161:
The rules are full of difficulties…There does not seem to be any machinery for becoming a member, except by joining a branch, but it is difficult to say that a man could not become a member by joining at the head office…As I read the rules, the branches are not separate unions.
In 1909 the Court of Appeal had great difficulty in knowing whether the branches of this union were separate unions for the purposes of the issue before it. Why should the Government leave this matter in such an obscure state? Partly, I submit, because they have not understood their own Bill. One cannot read the Committee stage in another place without realising that, again and again, explanations were given of this part of the Bill which I am sure noble Ministers in this place would not wish to preserve. For example, the Under-Secretary of State, on 17th January at column 458 of the Committee proceedings, said that,
Any other section as defined in the union rule book can also be included so long as it is a section. It cannot be a random and haphazard grouping but if it is a section properly set up with officers and a constitution, certainly it need not necessarily be a part which is itself a trade union.
That is a direct contradiction to the Bill. On 17th January at column 465 of the Committee proceedings, he said much the same:
The union rule book determines what is a section.
He then appealed at column 459 and later on to the case of Kirkham v. NATSOPA, a decision of the employment appeal tribunal, saying that he could define a section as,
An organisation or unit having officers and membership from which it is possible to retire.
§ If the Government would like to put into the Bill the definition that the Under-Secretary of State gave, that would he a distinct improvement. I wonder whether there has been a slight mistake, that perhaps the briefs got mixed up and the thing that was rejected was put into the Bill and the thing that the Government meant to put into the Bill got into the brief of the Under-Secretary of State in another place. I believe that that may well be the case. I am confident that the Government cannot wish that the affairs of British trade unions in elections on this important matter be governed by the obscurities of the case of Cope v. Crossingham in 1909 in the Court of Appeal. I am confident that for once we shall hear that the Government are prepared to look at this matter again. I beg to move.
§ Lord Gray of Contin
I must congratulate the noble Lord, Lord Wedderburn. He is very easy to listen to and one always enjoys his contributions. But perhaps on this occasion I could highlight the difficulty of having an academic looking after trade union affairs or speaking on behalf of trade unionists because they see problems where problems do not exist. On this issue it really is the noble Lord who has failed to understand the Bill. Clause 6(1) says that the word "section" includes any part of the union which is itself a trade union. It does not say that "section" means a section which is itself a trade union. The word "includes" is the key. Sections can be, or cannot be, trade unions. The definition of "section" includes both.
It is perfectly straightforward, but just in case there lingers any doubt in the mind of the noble Lord, perhaps I may explain briefly the effect of Clause 2(3)(c) as it stands. The effect of this provision is that where a union is composed of various sections which have a clearly separate identity under the union's rules, then it will remain perfectly lawful under the Bill for a union to apportion seats on its executive on any basis 251 that its rules may provide as between the different sections within the union. The provision is thus a recognition of the fact that many unions maintain a constructive balance on their executives as between different sections of the union, and it also ensures that such arrangements need not be disturbed in any way by this Bill.
The flexibility of the provision in subsection (3)(c) is further enhanced by the definition of the word "section". 1 have already dealt with that definition, and so I shall not weary your Lordships' Committee by going over it again. But let me say in conclusion that I really believe that the proposals which the noble Lord, Lord Wedderbum, has put before us this evening are totally unnecessary. The Bill is perfectly clear and perfectly specific on those points. I am quite sure that when this Bill becomes an Act, and when it is being implemented by those self-same shop stewards on the shop floor to whom the noble Lord's noble friend referred a little earlier, it will be interpreted without anything like the difficulties which this evening the noble Lord, Lord Wedderburn, has suggested to us might arise. I am quite sure that when he reads Hansard (as we all do) and when he studies what he has said and what I have said, he will find that the explanation is perfectly clear. I know that he is a very reasonable spokesman and therefore I am sure he will wish to withdraw the amendment without further argument.
§ Lord Dean of Beswick
The noble Lord referred to the activities or the responsibilities of shop stewards under this Bill. I think he ought to be aware that under this part of the Bill the shop stewards, if they have any responsibilities. will have them taken from them.
§ 9.44 p.m.
§ Lord Lloyd of Kilgerran
I hesitate to intervene at this stage hut, as a lawyer, may I say that the noble Lord the Minister said that he found it very easy to listen to the noble Lord, Lord Wedderburn, whereas it seems to me that he is in a state of complete unease because he did not answer any of the major points which the noble Lord made. I am speaking for myself on this matter, as I have not consulted my noble friendsߞI am glad that I have some support from the Government Front Benchߞand I would suggest that for the noble Lord to rely on the definition of "section" M this Bill is to misunderstand wholly the position.
As I understood him, the noble Lord, Lord Wedderburn, was referring to those sections of a trade union which are not necessarily themselves a trade union but which are, as a matter of practice, involved in negotiations with employers. He made a very important point, and that was that we wish to get trade unions to merge. The noble Lord, Lord Wedderburn, said that unless this clause of the Bill is modified in relation to the definition of "class", it will produce difficulties in relation to mergers. If I may say so, I am sure that the noble Lord, Lord Campbell of Alloway, with all his experience of trademark law, will support me on this matter.
252 It leaves the position in rather a mess, and I should have thought that. in view of the major matters which the noble Lord, Lord Wedderburn, has raised, the noble Lord the Minister would like to take this back and think about it once more. That would be preferable to his making the kind of oration that he did and failing to deal with the specific points of objection to this subsection which the noble Lord. Lord Wedderburn, raised.
§ Lord Campbell of Alloway
Very briefly, as my name has been mentioned. may I say that I am grateful to the noble Lord, Lord Lloyd of Kilgerran, but I was not aware that we were discussing trademark law. Much as I would wish to support him on every conceivable occasion, I must say that if "includes" means "includes", which I suppose it does, I cannot see the difficulty.
§ Lord Gray of Contin
I shall very quickly answer the noble Lord, Lord Lloyd, because I sense the feeling of the Committee that there are other amendments which we are anxious to get on to and which are of major importanceߞ
§ Lord Gray of Contin
ߞbut let me not neglect the duty of a Minister to answer points. I am grateful for the intervention of the noble Lord, Lord Lloyd, albeit rather late in the proceedings. Nevertheless, I would reiterate to him that the word "section" covers both those parts of the union which are trade unions in their own right and those parts of the union which are not. I tried to make that as clear as I possibly could, and I reiterate it for the benefit of the noble Lord.
§ Lord Wedderburn of Charlton
I am in some difficulty. The noble Lord has said that, so let me briefly say a word. I listened very carefully to the noble Lord, Lord Lloyd of Kilgerran, and I apprehend that both he and I are in disagreement with the Minister about a very simple matter of construction. The Bill states in Clause 6:'section', in relation to a trade union, includes any part of the union which is itself a trade union".Of course, the word "includes" is used, but what the noble Lord. Lord Gray of Contin, was saying to me was that that was the same as our amendment; namely, that a section was a section, whether or not that section was a separate trade union.
If that were the caseߞthe noble Lord has said it twice; no doubt he will say it three times, and what he says three times must be trueߞthere would be no point in having that definition clause, because it would mean that a section includes any part of the union which is itself a trade union, and includes any part of the union which is not itself a trade union. That is not what it says, and any court, given that, must make some sense of it. Even in this Government's legislation there must be some sense in this definition.
The noble Lord says that I raise this as an academic matter. I do not know when he last discussed it with shop stewards, but I discussed this very matter with shop stewards last week, because we were discussing this Bill and amalgamations. I said then what I say 253 now: that I believe it to be the better interpretation that this Bill restricts constituencies to an artificially narrow area of sections which are trade unions. There is no other possible interpretation of the definition on page 8. There is no other need for the definition.
It may be that it is only when noble Lords on the Liberal Benches get up and join us that the Government will really listen. That has happened, so will they listen and take this back? I ask the Minister whether he will take this hack and look at it again. It is to us, and to ordinary trade unionists, a very important matter indeed. We shall not withdraw the amendment, but we shall not divide on it. I shall ask my noble friends to negative it in the usual way, if the noble Lord the Minister will not take it away.
§ Lord Gray of Contin
I have always operated on the belief that if you take something away you take it away with the genuine intention of seeing whether you can change it. I do not believe that if I took this away I would come back with any different suggestion. Therefore, I would be misleading the Committee if I took it away, so I suggest that the noble Lord should negative this amendment.
§ On Question, amendment, negatived.
Lord Wedderburn of Charlton moved Amendment No. 20:
Page 3, line 28, at end insert ("and otherwise than by reason of an unintended mistake by those conducting a ballot which it is reasonable to excuse.").
§ The noble Lord said: The amendment spans some of the issues which have already been dealt with and runs over to later matters. However, it is convenient, very briefly, to take the point now. The amendment suggests that since the Bill provides that certain requirements have to be satisfied, an exception should be added that there should be no fault in the ballot where there is an unintended mistake which it is reasonable to excuse. Whether or not the noble Earl, Lord Gowrie, introduced companies, or whether I did, I am sure he will not mind if I say that this amendment is based upon a parallel with company law. In Section 448 of the Companies Act 1948 there is a provision which permits, in any proceedings for negligence or default or breach of duty, an officer of the company to be excused if it appears to the court that he acted honestly and reasonably and that in all the circumstances of the case he ought to be excused wholly or partly from liability. This is a much shorter version, and the drafting ought perhaps to be expanded.
§ We say that having reached the point where quite serious demands are made upon union machinery, whether or not they have Government money-you cannot cure everything in organisations merely by putting funds in—
§ Lord Wedderburn of Charlton
I am grateful for the noble Earl's agreement. This is a matter of human relationships. Unions, we say, faced with all the 254 tripwires in Clause 2 of this measure, are hound to make mistakes. Already people are lining up to bring actions. We all know who they are. We know, too, that available registers of members in some unions are not, with the best will in the world, easy to maintain, especially where the workforce is mobile, as in the construction industry. Even in a union like the AUEW, there is the recent famous statement of Sir John Boyd in which he said:We rely on 2,558 branch secretaries to advise the executive council in their fortnightly movement reports of deaths, transfers, resignations and expulsions. If they fail, then certain inadequacies are inevitable. Twice a year all secretaries are provided with an updated voting register, and attention is drawn to the names and addresses of members whose ballot papers are returned undelivered. To have a register of 805,350 voters out of a membership of 1 million is a wonderful achievement".I doubt whether the Government would deny that that is so. However, in such a situation it is inevitable that honest mistakes are made. Indeed, on a number of occasions in another place, as on 24th November, the Minister of State appeared to say that an honest mistake on the part of a union would not give rise to liability. It is no answer to this point to say that the court may have a discretion. The court's discretion comes later in regard to enforcement. In this amendment we say that if there is an unintended mistake and it is reasonable to excuse it, there should be no liability in the first instance for failure to bind the tight bandage of electoral procedure so tight as Clause 2 would have it. I beg to move.
§ Lord Gray of Contin
I am sure that the noble Lord, Lord Wedderburn of Charlton, will agree that we have already discussed this matter in some detail under Amendment No. 13. It revolves around the difference between opportunity to vote and entitlement to vote. Therefore, I shall try to deal with it fairly briefly. I can best do so by describing just exactly what the Bill's provisions on entitlement to vote are.
Subsections (I) to (4) of Clause 2 provide for one of the essential democratic requirements in any election. This is the basic principle of one man, one vote. But at the same time the Bill allows unions to continue to operate sensible restrictions on entitlement to vote where these do not conflict with the Bill's basic democratic requirements. Thus, Clause 2 provides for two kinds of exception to the one man, one vote principle in order to accommodate acceptable current practice in trade unions.
The first exception is provided by subsections (1) and (2) together, which allow certain groups of members to be excluded from all elections to the governing body, if that is what the union's rules provide. The second exception is provided by subsections (3) and (4), which deal with the practice which is very widespread in the union movement of allocating seats on trade union governing bodies on a regional, occupational, trade group or sectional basis, the electorate for such seats being in general the members in the particular region, occupation or section concerned. Subsection (3) allows such arrangements to continue subject to the safeguards in subsection (4).
§ We shall shortly be discussing the Government's amendments to subsections (6) and (7) of this clause. That will provide an opportunity to discuss the Bill's provisions on the opportunity to vote. However, I hope that on the basis of what I have said the noble Lord, Lord Wedderburn, will be prepared to withdraw his amendment at this stage.
§ Lord Howie of Troon
There is one small point which the noble Lord the Minister has not dealt with. While we all agree with his comments about entitlement to vote and opportunity to vote, we must realise that a ballot goes a little further than that. The ballot is not really finished until after the votes have been collected and counted. It is quite possible that at these later stages, with which the noble Lord did not deal, there could be an honest mistake made. It is honest mistakes that we are talking about. The point of this amendment is to protect people who have made an honest mistake which did not materially affect the final result. The Minister's explanation did not cover the points I made, and in fairness he should undertake to look at this point again; but I will not ask him to take up more time by replying now.
§ Lord Wedderburn of Charlton
I do not agree with the Minister that this matter is dealt with by Amendment No. 13, which has really become Amendment No. 22, which we are about to debate, when the Government insert their new subsection (6). But if the Minister invites me to return to this point in that context, I shall be happy to do so. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9.57 p.m.
§ Lord Beloff moved Amendment No. 21:
Page 3, line 31, leave out subsection (6) and insertߞ
("(6) Every person who is entitled to vote at the election shall be allowed to vote without interference and have a fair and convenient opportunity to vote. Such elections shall he held by postal ballot, with the voting papers being sent to all members recorded as being eligible to vote in the latest available central register of membership. Responsibility for the surveillance of the distribution, return and counting of voting papers shall be in the hands of an independent body.")
§ The noble Lord said: In moving the humble Address after the Speech from the Throne, the noble Earl, Lord De La Warr, applauded the inclusion of a ballot Bill in the Government's programme and pointed out that the need for the ballot was the result of the enfranchisement of working men who claimed themselves to be fearful of pressure from their employers as to how they cast their votes. I am of course referring not to my noble friend Lord De La Warr but to the bearer of that title during the parliamentary Session of 1872. During the debate on that ballot Bill in another place. a Member there pointed out that working men were fearful not only of their employers bringing pressure upon them but also of pressure from officials of their trade unions. So what we are discussing has a long historyߞ1872 to 1984.
§ I refer to these events not merely to show how long 256 a history there is of attempts to safeguard the integrity of elections, but also to make the point that this amendment is trying (as the Bill in general is doing) not to impose some alien device upon unwilling trade unionists but to meet as best one can a demand that has come to noble Lords from many trade unionists themselves, who believe that their right to vote freelyߞtheir opportunity, if one likesߞis curtailed by aspects of the present system in certain unions and that they would not (and this is the reason for the amendment) be sufficiently safeguarded by the proposals in the Bill itself.
The case for the superiority of postal ballots over other forms of ballot was made in general terms in a notable speech by my noble friend Lady Cox, who would have been moving this amendment had she not been overseas today. I do not wish at this late hour (a late hour not of my choosing) to cover the same ground again. In that speech I may remind noble Lords that the noble Baroness, Lady Cox, quoted the views of the retiring general secretary of the EETPU, Mr. Frank Chapple, and I in turn should like to quote his successor elect, Mr. Eric Hammond, who in a speech earlier this month said:
No other union has experienced the anguish and humiliation which my union suffered as a consequence of the communist ballot riggers who once controlled our affairs … we turned out the communist fraudsters and introduced postal voting with ballot papers sent direct to the members. We regard our system as the only genuine fool-proof method.
§ As other passages in the same speech by Mr. Hammond show, he is no follower of the Conservative Party and no admirer of the present Government. But I think that the experience which he has had in the service of his union should give added weight from a different political quarter to the strong support for postal ballots which has come, as was referred to by my noble friend Lady Cox, from the Association of Conservative Trade Unionists and from the Organisation of Trade Unionists which is linked with the Social Democratic Party.
§ If for a moment only I may speak in the direction of my noble friends, I would say that I find it quite extraordinary that on a matter of this kind the Conservative Party, which has devoted great energy to building up the Association of Conservative Trade Unionists, should not have regard to its expressed views on a matter which is of more direct concern to them than to any other members of the Conservative Party. The chairman of the party, in another capacity, as has been pointed out today, gave some very unsatisfactory replies to the suggestions that postal ballots should become the norm. He may find his position as chairman a little difficult when he comes to plead with the Association of Conservative Trade Unionists to put its full weight behind the party in any elections that may be coming.
§ I would not suggest. in moving this amendment, that there is only one way by which members of any organizationߞtrade union or whateverߞcan safely and democratically elect its officials. Indeed, if, as I hope, the Government accept the principle of this amendment, they should be able at a later stage to introduce a more elaborate version which would make special arrangements to fit in with the needs of particular unions, where the circumstances of the 257 workforce make postal ballots difficult to provide (as we dealt with earlier today) for indirect elections where these seem more appropriate and are already the practice in certain unions.
§ What my noble friends and I seek in putting down this amendment wish, as my noble friend Lady Cox sought on the Second Reading, is simply to establish the principle that direct postal ballots should be the norm and departures from this norm should have to be justified. The reason for this arises from the nature of the current, and possibly future, contests for office in trade unions. The noble Lord, Lord McCarthy, who has a certain capacity for verbal acrobatics, managed to turn this issue upside down when dealing with an earlier amendment. He said that the Bill threatensߞand no doubt he would agree that if it were amended, it would still so threatenߞto politicise trade union elections. The truth is that the elections are politicised. That is the reason both for the Bill and for the amendment which we are now putting forward. Where you have in any form of electionߞand it can equally be applied to the reforms in parliamentary elections in the last century to which I have already referred-organised parties striving to achieve power in an important and powerful organisation, you cannot always rely on self-restraint. Otherwise, how would one occasionally seeߞmore than occasionally, perhapsߞevidence of a fact that the elected executive or whatever it may be appears to indulge in actions which are somewhat removed from the impression that one has of its general membership?
§ Noble Lords in all parts of the Committee may occasionally have dealings with officers of local government over rates or planning or whatever it may be. I wonder if they have ever come into the office of a local government officer and found it difficult to attract his attention because his head is buried in the Morning Star. Yet that union has itself given financial support to that newspaper. Mr. Hammond and Mr. Chapple have talked about the communists; and that, of course, was the occasion for the famous fight which led to the establishment of their present electoral system. But we know that since that successful battle, which is now many years ago, another movementߞcall it Trotskyist or Militant; it takes more than one guiseߞhas also gone to work to capture trade unions through the exploitation of the possibilities afforded by their electoral system.
§ Noble Lords on the other side of the Committee, at any rate, should be able to recognise many of these tactics since they are the same ones which have been adopted in order to remove from their constituencies and remove from their candidacies friends of theirs in another place. And there is no greater authority on the ability to do this than the noble Lord, Lord Underhill.
§ Why not, then, workplace ballots? May I again quote Mr. Chapple? He says that workplace ballots are too easily open to the intimidation of the voters, to the improper use of discarded ballot papers, to phoney returns and to a variety of other illicit behaviour. The Government's apparent case for preferring workplace ballots to postal ballots is that they produce a higher turnout. Turnout is obviously an important feature of any electoral system. But it is not the only important feature, otherwise we shall all have to salute the turnout achieved in the Soviet Unionߞ99.5 per cent!258
§ A splendid turnout, but it still does not give us total confidence in the method by which citizens of the Soviet Union elect their representatives.
§ The other reason which apparently moves the Government is that it is difficult to keep proper recordsߞand clearly proper central records are required if you have a postal ballot. The noble Lord opposite quoted that the AUEW has managed to produce a register which certainly incorporates a vast majority of its members. The EEPTU keeps up to date and claims successfully to keep up to date a register which enables it to have a central postal vote. The important thing, after all, is not the number of votes cast but the fact that the votes that are cast are cast by the people in whose names they are cast and by no one else.
In the Second Reading debate, the noble Lord, Lord Wedderburn of Charlton, declared:
There really cannot he any case for control of trade union rules for elections based upon malpractice".ߞ[Official Report, 15/5/84; col. 1340.]
§ I know that the noble Lord and his noble friend Lord McCarthy have a hear-no-evil, see-no-evil pact where trade unions are concerned; and I take it that the noble Lord, Lord Dean of Beswick, is associated with them, as a man who speaks no evil.
§ Lord Dean of Beswick
The noble Lord is making some rather oblique assertions and accusations. Would he substantiate them? Finally, would he get on to the amendment on the Marshalled List?
§ Lord Beloff
The noble Lord, Lord Wedderburn, saysߞand has said more than onceߞthat we cannot proceed to legislate about malpractice because there is no evidence that this ever occurs. I can only suggest that he is so busy with the Geneva conventions and with the commentaries by other learned lawyers upon those conventions that, unlike the rest of us, he does not read the daily newspapers. Otherwise, he would know, for instance, that in the great city of Bristol. the Transport and General Workers' Union has had to order an inquiry because of allegations of malpractices in the very important election which is going on for the general secretary of that union.
§ Lord Wedderburn of Charlton
Is the noble Lord saying that those malpractices are proved, or is the matter sub judice? Is that evidence?
§ Lord Beloff
I said that responsible trade unionists obviously think that there are matters which deserve investigation. I say no more, and I say no less.
§ Lord Beloff
The evidence which the noble Lord seeks would be evidence which has been tested in a court. There are, alas, a great many examples of things which are unjust and which are not brought to court for reasons with which the noble Lord, Lord Wedderburn, is very familiar. One is the cost of litigation, with which his profession is perhaps concerned, and the other and more important one is that if it is done by a member of an association he may find that he loses his status among his friends and his colleagues, and may even lose his job.
However, I take what the noble Lord, Lord Wedderburn, says seriously. I thought therefore that I ought to look more closely at examples of trade union election procedure. I have been studying in some detail the election just held by the Civil and Public Services Association, whose high turn-out in previous years is one of the things quoted in favour of work-place ballots. though that turn-out has dropped, as noble Lords will know, very markedly recently.
It is clear if one looks at the procedures of a union of that kind that the mental image of work-place ballots based upon the practice of the National Union of Mineworkers, with a limited number of workplacesߞthe number of mines in the countryߞand the regular pattern of work, really cannot possibly apply to a union whose workers are scattered all over the country in innumerable work-places, sometimes in ver), small groups. Therefore, in the organisation of work-place ballots, enormous powers are put in the hands of local officials. They issue the ballot papers. I must say I should not like to have to fill in a ballot paper of that length: it makes some Californian ballot papers look relatively simple. They collect them. They are the interpreters of whether or not the ballot paper has been filled in correctly. They are the people responsible for counting them and they are the people responsible in the branches for returning the totals to the central organisation.
Already, and not for the first time, there are complaintsߞI do not say they are proved complaints, I say there are complaintsߞthat here and there, in one place and another, satisfactory opportunities for voting at times convenient to the individual worker have not been provided. Furthermore, despite the month which the union's rules allow for the election, 82 branches sent their papers in late; 20 branches sent in papers which were spoiled and 112 branches sent in no papers at all. In other words, there are clearly quite a considerable number of members of that unionߞwhich the Government regard in some respects as a model for its workplace ballotsߞwho have not cast a vote. Therefore it seems to me that the noble Lord, Lord Wedderburn, is presuming too much on the Committee when he says that under no circumstances, in no possible way, could there be any cavil at the practice of any union in respect of any election.
I come to the end. The Government have now introduced two amendments which I understand were 260 meant to deal with the criticisms of their scheme and with the case for postal ballots, which had been made by my noble friend Lady Cox. I regret to tell the Ministers that they do not satisfy the Association of Conservative Trade Unionists; they do not meet the criticisms of the EETPU. and they do not satisfy either myself (which does not matter very much) or those who have put their names to this amendment with me. I fear that these amendments do not bear the marks of ministerial inventiveness but clearly are the work of some civil servant whose idea of a hotly contested election is the annual ballot for the committee of the Athenaeum.
What the Government appear to be doing in these amendments is to thrust on either the trade unionists or the courts the burden of making certain that malpractices do not occur. First, the burden will he on the individual trade unionist, who is going to show his distrust of his colleagues, his shop stewards and his branch officials, by asking for a ballot paper. That is not a very inviting prospect, especially in any organisation which claims loyalty from its members. Secondly, it is to ask the courts or to enable the courts to intervene to enforce a postal ballot if complaints against the conduct of another form of election are upheld.
The curious point seems to me that the Government, in the second amendment, give away their entire case on practicability. If postal ballots become practicable because a court has ordered them, why should they not be practicable from the beginning and included in the Bill? There are not many subjects upon which I find myself in total agreement with noble Lords opposite, but I may say that on the question that the courts should be brought in as little as possible in the conduct of both industrial relations and the internal affairs of trade unions, I agree with them. The important point in legislation is that it should be self-enforcing by the people it is intended to benefit.
I therefore very respectfully ask the Minister to suggest to his noble friend that, in view of the strong support from quarters with which he should feel an instinctive sympathy in his own party and in other parties as well, he should think again and come back with a suggestion. That is a suggestion not necessarily in the terms of any particular amendment but a suggestion which would make postal ballots sent to the individual's home the normal method by which the governing bodies of trade unions are elected. I beg to move.
§ 10.20 p.m.
§ Lord Marsh
This is a very special night. That is demonstrated by the number of noble Lords attending the debate at this late hour. I shall seek to be as brief as possible. It is special because this is a very unusual situation. Tonight, the Government will be going through the "Not-Content" Lobby arm in arm with the Labour members of the Opposition. One could almost stop there and say that there must be something wrong with the Government's position. As a result, they will almost certainly, of course, defeat the amendment. They have very efficient Whips. The amendment, I suspect, is gone.
They will defeat an amendment that is a simple amendment. All that it seeks to do is to provide 261 ordinary lay members of trade unions with the protection of secrecy when they indulge in a ballot on what could he a highly controversial matter. For that, the Government Whips, with their skill and dedication to duty, will do what they can. As they walk through those Lobbies, for the first time, the noble Lords, Lord Wedderburn and Lord McCarthy, will have around their shoulders the friendly and protecting arm of Ministers opposite. I hope that the noble Lords, Lord Wedderburn and Lord McCarthy, have a greater appreciation of the occasion than I expect noble Lords opposite to have.
Of course, the Government will have other supporters tonight, much further to the Left than most noble Lords on the Labour Benches. The Socialist Workers' Party would also be opposed to the amendment; the Militant Tendency would support the Government in their opposition to this amendment; Mr. Arthur Scargill and the Morning Starߞall of them support the stand which the Government take tonight on this amendment, not just in passing but as something they see to fight against, as some sort of threat. Their supporters and their colleagues who will march with them in this battle-one can understand totally their view. I have no issue against them at all. They have always been against the principle of compulsory ballots. If you are against the principle of compulsory ballots, it is perfectly logical to be against anything that makes the compulsory ballot more effective in its intentions. There is a perfectly sensible and a perfectly respectable argument against the concept of compulsory ballots. Noble Lords opposite have put those arguments. They are arguments that I do not accept, but they are perfectly respectable arguments.
I cannot begin to understand how anyone can support the principle of compulsory ballots but deny those concerned the right to cast their votes without the fear of intimidation or ballot rigging. The noble Lord, Lord McCarthy, on a number of occasions this afternoonߞhe did so in his very first contributionߞhas poured scorn on the idea of ballot rigging within the trade union movement. It is a loveable and innocent characteristic. It is something that we appreciate. It has a charm about it. Only an academic could believe it.
§ Lord Marsh
My noble friends should not push the line too far. I am sorry; I should say that noble Lords on the Labour Benches should not push the line too far. I have been, as they will know, a full-time union official for nine years.
§ Lord Marsh
I played an active role in the Labour Party when the noble Lord, Lord Underhill, was its very successful leading apparatchik. Do not tell me that political parties and trade unions do not indulge in a little gentle massaging and manipulation of ballots. That is a degree of naivety that I will accept from some noble Lordsߞ
§ Lord Underhill
We have had innuendoes. I know a lot about the Militant Tendency movement, but we 262 have had smears and innuendoes of which the Militant Tendency would be proud. We ought to have definite facts, and not smears of that kind.
§ Lord Marsh
I do not want to digress, and I was hoping not to be controversial in this. If I may say so, the noble Lord, Lord Underhill, has the credit for being the person who exposed the ballot rigging and the manipulation involving Militant Tendency within the Labour Party. He was responsible for that, and it was a very honourable achievement, and a very important one so far as this country is concerned. He knows far more about it than I do.
I shall come to the amendment; I was diverted against my wishes. Ballot rigging has been widespread for generations in trade unions, and all sides have been involved in it. The widespread corruption which was exposed in the ETU 20 years ago, and to which the noble Lord, Lord McCarthy, referred at the very beginning of the day, was not the result of a lack of ballots. Many unions have had ballots and a widespread structure of balloting. It was about the manipulation by the union of its members by misusing the balloting procedures which the ETU had. Ballots, of themselves, do not prevent corruption within the management of trade unions; it is the way in which they are conducted that matters.
The noble Lord, Lord Beloff, mentioned allegations relating to the election of the general secretary of the Transport and General Workers' Union. That immediately brought some noble Lords to their feet. They said he did not have evidence, that it was innuendo, that there was no evidence of it. Of course, one cannot conceivably mention these things as facts, because they are not facts, they are not proven; indeed, the evidence has not been heard. So I shall not make any allegation at all. I shall simply inform the Committee of what the charge is in the elections for the general secretaryship of the Transport and General Workers' Union. The vote is carried out by those eligible presenting their union card. When it is franked "GS", that demonstrates that they have cast the vote in the general secretary's ballot. The only thing that people are suggesting-they may be wrong; I do not know: it does not necessarily prove anything at allߞis that the allegations of vote rigging were made after a number of members found their cards had been stamped when, in fact, they had not voted. I would not draw any conclusions at all from that.
Then there is the questionߞit was mentioned in passingߞof the election for the general secretaryship of the National Union of Mineworkers, which took place quite recently. Again, I make it very clear that I do not draw any conclusions at all. I simply quote the argument which Mr. John Walsh, who was the unsuccessful candidate, has placed in writing, and about which he is prepared to go to the High Court. Mr. Walsh is asking why the polling station closed early at Kellingley Pit, in his home territory of North Yorkshire, depriving some miners of the right to vote; why the figures for unused ballot papersߞan essential part of the counting procedureߞhave not been issued; why there was, as was said, an abnormally high percentage of spoiled ballot papers; namely, 3,935. Mr. Walsh was defeated by 3,615 votes. Several well-informed leaks after the closure of ballots, which noble 263 Lords read about in their newspapers, demonstrated, after the victory for Mr. Heathfield, that a number of people had access to the ballot papers.
Those are the charges. They may be totally wrong. It may be something which does not happen and has never happened. and that, left with that degree of power, we are all perfectly all right. Obviously this is the view of Her Majesty's Government. The fact is that workplace ballots are not, and cannot be, secure from interference: and, more important, they cannot be secret. They cannot be secret because men and women who have worked together, day in and day out for years on end, are bound to be aware of the views of their workmates on major matters affecting their working lives.
Think for a moment of the present miners' strike. Day after day, very brave men, some of them a small minority in their community, fight their way to work. with the aid of the police, through the screaming, fighting ranks of Mr. Scargill's storm-troopers. Some time in the not too distant future the strike will be over and in many pits those self same thugs who we see each night will be back in charge of the local union branch. Among their other duties they will have the task of ensuring fair play in the ballots that follow. They will supervise the balloting procedures. They will not easily forget or forgive those who challenged their authority. Those pits will not be happy places for those who so long defied that mob. Many of us will admire their determination, but very few of us will envy the situation in which they find themselves when they go back down those pits again.
There is nothing hypothetical about this. It is not an academic exercise. It is the real world for many thousands of trade unionists at present. Yet in that situation we are told by the Government that it would be wrong to allow them to vote in the security of their own homes, secure in the knowledge that no one can possibly know how they voted, becauseߞand this is the crucial pointߞno one will know whether or not they did vote. That is the difference. When a man votes at the pithead you do not have to see the ballot paper, you know his views. With a postal ballot no one will know whether they have voted at all.
I ask the noble Lords to consider tonight whether the bully-boys who we see every night on our television screens would be more likely to support the amendment or to oppose it. I regret to say that I have no doubt whatever that the militants would be in the Lobby with the Government and with the Opposition. I have no doubt that if compulsory ballots are conducted at the workplace and under the supervision of worker activists, we shall have constructed an instrument of coercion and intimidation. That will not just be wrong: that will be shameful.
§ Lord McCarthy
I want to address myselfߞif I canߞto the remarks of the noble Lord, Lord Beloff. The only thing that I want to say about the noble Lord, Lord Marsh,is that I thank him for his concern about us as we go (if we do) marching through the Lobby with the Government. But the noble Lord should know how we feel. After all, in his time he must have been through every Lobby that there is. So do not worry about us all that much: we shall survive. I would 264 rather turn to the argumentߞif it can be called an argumentߞwhich has been put forward by the noble Lord, Lord Beloff.
I do not think that the noble Lord was present earlierߞalthough he may have beenߞwhen we were discussing with the noble Earl the question of Part 1 and Clause 1 of the Bill. I was trying to get the noble Earl to tell me what it was that justified the Government in singling out trade unions and saying that they must have direct elections and under no other system could they operate, and what it was about trade unions that did not exist in clubs, in companies, in professional associations or in Parliament itself. I am not sure whether the noble Lord was present or not. However, it is quite clear that he is using the same argument. Once again we are being told that we must have somethingߞin this case a postal ballotߞimposed upon trade unions which is not imposed upon clubs, companies and professional associations. A compulsory postal ballot is something which we do not have in a general electionߞ
§ Lord Howie of Troon
Will my noble friend give way? My noble friend has mentioned professional associations twice. He is quite right in saying that postal ballots are not imposed upon them. But the great majority of professional institutions, such as the Institution of Civil Engineers, to which I belong, use postal ballots and always have done so, and they use them perfectly sensibly. Therefore, will my noble friend stop saying that?
§ Lord McCarthy
I would not accept that the great majority do so, but it is perfectly true that some do so. The point is that the law does not insist that they do so: that is the issue. Nor does the law insist that it happens in general elections or in local elections. You cannot get a compulsory postal ballot: you cannot even get the postal ballot on demand in general electionsߞeither you have to be ill or you have to be abroad. You cannot get it even when you are on holiday. But in the trade unions the amendment says, yes. Trade unions are not like clubs, companies. Parliament or professional associations: they, and they alone, are so corrupt that you can get a decent election in a trade union only if you have a compulsory postal ballot! That is the sense in which the noble Lord, Lord Beloff, is in line with the Government, because they also believe that unions are very peculiar things.
One would expect there to be some justification for singling out trade unions in this way. With respect, one would expect that one would get some evidence. We say that there has been no evidence to justify the charge, and no evidence to justify the amendment. Indeed, the Government say that. The Minister of State in the Standing Committee on 31st January 1984, at col. 899, said in reply to a question by Mr. Mikardo:The hon. Gentleman must be reminded that the Bill is not concerned primarily to avoid malpractices in trade unions. Its primary concern is to ensure that trade unions provide a democratic framework in which their members, who are often too weak to defend themselves individually, are given the right to control their own unions".In other words, the Minister of State is not suggesting that he can prove malpractice on a scale to justify his 265 own Bill. We are not saying that there are not malpractices in trade unions. There are malpractices in every voluntary organisation. There is not a bowls club, a tennis club or a golf club in the country which does not have malpractices. Of course, there are malpractices.
§ The Earl of Onslow
Is the noble Lord really saying that the Transport and General Workers' Union, the electrical trades union and the mineworkers' union are of the same importance as the West Clandon Village Legion or the Merrow Golf Club?— because, if so, he underestimates both the unions and the Merrow Golf Club!
§ Lord McCarthy
The answer to that is, no, I am not saying that; and if the noble Earl had listened he would have known that. I am glad that I have struck home. All these insults can be made about trade unions and there is no reaction at all. I should have mentioned cricket clubs; I will say it again: malpractices exist in cricket clubs. Of course there are malpractices, but for the most part they are insignificant and for the most part they do not affect the result. Very often they are simply the result of people not carrying out precisely what is said in the rules, because they can think of a rather easier way of doing something.
One of the great problems which I have over trade unions— and I think to some extent my noble friend Lord Wedderburn has— is that trade unions will not read their rule books. They believe what what stands to reason must be in the rule book, and therefore, without carefully reading their rule books, they will go about their business doing things which they think ought to be done and which they ought to be able to do. But if they find themselves in front of the noble and learned Lord, Lord Denning, he will say that that is contrary to the rules and it is a malpractice. These are relatively innocent things and they exist in all voluntary organisations.
I am not saying that they do not exist in trade unions. Why should I? I am not even saying that within trade unions there are not examples of the kinds of things which, as the noble Lord, Lord Marsh, said, were such a scandal and such a disgrace in the case of the ETU. Nevertheless, we must say that we have had no case of the size and scandal of the ETU since the middle 1950s.
§ Lord McCarthy
Nothing like it. We can be quite certain that, if we had, we should have read all about it in all the newspapers. So we are not saying that there are not malpractices; we are saying that the degree of malpractice that exists in voluntary organisations exists in trade unions; that by and large they are no worse than anywhere else; and that what exists does not justify what is being proposed in this amendment and does not justify what is being proposed in the Bill.
§ Lord Hooson
Is not the noble Lord taking a long time to say that though we are all against sin we should not be dogmatic about it?
§ 10.40 p.m.
§ Lord McCarthy
That is partly because I am being interrupted, but I shall try to get on. One argument which might be made for having postal ballots would be that it would lead to greater participation; but the ground has already been given up by the noble Lord, Lord Beloff. He has already admitted that the evidence indicates that the greater degree of participation is caused by a mix of systems. That is what the Undy book indicates. If you have a mix of systems you can have workshop ballots when you can get them, when the employer will co-operate, or you may have postal ballots, or you may have people simply voting in the branches, or shop stewards taking round the voting boxes.
§ Lord McCarthy
I know that every time people hear the words "shop stewards" they suspect something. The evidence indicates that the best way to get the highest degree of participation is to have a mixed system, and that if you have postal ballots in many unions— in, for example, unions with high rates of turnover— the result will be relatively low levels of participation. The other side do not mind that. They have given that away, and so they bring forward their amendment.
I hope that the noble Lord, Lord Beloff, will answer me about the words used in the amendment. He seemed to be saying in his speech that the amendment really only meant that postal ballots would be the normal way of doings things, so that abnormal unions in abnormal situations would not have to have postal ballots. I do not see that in the amendment. What the amendment says is that everybody would have postal ballots. If he does not mean that then he should put something different in his amendment.
Then the amendment says that election shall be held on the basis of a "central register of membership". I hope the noble lord will take it from me that in fact there are many unions which do not have a central register of membership. Far from being in the position of having a recorded central membership register, there is not one. Is there going to be some coercive power in the Bill— and where is it going to be?— to force unions that do not have central membership registers to get them?
The main reason why they do not have central membership registers is because they have found that they can make their registers much more accurate if they do not centralise them. If you centralise them they tend to get out of date, and so the unions keep their registers in the regions or in the areas. If the noble Lord wants a central membership register, in many unions I am afraid that the register will be even more out of date than it would be if he had the register in the regions. If that is what he is saying, then he should tell us.
In the second line of the amendment it says:the election shall be allowed to vote"—that is to say the elector—without interference".I want to know without interference from whom? I take it from where the amendment has come that the 267 noble Lord is really thinking about interference from shop stewards. Naturally. But it might be interference from the employer. What is the mechanism in the amendment by which this interference from the employer is going to be repulsed? What are the sanctions? It seems to me that this amendment is not only unnecessary and unjustified but is extremely badly drafted as well.
§ Viscount Massereene and Ferrard
Before the noble Lord sits down, may I say that he forgot to mention immunity from the law. It is a civil proceedings order, so you cannot compare it with a club, or a professional association.
§ Lord McCarthy
I always thought we had some immunity from law in this House, and I always thought that companies had immunity from law. If the noble Viscount is saying that one is like a trade union if one has immunity from law, many people would come in.
§ Lord Denning
I ask your Lordships to support this amendment. The opening words of it are quite unexceptionable:Every person who is entitled to vote at the election shall be allowed to vote without interference and have a fair and convenient opportunity to vote.'The whole question is: how is that to be afforded? Is it to be by a postal ballot or by a workplace ballot? As to a postal ballot, it is virtually unchallengeable. There should be a central register of members for all unions if they are to conduct their business properly, to know about subscriptions, arrears of subscriptions, expulsions, membership, and the like. If they are in the regions, let them all be gathered together as one central register of membership, so that there is no difficulty in conducting a postal ballot. It will be in secret, without interference in any way. It is a truly democratic method of election.
What is the alternative?— it is the workplace ballot. We have heard all the difficulties of ballot rigging, and the like: but I suggest that on this Bill and in any Bill, such a ballot can be challenged before the courts by any person— every person has a right to vote and see the number of matters that can be decided by the judge on any application to declare the ballot unlawful, without any interference or constraint. How can that be challenged? Any one of those men who were impeded in going to work will be able to challenge it in any way, such as not receiving a voting paper, and time after time so far as is reasonably practicable he should "have a fair and convenient opportunity to vote". "So far as is reasonably practical"— I can imagine case after case being brought by individuals before the judge and saying "This was not fair. I did not have an opportunity. I did not have the proper time."
This system of ballot can be challenged time after time by the judge. He has the most difficult questions of fact and of law to decide. but without interference or constraint, whether it is fair and reasonable, whether it is "so far as is reasonably practical"— time after time a workplace ballot can be challenged and will be 268 challenged before the judge. He will be in great difficulty about it on points of fact and law. There will be an appeal to the Court of Appeal and the decision on the validity of the workplace ballot will not survive or will not be decided for months and months. The objection which I would take to the workplace ballot is that it can be challenged and will be challenged in the courts on most occasions. It is quite right that every person has a right to vote. He will be able to challenge it before the court and there will be virtually no certainty whatever that the ballot will be lawful.
No, the only safe, unchallengeable form of ballot is the postal ballot, and that is why I suggest to your Lordships that it is very proper to accept this amendment, at least in principle.
§ Lord Maude of Stratford-upon-Avon
I intend to intervene only very briefly in this debate because I think I am probably in a very small minority on the Back-Benches on this side of the Committee. While I have the greatest respect for and sympathy with the intentions of my noble friends who have moved this amendment, I do not believe that it is the most practical way to solve the problems that they wish to solve. I very much prefer the amendment which my noble friend the Minister will move later. The amendment of my noble friend the Minister gives a reasonable opportunity to vote by post, and this will produce a mixed system, which others speakers have said is preferable.
There are several points which I would wish to bring to the notice of the supporters of the amendment of my noble friend Lord Beloff. First, I thought that he and, with respect, the noble and learned Lord, Lord Denning, skated very lightly over the difficulties of producing an effective, up-to-date central register of a large, nation-wide trade union. It is by the nature of it bound to be out of date. There is no way— even, I suspect, if one knows the vagaries of computers— by which even modern technology can produce a fully up-to-date central register in a very large trade union. But there is, I think, a much more important point. I fully understand the desire of my noble friends to avoid the kind of rigged ballot which produces unrepresentative, and in many cases extreme militant, officers and officials of a trade union, but what I think they have not taken into account is that many unions which have provision for workplace ballots do produce results which are unrigged and which are effective, and if postal balloting is compulsorily put in place of this then more problems will be created than solved.
Let us take, for example, the case of the National Union of Mineworkers, about which at this moment I can perhaps talk more freely than my noble friend the Minister might wish to speak. I have never heard it suggested, for example, that Mr. Arthur Scargill was elected president of the National Union of Mineworkers through any form of ballot-rigging, suppression, intimidation or what you will. I would say, with respect to his opponents, that he was elected because he had been a popular and effective regional leader, that he was by far the most competent, popular and obvious man for the job, and that none of his challengers appeared to match up to him. If I recall correctly, he was elected through pithead ballots with 269 a turnout of something like 80 per cent. With the best will in the world, nobody is going to tell me that a compulsory postal ballot on that occasion would have produced an 80 per cent. response. It would not have done: it would have produced something like a 30 per cent. or 35 per cent. response.
Now let us suppose that this amendment were carried and the Government inserted in the Bill a provision for compulsory postal ballots. Are they then going to go to the National Union of Mineworkers and say, "You have a system which produces an 80 per cent. turnout in a ballot which has not been challenged: we are going to substitute for it one that produces a 30 per cent. or 35 per cent. turnout, and this is in the name of freedom and democracy for the individual"? I think myself that they would get a pretty dusty answer. If this matter were taken to the courts or to the members of the National Union of Mineworkers, or even to the Association of Conservative Trade Unionists, I do not believe that the response would be very friendly. It seems to me that this is the wrong way to go about it. I believe that now, at last, the Government— and I think it was overdue that they did— have got the right answer. I hope the Committee will prefer it to this amendment.
§ 10.55 p.m.
§ Lord Harris of Greenwich
I understand the position of the Opposition as far as this amendment is concerned. I think that their position is entirely logical. They are opposed to this Bill in every aspect, as they were opposed to the last trade union Bill in every aspect, and the one before that as well. Therefore their position, if I may say so, can be described as very clearly defined indeed.
But what of the Government? They say that proper elections must take place for trade union executives, and they have brought this Bill forward. Indeed, it has been made absolutely clear that the Government had, in their view, a mandate for it. I think, if I may say so, that is clearly true. But they have, in introducing the Bill, proposed a system of voting which is almost by definition going to fail. They have in fact— it has been made quite clear— decided to oppose the one system of voting (by secret postal ballot, sent to a trade union member's home address) which can be guaranteed to work effectively.
This, as has been pointed out, was the system of voting which was introduced by the Electrical Trades Union after the great ballot-rigging scandal of 1961. They now have a computerised central list of members and they do not find it an intolerable burden, as has been made clear, and all ballot papers are issued on the basis of that central, national list.
It is worth referring, in the context of the Electrical Trades Union, to the views of Mr. Frank Chapple on the Government's proposals, for a very obvious reason. With the greatest personal courage, it has to be said, together with Mr. Cannon and Mr. Byrne, he exposed the Communist Party's conspiracy against his own trade union. He knows, on the basis of personal experience, how the ballot riggers operate, and he has said the following about the Government's proposals which we are considering at the moment. We have been reminded of the remark by the noble Lord, Lord 270 Beloff. Perhaps I may summarise it as follows:Workplace ballots are too easily open to intimidation of the voters, to improper use of discarded ballot papers, to phoney returns and a variety of other illicit behaviour.'That is the view of a trade union leader who has had most direct experience of illicit behaviour in trade union elections in this country.
What is the Government's answer to that and to the concern which has been expressed by many Conservative Members of another place to Conservative trade unionists and to members of my own party? They have, I think, given two answers and we have heard some suggestion of this in the speech we have just listened to from the noble Lord, Lord Maude of Stratford-upon-Avon.
First, it is said that it would be far too complicated, far too difficult. But the electricians have succeeded in creating just this computerised national list which makes it possible to hold free and honest trade union elections. I find it extremely difficult to understand why, if this can be done in one major trade union in this country, it is quite impossible for it to be done in the remainder of the trade union movement.
Of course, the electricians' union is undoubtedly an efficient one; it is an efficiently administered organisation. But why should trade union members put up with possible malpractice so far as union elections are concerned, simply on the grounds that their own unions are not as efficiently organised as the electricians' union?
Secondly, it is said that workplace ballots sometimes produce higher turnouts. The noble Lord, Lord Maude, said that just a few moments ago. I would immediately concede that in the case of Mr. Scargill, on the basis of the majority he had, he was undoubtedly honestly elected. It would be an absurdity to say that every trade union election is subject to malpractices of this kind. It would be a grotesque overstatement and I do not suggest it for a moment.
But what of the general secretaryship of the same trade union, where it was known there was going to be a much more finely balanced result than was the case when Mr. Scargill stood for election? As we have heard from the noble Lord, Lord Marsh, a few moments ago, there have been the most direct allegations made by the opponent of Mr. Heath field, Mr. John Walsh, and we have been reminded of the character of the allegations: why a polling station in one case closed suspiciously early; why the figures for unused ballot papers— an essential part of the procedure— have not been issued; and why there was an abnormally high percentage of spoiled ballot papers.
I do not for a moment suggest today that I have clear evidence that there has been gross malpractice in the case of that election. That would be an overstatement. But I would say just this. The sort of practices described in this election, and in other trade union elections, are exactly the kind of malpractices which were alleged year after year in the case of the electrical trades union and were vehemently denied at the time. It took five years of dedicated work by a small group of trade unionists, who were prepared to brave the most tremendous pressure that was brought upon them, to demonstrate that all those allegations were entirely justified.
271 I do not want to go through a whole list of other trade union elections. The point was made by the noble Lord, Lord Marsh, about the Transport and General Workers' Union general secretary's election which is taking place at the moment. Again, serious allegations are being made. All I would say to the House is this. Here are two of the key jobs in the British trade union movement, the general secretaryship of the National Union of Mineworkers and the general secretaryship of the Transport and General Workers' Union. They are two of the key figures on the General Council of the Trades Union Congress, and in both cases serious allegations have been made by trade unionists— not by the media, but by members of their own trade unions— that malpractices have taken place. I could give a number of other examples. I shall not go through the Civil and Public Servants where, again, suggestions of this character have been made.
What is the Government's answer to charges of this character? What do they say should be done, all this being so? We are told that the members concerned can go to the courts, and. of course, they can. But what we are asking individual trade unionists to do, if we reject the approach which is contained in this amendment, is to be a series of village Hampdens, as the Sunday Times put it: to take the whole onus and responsibility on their own shoulders, to go to the courts as individuals against the entire power of some of the largest trade unions in this country.
What about intimidation, which we all know perfectly well takes place in a number of trade unions? What sort of pressure can be brought to bear on honourable men of this character when they suspect that grossly improper practices are taking place? In 1961, when these allegations were being made, I was the personal assistant to the leader of the Labour Party, Mr. Gaitskell, and I remember at that time very clearly the degree of pressure that was brought upon some of the plaintiffs in that action to withdraw their case, because of the damage it was doing to the reputation of the British trade union movement. This pressure did not come from ballot riggers. It came from people who were genuinely worried about the damage that publicity of this sort was doing to the reputation of the trade union movement in this country. All I would say to the Committee is that it should recognise the kind of problems which will be faced in the future by men and women who believe that in their own trade unions improper practices of these kinds are taking place.
Finally, it is necessary for the Committee to recognise the possible scale of actions of this kind if members of trade unions are forced into the sort of position that Mr. Byrne, Mr. Chapple and Mr. Cannon were in 1961. I shall quote very briefly from the publication The ETU Trial which was presented by Mr. C. H. Rolph, with a preface by Mr. John Freeman, after this case had come to trial and the judge had formed a view and given his judgment. This demonstrates the kind of problem that faces individual members of trade unions if they are considering litigation of this kind. I am summarising basically the final speech made by the noble and learned Lord, Lord 272 Gardiner, who appeared as counsel for the plaintiffs in that case.After a visit to a Judge in Chambers"—he said—the Defence was delivered, consisting in the main of a general denial. Obviously everything depended on 'discovery' (i.e. on the production by the Defendants of the very evidence that would convict them). The Defendants' solicitors had shown the Plaintiffs' solicitors a 'vast stack' of about 30,000 documents and said 'look at anything you like'. And Mr. Haxell"—who was the principal defendant in the case—had told them that the required documents, contained in parcels or envelopes as dispatched from the branches of the ETU, were 'estimated to number hundreds of thousands'. Informal discovery went on, my Lord, right up to the eve of trial, and the problem for the Plaintiffs was to know what on earth to look at and what on earth to ask for… This has been an exceptionally difficult and messy case. A hundred and fifty-four witnesses have been called. Three hundred and two exhibits have been put in— of which even now I have no Copies of a hundred and twenty-nine".That is the kind of problem which faces honest men in the trade union movement when they want to challenge a trade union election. I wonder how many there are in the British trade union movement.
§ Lord Graham of Edmonton
I rise to oppose the amendment. I do not wish to use flowery language, or to use such words as "smear" or "innuendo". Nor do I wish to pray in aid what has happened in any place that I have read about in newspapers. I wish to use the simple credential that I have been a trade unionist all my life. I continue to be a member of a trade union. Many of the trade unions which have been referred to by name are the large trade unions which have attracted some publicity over these matters throughout the years. I am a member of a small union, the National Association of Co-operative Officials. My first trade union was the National Union of Distributive and Allied Workers, subsequently the Union of Shop, Distributive and Allied Workers, with which I still have an association. I confess that I am not so activist a trade unionist as I should like to be; but even my limited experience is probably greater than that of some of those who speak with great eloquence about what is wrong with our trade union movement. I do not say that with disrespect.
The amendment which has been tabled and to which the noble Lord, Lord Beloff, has spoken, has one simple proposition: no "ifs" or "buts-, no norms, no exceptions. Such elections shall be held by postal ballot. The noble Lord, Lord Beloff, went to great pains in moving this amendment to stress— I took it down— that elections would be the norm. He went on to point out that there would be exceptions. There are no exceptions here. The argument we have is that contained in his amendment and in the Minister's amendment. It centres on whether or not we are going to say to the whole of the trade union movement, in one fell swoop, "In future, there will be only one way in which you may continue to run your elections".
A great many safeguards have already been written into the Bill, and much has been said about the subject of secrecy, intimidation, et cetera. Account has already been taken of many of those aspects, and the point I wish to deal with now concerns the inflexibility and inconsistency of what has been said by the 273 Government and by the Government's supporters hitherto.
I should like to plead in aid a letter sent to the Minister by a body named the Council of Managerial, Professional and Allied Staffs. Its membership comprises the British Association of Colliery Management, the British Air Line Pilots' Association (a union which has won some notoriety because one of its former activists is the present Secretary of State for Trade and Industry), the Engineers' and Managers' Association, the Hospital Consultants and Specialists Association, the Health Visitors' Association, and the National Association of Co-operative Officials— my own organisation. They wrote to the Secretary of State on 9th December as follows:Like the Trades Union Congress to which all of us are affiliates, we believe the Bill to be misconceived. Nevertheless, it is clearly going to be enacted and so it should be amended where it is clearly defective. A major fault in the Bill in our opinion is the intention to lay down a single method of election of members to trade union principal executive committees. We believe it is dangerous for Government to seek to determine the internal arrangements of voluntary bodies to this extent. The proposed method is itself open to serious objection in that in any circumstances it will make principal executive committees more remote from their memberships and certainly less accountable. We say this while being entirely confident that the internal democratic procedures of our own associations, in which secret ballots play a significant part, will stand scrutiny by anyone".The point I want to make is that there is no method under the sun that can be watertight. Quite frankly, the postal ballot has a great deal of merit, but, as has been pointed out, it has also some demerits. Your Lordships will have to consider which is preferable.
When dealing with this matter in paragraph 18 of their Green Paper, the Government said:The Government is conscious that any legislation must take into account the wide variety and complexity of existing electoral arrangements".What on earth is wrong with that? I regret to say that noble Lords opposite who support this amendment will, if they press it, continue to stay in line with much of what this Government have done hitherto in taking the view that there is only one way of dealing with the situation.
My limited experience of the trade union movement tells me that there is a great deal that needs to be put right. The trade union movement collectively is aware of that and is taking its own steps. But what this amendment seeks to achieve is absolutely colossal and it would, in my view, be counter-productive. Surely our purpose is to produce legislation that is workable; legislation that is credible and which has at least a chance of getting off the ground. I believe this amendment would fail in those respects, and that is why I shall oppose it.
§ 11.14 p.m.
Earl De La Warr
I should like particularly to thank the noble Lord, Lord Graham of Edmonton, for his very thoughtful speech. We know very well that we are hearing from a trade unionist of great respectability and great expertise. We on this side of the Committee realise that many of us have not had the experiences which the noble Lord and some of his colleagues have had of trade union ballots.
Nevertheless, I should now like to refer, as I had intended to do all along, to the point first made by my 274 noble friend Lord Maude, when he declared his lack of agreement with this amendment. The first point he took up was the difficulty of getting members on the register. You do not have to be a trade unionist to know about getting people on to registers these days. Twenty years ago it must have been very difficult, indeed for Mr. Chapple, using a computer which, I should think, might have been half the size of your Lordships' House, to get all his members on to the register. Today, we all know perfectly well that we can do it on a computer not much bigger than the Dispatch Box, and it is a totally new and advanced technique.
I have said that I know nothing about getting trade unionists on to computers, but I think one might as well speak from one's experience. I know what it was like getting 1.25 million television subscribers on to a computer. It was jolly difficult; and, my goodness, did we not make some mistakes over the first two years, did not the customers squawk, and did we not get their accounts wrong? Of course we did, but as the years have gone on it has ceased to be a miracle, it has ceased even to be a challenge; it has become the norm to use these modern techniques to register one's subscribers, one's members or whatever it may be.
Let me go on from that very mildly technical point to suggest to your Lordships that when the noble Lord, Lord Graham, says there is just this one thing in this amendment, there are more points. There is reference to the latest available register of members, and that is what I want to centre on, because I have felt for years that it was as monstrous as it was ridiculous that huge unions should take all the power that they enjoy and in many cases not feel it was necessary, or perhaps not feel it desirable, to know the names and addresses of their members. I remember that in my own company, when there were local problems, branch secretaries used to come to my general managers and say, "Please do you mind telling us the names of our members?" I thought this was crazy, but it happened again and again.
So arising out of the postal ballot is the need to do something that surely is in itself an absolute essential for great power bodies: to know who their members are and where they live, even if it might mean that a great union were to find it suddenly finished up with 250.000 fewer members than it had quoted, and its card vote was thereby reduced. So in supporting this amendment with a quiet passion I want to draw attention to the fundamental mechanics that lie behind it implementation.
To move on, I spent some time last week talking to a man who had for many years been an industrial wrecker, and had worked for the Socialist Workers' Party. He has now, I suppose, in common parlance, turned gamekeeper. He has become an industrial consultant. He took me through all the things that he, as a wrecker, had done to manipulate elections. Many of them have already been mentioned, so I do not want to dwell upon them. There were the activists who collected tilled-in forms and, as he did, put hundreds of them down the lavatory, who ensured that known moderates did not always receive their papers. As to collecting— and this is one that we know well: discarded and unused ballot papers were filled in; papers were sent late. None of this is new to us, but it 275 was, for me, an experience to hear it coming from somebody who had actually done it. I can see nothing in this legislation that is going to stop abuses of this kind.
I think it would be quite improper to go into amendments that are yet to come to see whether there is anything in them which helps fill these gaps. That we will do when the time comes. The fact of the matter is this. When there are any intermediaries in a ballot, and those intermediaries— and I do not say that this is always the case— are people who are highly trained in subversion (and there are many of them), then the manipulations cannot be stopped other than by postal means. So my conclusion is that this Government, with their magnificent intentions, are missing a golden opportunity for which masses of people in the country and many, many trade unionists will be slow to forgive them. That is why I support this amendment so strongly.
§ Lord Campbell of Alloway
I oppose this amendment, the effect of which is to proscribe all workplace ballots and foist mandatory postal ballots upon the trade unions. It was wholly disingenuous of my noble friend Lord Belloff to suggest that this was— I took it down— "just a question of postal ballots being the norm, departures to be justified". If you look at the amendment, it is mandatory. It is "shall", without qualification. It was wholly disingenuous. I would ask this. Is this amendment truly necessary, in the light of the general encouragement given by the Government set of amendments, to resort to postal ballots? Noble friends on these Benches behind me may, of course, think otherwise. But can it be appropriate, I would ask your Lordships' Committee and my noble friends with me in these Benches in particular, that your Lordships' Committee should endorse what is nothing other than a woeful declaration of fundamental distrust in the trade union movement as a whole?
§ Lord Campbell of Alloway
That is what it comes to. It is a fundamental declaration of mistrust that the trade union movement is able to order the management of its own internal affairs on balloting. And would your Lordships not also consider that the backlash of justifiable resentment to such an over-interventionist approach would not only sterilise the effect of this amendment but could also work a very great mischief? And on the question of workability, is this amendment truly workable?
§ Lord Campbell of Alloway
Is it generally workable in that sense by all trade unionists today? Noble Lords say, yes, but we have heard from many of those experienced in the running of trades unions that, without the central register, this simply could not be worked. How could it, if one looks at the matter objectively? Some unions are able to work it, but the question is, according to this amendment, could it be applied generally to all trades unions today and work? I suggest that the answer is certainly, no.
§ The noble Lord, Lord Houghton of Sowerby— does my noble friend wish to speak?
§ Lord Mottistone
I am just suggesting that my noble friend does not know about the latest computers.
§ Lord Campbell of Alloway
I am grateful to my noble friend. Computers or not— and I do know a little bit about them— is there really any certain advantage to be gained? One has to look at this. If the answer to any one of these single questions is, no— and I suggest that the answer to all of these questions is, no— then as of today this amendment cannot but serve as a bludgeon. No political party in office, or one with any serious pretentions to office, could afford to embark upon such a course.
Has due account been taken of the fact that very few unions today could conduct full postal ballots, having regard to the absence of these central records of addresses and the state of the register? Has any thought been given to the unions which have a predominantly itinerant membership? Has due account been taken of the administrative and financial burdens? Unless, as is apparent from the reported cases, there is independent supervision at all stages, postal ballots are still wide open to malpractice and manipulation. Until such an independent authority is set up, and until the registers are not only properly kept but kept up to date with computers, the proposals in this amendment are plainly premature.
Furthermore, according to such information as is available, on average it would appear today that there is a far higher turn-out for the work-place ballots than for postal ballots— a fact apparently recognised by my noble friend Lord Beloff, but in fact—
§ Lord Beloff
Will the noble Lord give way? I did not recognise that fact. I do not believe it to be a fact.
§ Lord Campbell of Alloway
Let Hansard speak for itself. Certainly the reference to Soviet Union turnouts could surely not have made any valuable contribution to this matter.
This amendment lies in irreconcilable conflict with the spirit of the Bill in all its parts, which leaves a measure of self-regulation to trades unions; it conflicts with the concept of flexibility which permeates the Bill; and it lies in fundamental conflict with the set of Government amendments which are designed to encourage but not command the postal ballots.
In conclusion, in this irreconcilable conflict, ought we not to spread some bales of straw in the street of deliberation to try to muffle the drums of dissension, so that we may tread perhaps a little warily and avoid the man-trap of the over-interventionist approach, which so often— "Rubbish", I hear my noble friend say. Fair enough. Any noble Lord is entitled to his view; but I would seriously suggest that an over-interventionist approach leads to confrontation and that this savours of an over-interventionist approach.
But there is a middle way between the irreconcilables. It is perfectly plain that one day everything will have to be put on computers. That time has not yet arrived. I suggest it would be sensible to use the material in this debate so that thought might be given 277 as to how the records could be better kept. But at this time and as we debate this tonight this amendment is plainly premature and wholly unworkable.
§ 11.31 p.m.
The Earl of Gowrie
I must congratulate most warmly my noble friend Lord Beloff, who moved this amendment, on the elegant and persuasive way in which he argued the case for postal ballots.
I want to say in terms that there is no difference between the noble Lord and the Government on the value and desirability of postal ballots in union elections. As the Committee will have seen from the amendments we ourselves have put down on this subject, and as my noble friend Lord Maude of Stratford-upon-Avon reminded us in a brief and equally elegant speech, the supporters of this amendment are in a very real sense pushing at an open door. The Government wish to do everything practicable to ensure the spread of postal balloting.
Like the noble Baroness, Lady Cox, who I am sorry cannot be here today, my noble friend Lord Beloff and other supporters of this amendment, we believe that postal ballots are the best safeguard against intimidation and malpractice. Like them, we believe that wherever possible the union member should be allowed to cast his vote away from the distractions and pressures of the workplace. The amendments I shall be moving later in our proceedings are designed specifically to provide for postal voting in situations where intimidation is feared or malpractice has been proved. They are also designed to act as a powerful incentive for unions at large to move to a system of postal ballots. That is an objective we share with the noble Lords who have put forward this amendment.
Where we differ in terms of this amendment is, that all elections required by Part I must be conducted by post. May I say to the noble and learned Lord, Lord Denning, that we believe in postal ballots and in the workplace ballots. We do not, however, believe that it would he right to require unions to conduct elections by post in all circumstances.
With the permission of the Committee, I should like in just a few moments— and I am aware of the lateness of the hour— to turn to the detail of those amendments because I believe that they are very pertinent. However, before I do so, can I remind the Committee of the basic problems the legislation is designed to tackle. At the moment most union elections are conducted, not at the workplace, but by a system of voting at branch meetings. It is not the case that we are seeking to reform a system of workplace balloting. Most unions have not yet progressed as far as workplace balloting. Many unions do not have any form of individual ballot at all; in some, votes are taken by a show of hands with no attempt to secure secrecy.
Furthermore, most unions still operate voting systems which effectively deny the opportunity to vote to everyone except the dedicated activist who is prepared to sit through hours of ideological debates late at night— I sometimes know how they feel!—in a union office miles from any member's place of work before a vote is taken. It is this sort of voting system 278 which produces the polls of 2 per cent. and even less in elections in ASTMS, for example. Of course the pitiful number of votes actually cast is usually masked by the use of the block vote. If 10 members actually vote, however small the majority, the result may be recorded in hundreds or even thousands of votes. As if by magic these ghostly forms of absent members tramp through an imaginary division lobby, no one out of step and everyone with but one thought in mind. With that sleight of hand, the actual result of the voting is distorted and the absence of any genuine test concealed. All this type of abuse will be swept away by the Bill.
But the Bill also has a positive purpose. It wants to bring union members with it. It wants to create the conditions in which there will be far greater voluntary participation in, and concern about, union elections. I want to make this point as clearly and as strongly as I can. I believe that the most urgent need and the most immediate and important task for this legislation is to raise the level of participation in union elections. Union leaders will be brought under democratic control only if more union members are able and willing to exercise their right to vote. It is vital that we do not overlook that simple point. Of course, it is important to guard against intimidation and malpractice, and that is what our amendments are designed to do. But it is the sheer difficulty and inconvenience of casting a vote which keeps the vast majority of union members away from the polls at the present time, not usually intimidation.
This Bill will establish the basic democratic principles of voting in secret; voting by the use of a ballot paper; and voting without interference or constraint. It provides for one man one vote. It ensures that every union member can vote without direct cost to himself, and in a way which is convenient to him. These are simple and minimum requirements, and the really remarkable thing, it seems to me. is that this Bill will guarantee them for the first time. That is a measure of the transformation the Bill will require trade unions to make in their electoral arrangements. That is precisely why noble Lords opposite, whose party is financed by the union high command, oppose it. In practical terms, the Bill means that unions are compelled to move from branch meetings, the antiquated way of electing the union executive, to individual postal or (and that is the important word) workplace ballots.
The issue between my noble friend Lord Beloff and myself is simply this. Are postal ballots or workplace ballots more likely to maximise the number of votes cast? Should the one, so to say, cancel out the other? I believe that even leaving aside the perhaps rather special case of the miners' union, with its turnout of 80 per cent. or more in pithead ballots— my noble friend Lord Maude talked about that— the evidence at present rather tends to favour the workplace ballot. For instance, even in the recent CPSA election the turnout was over 30 per cent. That is substantially higher than the average turnout in postal ballots, which rarely, if ever, exceeds 30 per cent., although I believe that it will in time. In the case of one major union, for the presidential election at the Royal College of Nursing in 1982 the turnout was just 11 per cent.
279 Surely, the important thing is the Bill's move away from the branch meeting to a mixed economy, so to say, of the workplace and the postal ballot. But in spite of the emphasis that I am giving to this, it is not the principal case that I seek to argue in connection with the amendment of my noble friend Lord Beloff. We are not concerned with the merits of the two systems in the abstract. We are concerned, so to say, with a dynamic rather than a static situation; a situation in which unions are now being required by law to make a fundamental change in their electoral procedures, where they are being required to change from the present discredited system of branch-based voting to a more democratic system.
My noble friend's amendment would provide that all elections required by Part I must be conducted by post and that the distribution, return and counting of the voting papers must be carried out by an independent body. There must. it seems to me, be a real risk that this legislation could become a dead letter if the leaders of the trades unions (who, unlike their members, are already implacably opposed to it) could turn to their members and claim, however falsely, that it simply was not possible for them to do all the complicated things that the legislation required— compiling a central list of names and addresses, and the rest. The truth is that the leaders will do everything they can to frustrate this legislation and frustrate their members' evident wish to make use of the rights that it provides. I say, in all seriousness, that we have a duty not to furnish them with the arguments they are seeking. We must not give them an easy target.
The opponents of this legislation, and of greater democracy in trade unions, have a vested interest in proving that industrial relations cannot be reformed by law and that trade union legislation is bound to be ineffective. So far, over five years, we have proved them wrong. And one reason we have proved them wrong is that none of the three Bills we put before Parliament since 1979 has been too prescriptive.We have not created new institutions which the trade unions can boycott. I believe that that is a risk my noble friend's amendment runs. We have avoided remedies and procedures which employers and union members are unwilling to use. We have not purported overnight to abolish practices which we know can be eliminated only over time. That is why our legislation has worked and that is why it is disliked so much by a certain kind of trade union leader. In their eyes, our legislation has not lived up to the received wisdom of the 1970s. So far it has confounded the expectations of the so-called voluntarists, who glibly argue that the law has no place in industrial relations, except, of course, to reinforce the power of union leaders. And to those who doubt that the 1980 and 1982 Acts have worked, I would say, "Look at the decline of the closed shop; ask the National Graphical Association, the Post Office Engineering Union and the National Union of Journalists whether the law is impotent". In each case, those unions have been forced to call off unlawful industrial action as a direct result of recourse to the law. That is a vindication of what we have called the step-by-step approach to industrial relations reform that we have followed since 1979 and which has been 280 consistently supported in your Lordships' House and in another place.
My noble friend wishes to take a giant leap. I sympathise with his aims, but I want to prepare the ground for them. What would be the reaction of those trade union leaders to this amendment if it were to reach the statute book? In the first place, I believe they would welcome the notion of an "independent body" responsible forthe surveillance of the distribution, return and counting of voting papers".Clearly, no existing organisation could possibly take this on. It would be well beyond the capacity of, for example, the Electoral Reform Society, which does no more than count the votes sent to it by a few trade unions. It does not send out voting papers, keep registers of voters, or supervise in any way the actual process of voting. To do all those things, and to do them for 400 trade unions, is possible, but it would be a formidable task. Therefore, we are talking of a new body, created by the Government, with powers to compel and to investigate.
That is the kind of body trade unions leaders know and understand. There is the focus for their opposition. There is the external, Government-created organisation to which they can say, "No". It would be so much easier than saying, "No" to their own members: and it would be so much easier to mobilise opposition within the trade unions themselves if the legislation had an interfering, bureaucratic face and a nose to be bloodied by an ostentatious campaign of non-co-operation.
In short, this amendment would give the trade unions the very opportunity that we have denied them since 1979— the opportunity to convince their members that what we are asking of them is excessive and unreasonable. It would take us straight back to the situation of 1971 when trade unions were able to persuade their members to boycott an entire Act of Parliament— in my judgment, a wholly reasonable one— and all the institutions created under it.
Therefore, I have no doubt that the trade union leaders who are so bitterly opposed to this legislation would prefer the approach of this amendment to the approach that we have taken in the Bill as a whole. They would far rather take on some quango, whatever its powers, than to seek to deny their members a right to a postal vote as the Government are proposing in their amendment. There can be no justification for any trade union refusing a postal vote in an election to any of its members who ask for one. We do not see why a union member should be required to apply for a postal vote again before each election, and I have an amendment to that effect later.
Trade unions will not be able to use the excuse that they do not know their members' addresses or that they lack the administrative capacity to discover their addresses. This amendment will mean that any union member whose union does not yet operate a fully postal ballot will be able to secure a postal vote as of right. It is not the Bill's only safeguard against intimidation, as I shall also be moving an amendment to make it explicitly unlawful for a union or its member or officials to interfere in any way with the right to vote. And there are other specific safeguards 281 for secrecy and for entitlement to vote already in the Bill.
Along with the noble Lord, Lord Marsh, we recognise that a right to an individual postal vote is not enough by itself. That is why I shall also be moving an amendment to Clause 3 to give the High Court a discretionary power, on complaint, to order a union to hold a fully postal ballot if a workplace ballot has failed to meet the democratic tests set down in this Bill. This means that if voting takes place at the workplace but the union fails to make proper provision for secrecy or fails to guarantee a free and fair opportunity to vote, or fails in some other way to protect democratic rights, the High Court will be able to say, "Enough is enough: a workplace ballot is clearly not satisfactory in this case: hold a postal ballot". In other words, trade unions will know that if they operate anything less than a fully postal ballot they will need to be doubly sure that their members can vote freely and effectively. Let me say to the noble Lord, Lord Harris of Greenwich, regarding the issue of intimidation, that if you want freedom under the law, you have sometimes to stand up to it. I have every confidence that union members will and do.
I have spoken at some length on this issue because it is a very important one and I know the deep feelings that it arouses on all sides of the Committee. I hope that I have said enough to make clear how much we share the objective of my noble friend and others who have put their name to his amendment. The difference between us is one of timing and method, not of purpose. But the issue of timing in this region of human life is a critical one.
The amendments that I shall be moving to this clause and to Clause 3 will I believe be a powerful incentive to the general use of postal ballots as well as providing further specific protection against intimidation or malpractice. I hope therefore in the light of what I have said that my noble friend will not press his amendment, because I have to say that, after the most careful consideration, the Government have concluded that it would not be wise at this time to be quite as prescriptive or to go quite so far as he proposes.
§ Lord Beloff
Before I answer the eloquent and persuasive speech of the noble Earl, I should like to reply to one serious point which was made by the noble Lord, Lord McCarthy, the noble Lord, Lord Graham, and I think one or two other noble Lords regarding the mandatory drafting of this amendment. I should like to make it plain that this is not inconsistent with the views which I earlier expressed about other forms of voting. It would be extremely difficult for Back-Bench Peers, without the resources which the Government have, to draft the kind of elaborate amendment expressing the kind of exceptions that might be made, the delays that might be necessary in order to allow the compilation of registers, and the various other practical points that rightly arise. That seems to me to be a matter for government.
The point of this amendment was to try to persuade the Government to say that they would in fact come back with a more elaborate amendment making such exceptions as might be thought proper to this 282 operation, delaying it perhaps, and so forth. It was only for that reason that we thought the Committee would prefer to be confronted with something quite simple and quite straightforward, upon which I think we have conducted a useful and valuable debate.
However, I am afraid that I am unable to be persuaded by the remarks of the noble Earl to withdraw the amendment, because it does not seem to me that he has gone far enough to assure those of us who hold the views which my noble friends and I do, that something of this kind will be produced at a later stage. The new argument, or relatively new argument, which he put forward with great eloquence, was that, in order to make the amendment ultimately effective, we would need an outside independent body to supervise these procedures. When it comes to the amendments of the noble Earl himself— to the Government amendments— I think that many of us would be inclined to suggest that their procedures would also require some outside monitoring, otherwise, as has been said, the burden on both individual unionists and the courts will he too great. Therefore, I do not think that the argument about requiring a new quango, if one wishes to use that word, is an argument which only holds in respect of the amendment.
I would have been more persuaded by the argument for a step at a time; for the leaders of those trade unions, other than those who are asking for this amendment, coming to some kind of agreement and acceptance, if there had been some indication in the course of this evening, or indeed earlier, from those who claim to be the spokesmen of the unions, that, though they did not like this particular device, they were generally with the Government in wishing to see progress from a branch to workplace ballot. But we have had no indication of any friendliness towards any aspect of this Bill from any speaker from the Opposition Benches, and in that I think they probably represent those on their side of the Committee who have not spoken.
There is a real division of principle, and in spite of what my noble friend Lord Maude said I have been fortified by the request from the Association of Conservative Trade Unionists to divide the Committee on this amendment in order to make their position clear. Therefore, I am afraid that I am obliged to proceed with the amendment.
§ 11.53 p.m.
§ On Question, Whether the said amendment (No. 21) shall be agreed to?
§ Their Lordships divided: Contents, 85: Not-Contents, 65.284
|DIVISION NO. 4|
|Airedale, L.||Brougham and Vaux, L.|
|Airey of Abingdon, B.||Broxbourne, L.|
|Amherst, E.||Carnegy of Lour, B.|
|Attlee, E.||Cottesloe, L.|
|Aylestone, L.||Craigmyle, L.|
|Bauer, L.||Craigton, L.|
|Beloff, L. (Teller)||Crathorne, L.|
|Boardman, L.||Croft, L.|
|Brabazon of Tara, L.||Cromartie, E.|
|Dacre of Glanton, L.||Mottistone, L.|
|Davidson, V.||Mowbray and Stourton, L.|
|De La Warr, E. (Teller)|
|De L'Isle, V.||Norfolk, D.|
|Denning, L.||Onslow, E.|
|Dulverton, L.||Orr-Ewing, L.|
|Elles, B.||Pender, L.|
|Evans of Claughton, L.||Perry of Walton, L.|
|Faithfull, B.||Perth, E.|
|Gardner of Parkes, B.||Portland, D.|
|Gibson-Watt, L.||Quinton, L.|
|Gladwyn, L.||Reigate, L.|
|Glanusk, L.||Renton, L.|
|Greenway, L.||Renwick, L.|
|Gridley, L.||Roberthall, L.|
|Halsbury, E.||Rochester, L.|
|Hankey, L.||Rodney, L. St.|
|Hanworth, V.||Davids, V.|
|Harris of Greenwich, L.||Saltoun, Ly.|
|Hooson, L.||Savile, L.|
|Hornsby-Smith, B.||Seear, B.|
|Houghton of Sowerby, L.||Sherfield, L.|
|Howard of Henderskelf, L.||Sidmouth, V.|
|Howie of Troon, L.||Stamp, L.|
|Hylton-Foster, B.||Swarm, L.|
|Kagan, L.||Taylor of Gryfe, L.|
|Kilmarnock, L.||Thomas of Swynnerton, L.|
|Lauderdale, E,||Thorneycroft, L.|
|Lawrence, L.||Tordoff, L.|
|McAlpine of West Green, L.||Tranmire, L.|
|Mackie of Benshie, L.||Vickers, B.|
|Marsh, L.||Winstanley, L.|
|Monson, L.||Wise, L.|
|Avon, E.||John Mackie, L.|
|Bellwin, L.||Long, V.|
|Belstead, L.||Lucas of Chilworth, L.|
|Bessborough, E.||Lyell, L.|
|Bruce-Gardyne, L.||McCarthy, L.|
|Caithness, E.||McIntosh of Haringey, L.|
|Campbell of Alloway, L.||MacLehose of Beech, L.|
|Carmichael of Kelvingrove, L.||Marshall of Leeds, L|
|Chelwood, L.||Maude of Stratford-upon-Avon, L.|
|Cledwyn of Penrhos, L.||Molson, L.|
|Cockfield, L.||Mulley, L.|
|Coleraine, L.||Nicol, B.|
|Collison, L.||Norwich, Bp.|
|Colwyn, L.||Ponsonby of Shulbrede, L.|
|Cork and Orrery, E.||Rochdale, V.|
|Cranbrook, E.||Shackleton, L.|
|Dean of Beswick, L.||Sharpies, B.|
|Denham, L. [Teller]||Skelmersdale, L.|
|Dilhorne, V.||Stewart of Alvechurch, B.|
|Eccles, V.||Stewart of Fulham, L.|
|Elliot of Harwood, B.||Stoddart of Swindon, L.|
|Elton, L.||Swinton, E.|
|Forester, L.||Taylor of Blackburn, L.|
|Glenarthur, L.||Trefgarne, L.|
|Gowrie, E.||Trumpington, B.|
|Graham of Edmonton, L.||Ullswater, V.|
|Gray of Contin, L.||Underhill, L.|
|Hailsham of Saint Marylebone, L.||Vaux of Harrowden, L.|
|Wedderburn of Charlton, L.|
|Henderson of Brompton, L.||Westbury, L.|
|Hives, L.||Whitelaw, V.|
|Home of the Hirsel. L.||Wynford, L.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 12 midnight
§ Lord Denham
I think it is probably generally agreed that we should end the Committee stage for today now. I therefore beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.
§ House adjourned at one minute past midnight.