§ 3.12 p.m.
The Earl of Gowrie
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(The Earl of Gowrie.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]628
§ [Amendments Nos. 22 to 25 had been withdrawn from the Marshalled List.]
§ Clause 2 [Requirements to be satisfied in relation to elections]:
Lord Wedderburn of Charlton moved Amendment No. 26:
Page 3, line 41, at end insert— ("Provided that this subsection shall be taken to be fulfilled in any case where the union has used its best endeavours to comply with its requirements in respect of any member who has unreasonably declined to co-operate in the steps necessary for such compliance.").
§ The noble Lord said: We come back to the Committee stage of the Bill with an amendment in the name of my noble friends and myself. Of course, it was an amendment to the Bill as it stood last week, before your Lordships, by a majority, inserted the new subsection (6) to the clause. So the amendment is now a proviso to a new requirement. The requirement is that the direct elections to the executive committee of trade unions should be held by postal ballot, and only in that way, without interference— we applaud those words, and await the Government's intentions on them—with the latest available central register, and with the surveillance of an independent body.
This amendment is full of uncertainty in its drafting. Indeed, the noble Lord, Lord Beloff, said last week, on 19th June, at column 256, that it was not what would be a more elaborate version which might be needed. He said:
I would not suggest, in moving this amendment, that there is only one way by which members of any organization— trade union or whatever—can 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 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".
§ So we face a strange situation of having a very clear— at any rate, in principle— subsection (6), stating one thing, and the noble Lord who moved it suggesting that the Government should come back with something rather more flexible. My noble friends and I are somewhat surprised that there has been no statement to noble Lords on the Government's intentions in this matter, more particularly since the debate proceeded not only on the basis of the noble Lord who moved the amendment suggesting that ultimately it would mean something different, but also on the suggestion that my noble friends and myself had advanced arguments which we had not made— not least, of course, the argument that there never are any malpractices in trade unions (which would be absurd) rather than the propositions that we had advanced, namely, that there were no proven malpractices sufficient to justify this or similar legislation.
§ However, we must do the best we can in the absence of a Government statement. No doubt the noble Earl, since I am making the point, would suggest that the request for a Government statement is something in the nature of sophistry. But I do not think my noble friends would agree, and I hope that that lapse from his customary standards will not be the kind of reply that we receive.629
§ However, there are two points that can usefully be made in the debate in Committee if we regard this amendment, as we must, as an amendment that now says, "Albeit that there must be postal ballots"—and there are the other subsections which the clause requires—"on two matters the Government should reconsider their attitude". We do not have to do any redrafting, although, of course, if the Government redrafted their attitude, they might need to come back with something more elaborate.
§ The first point relates to the obligation of the union and the second relates to the obligation of a member in going forward with the ballot. The first point is that the union should use its best endeavours to see that things are all right. This goes to the standard of care required of a trade union in regard to provision of the opportunity to vote, as required in this clause. This is an issue which I raised myself on three earlier amendments, and I took no objection to the Government's suggestion that it be debated on Amendment No. 22, where it would conveniently have fallen. But, of course, unhappily the Government's Amendment No. 22 has now fallen, and so it seems necessary and sensible to discuss it here.
The nub of the issue is this. Throughout the clause, if one looks for the duty of the union in regard to the fulfilment of what we say, and, indeed, I apprehend many of those experienced in industry outside our ranks, or trade union ranks, or even management ranks, would say, are very onerous and difficult duties to fulfil to the letter—.and if they are not fulfilled to the letter, then the election may well turn out to be a nullity— it appears to be either absolute, as in the provision of votes for those entitled to vote, or to provide opportunities governed by the words,
so far as is reasonably practicable".
Indeed, the words,
so far as is reasonably practicable",
appear again and again.
Noble Lords may think that,
so far as is reasonably practicable",
means that the Bill is demanding ordinary skill and care, that the trade union must not be careless in any way. If that is what is meant, that would be reasonable and we would support it in so far as there has to be an obligation.
But that is not what the phrase,
so far as is reasonably practicable",
means. It is a phrase which is well known to the law, mainly in the area of factory legislation and the legislation regarding safety at work. It is in those cases where the precise meaning has been worked out, and if I quote three very short sentences from Munkman on Employers' Liability— the leading work on that matter—perhaps it may become a little more clear.
At page 199 Munkman says this:
To do what is practicable involves more than taking reasonable care. 'Practicable' means that which is feasible, that which can be done".
Then on page 200 he says:
If, instead of saying that 'all practicable measures' are to be taken, (as in the Factories Act 1961) … the statute limits the
obligation to what is reasonably practicable (as in S. 29 of the same Act), this introduces a qualification; nevertheless, something more than reasonable care is still required".
He goes on over the page to say:
The courts will certainly not pay undue regard to expense where lives are at stake, but there is authority for saying that, in determining what is reasonable, it is right to take into account, in addition to physical difficulties, such matters as expense and trouble, and whether they are disproportionate to the result to be attained".
I should be happier, in a sense, to read more of those pages and would be ready to do so if the noble Earl so wished. However, that extract gives the core of the matter. It is more than reasonable care, it is what is sometimes called the "disproportionate test". But "best endeavours", which we would put in its place, has frequently been interpreted to mean that which is reasonable according to the ordinary, reasonable standards of skill and care.
§ On that first point we ask: will not the Government, on the basis of this amendment at any rate, reconsider the standard on the union side? This is not a matter which has been very heavily canvassed elsewhere. It is, therefore, a point which is very appropriate to your Lordships' House. On reflection, is not the right and fair standard for the union and its officials— getting the ballot papers to the right people, doing all the things that have to be done and now these unknown things with the postal ballot— that of reasonable care and not that which is reasonably practicable, which is, in a sense, one step up the ladder of care as the law lays it down?
§ I come to the second issue, which is now more important than ever in view of the new subsection (6) or the outline or unelaborated version of it that we have. The question has always arisen under Clause 2: who has to co-operate in these detailed and difficult procedures and who has to do what all round? What does the employer have to do? What does the union have to do? Here we come to asking, what does the member have to do? We say that, if a member has unreasonably declined to co-operate in the steps that are necessary for the ballot, then the union should be excused, certainly if it has taken reasonable care.
§ The noble Earl— and we will come back to this matter when discussing this clause, but I introduce it here in a sense to give him notice that I have taken careful note of what he said in the debates last week and on Second Reading— has mentioned Australia more than once as an analogous jurisdiction where there is legislation which is not the same but which controls union elections. It was interesting to note that the legislation in Australia requires certain obligations of members as regards co-operation and it is in many ways— and we shall see this later— much more flexible than the legislation before the Committee at present.
§ These ballots will require the co-operation of many people if there is to be a new external Government quango, as the noble Earl put it in the debate last week. What are the obligations of members in regard to that? Must they make sure that everybody has their latest address? How far do they have to go? The new ballots will require the co-operation of many people in real life. It is not an abstract nor an academic point; it is a very practical and serious issue. It is not enough for the Government to say that the court might release the union from liability in its discretion. The court here 631 does, of course, have a discretion in regard to enforcement orders, but we have not got to that point. What we are saying is that no union should incur liability where it has done that which is reasonable and where a member has not done all that he should reasonably do to co-operate. I beg to move.
§ Lord Denning
I ask your Lordships to reject this amendment. It was appropriate enough in regard to the Bill as it originally stood, but now we have the new subsection (6) it seems to me quite inappropriate. As regards the phrases, "reasonably practicable" or "best endeavours", they are always slipped in by lawyers when they want to try to get out of an obligation. They can get away with anything with clauses of that nature. So I would ask your Lordships not to accept this amendment.
The Earl of Gowrie
As the noble and learned Lord, Lord Denning, was kind enough to remind me, the Government were defeated on Amendment No. 21 last week. I shall have something preliminary to say about the consequences of that defeat and how we are seeking to proceed when I come to deal with clause stand part.
But I can say to the noble Lord, Lord Wedderburn, that whatever decisions are finally reached in relation to Amendment No. 21, it will be necessary to ensure that the Bill adequately covers the situation where a union fails to comply with the obligations owed to an individual member concerning the conduct of a ballot solely because that member makes it impossible through his actions for the union so to comply. I can certainly give the noble Lord, Lord Wedderburn, the assurance that we shall bear that point fairly firmly in mind, and I hope that on that basis he will agree to withdraw the amendment.
§ Lord Wedderburn of Charlton
I feel that we have kicked off to half a good start. The noble Earl has given us an assurance that he will consider— it almost sounded favourably, but at any rate consider— half of what we have said. I would beg him also to consider the standard of "best endeavours" and "reasonably practicable". The noble and learned Lord, Lord Denning, speaks with such experience on these matters because he knows how to put down any advocate who advances an argument on the basis of either of these phrases. We ordinary mortals have to deal with these phrases in order to advance arguments to the courts and they do— it is thought by some judges anyway— make a difference. I hope that the noble Earl will have a look at that as well. On that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 27 and 28 had been withdrawn from the Marshalled List.]
§ 3.27 p.m.
§ Lord Rochester moved Amendment No. 28A:
Page 3, line 41, at end insert—
(" (6A) The information to be supplied to every person who is entitled to vote shall consist of details of each candidate at the election concerned as supplied by that candidate on such basis as the trade union concerned may determine, provided that such basis shall afford to each candidate an equal opportunity to
communicate at reasonable length information relating to his candidature without any restraint on such information but so that no trade union shall be obliged by virtue of this subsection to publish information which is defamatory or would otherwise expose that trade union to civil or criminal liability.").
§ The noble Lord said: The purpose of this amendment is simply to ensure that every candidate for election to the principal executive committee of a trade union should have an equal opportunity to convey information to the electorate. It aims to see that those in privileged positions as existing members of a union's governing body do not, as a result of the greater opportunities they will already have had to publicise themselves, gain an unfair advantage over less privileged contenders for membership of that body.
§ The phrase "at reasonable length" is included to ensure that the burden placed on trade unions is not heavy. There is a proviso against a union being obliged to publish matter that is, for example, defamatory. There is no attempt to differentiate between so-called right and left wing candidates. The intention is simply to ensure fair treatment between existing and prospective members of the principal executive committee. It is, therefore, a perfectly straightforward amendment which I hope will command the support of members of the Committee generally.
§ So much for the substance of the amendment. There is one other thing of a general nature for me to say about it. I have had to alter it slightly from the form in which it first appeared on the Marshalled List so that it could be appended to new subsection (6) of Clause 2 following the Committee's acceptance last Tuesday of the amendment on postal ballots moved by the noble Lord, Lord Beloff. On that matter, as the noble Lord, Lord Wedderburn, has already said, we are at present all in a state of suspense. I noted what it was that the noble Earl, Lord Gowrie, said in relation to that matter just now. For my part I would have welcomed it had it been possible for some statement to have been made rather earlier so that this, and indeed other amendments to the clause could have been considered with the benefit of any information that the Government might have had to give us. I beg to move.
§ Lord Denning
I hope that the Government will view this amendment with sympathy. If we are to have postal ballots and just a list of names is sent out to all the members of the union, each member will say, "What does he stand for?" When I examined the ballot paper for the European Parliament I was glad I was told which political parties the individuals represented. If trade union members are simply sent a list of names which contains no description of the individuals and they have no knowledge of them, which many of them will not have, they will be completely ignorant as to which individual to vote for.
If amendments are made, it would be most useful when ballot papers are sent out with the names of the candidates on them, for information to be given quite fairly about each of the candidates, so that when people fill in their papers or mark them, they know the qualifications of the candidates before them.
§ Lord Renton
I, too, should like to support the purpose of this amendment, and I hope that the Government will say that they accept its purpose. 633 Following the amendment that was made to the Bill last week, for technical reasons this amendment may not be in quite the form in which it can be added to the Bill, but, as the noble and learned Lord, Lord Denning, said in support of what the noble Lord, Lord Rochester, said, this is a necessary purpose if we are to have democracy within the trade unions. Having been a supporter of the amendment last week, I venture to say that it is even more important with postal ballots that those who vote should be given clear notice of what each candidate has done for the union, or purports to do, or at any rate what he stands for.
§ Lord Hankey
I should also like to support this amendment. If we are to organise well-conducted trade union elections, it is very important that the people who vote should know who they are voting for, and an amendment such as this seems to me to be required.
§ Lord Gray of Contin
At the outset, I should like to say that I have considerable sympathy with the arguments which have been put forward by the noble Lord, Lord Rochester, and I have listened very carefully to the support which he has received from the noble and learned Lord, Lord Denning, my noble friend Lord Renton, and the noble Lord, Lord Hankey. Let me deal with the whole issue which we are considering at the present moment.
Election addresses clearly have an important contribution to make in ensuring that voters cast their votes in an informed and comprehending way. With this in mind we should all be prepared to encourage and support any efforts which unions themselves might make towards supplying voters with information about candidates.
However, for a number of reasons, we do not believe that it would be right to legislate for the provision of such information. In the first place the Government's whole approach in this Bill is, as your Lordships are aware, to lay down only those basic, democratic requirements which are clearly fundamental to the conduct of any democratic election. Within this framework, we have sought to leave unions with the maximum possible degree of freedom to make whatever arrangements they see fit. While I fully appreciate that the noble Lord's amendment would leave unions with a considerable degree of discretion about precisely what information was provided in election addresses, our view is that we would not be justified in imposing statutory requirements in this area. I think we must all accept that if this Bill comes to be seen by union members themselves not as one which lays down only basic, democratic principles, however we may decide to define those, but rather as one which lays down a host of requirements covering every aspect of the electoral process, then we shall have failed to achieve our objective. Union members will then see the Bill not as a measure about democracy, but rather simply as the imposition of detailed rules and regulations.
Moreover, there could, I think, be considerable practical problems for unions were the noble Lord's amendment to be included in the Bill. For example, while a number of unions provide for information about candidates to be supplied to members individually, 634 either by including this information on ballot papers or circulating it along with them, others arrange instead for this information to be published in the union's journal. Given the number of seats which have to be filled on the executives of some unions— for example, over 30 in the case of CPSA, and more than 60 in the case of NALGO— this seems both an acceptable and an understandable substitute for the supply of election addresses to individual members. In particular, in the light of your Lordships' Committee's decision on Amendment No. 21, it is important to note that these kind of practical problems in terms of the volume of material to be distributed are not necessarily any easier in unions which operate postal ballots. Presumably that is one of the reasons why the engineering section of the AUEW, which operates fully postal ballots, has nevertheless chosen to distribute election addresses through its branches when there are more than two candidates.
As I suggested at the commencement of my remarks, I have considerable sympathy with the arguments which the noble Lord has advanced. Nevertheless, I believe that those arguments are outweighed by the practical considerations involved, as well as by the undesirability in principle of imposing requirements on trade unions beyond those which are clearly essential. In the light of those considerations, I hope that the noble Lord may consider it appropriate to withdraw his amendment.
§ Lord Howie of Troon
I hesitate to intervene, because my memory might not be too clear on this question and I have not, in fact, looked back at the relevant Hansard. But in thinking back to one of our debates last week, what strikes me is that I had occasion to point out that the Government's proposals laid some restrictions on the kind of candidates who might come forward in elections. The Government said that they were not quite restricting candidates, but were placing limitations on candidates in order to ensure that inexperienced people and the like did not come forward. I am speaking entirely from memory and totally off-the-cuff, and I might be wrong, though I do not think I am. If my impression of the Government's interest in candidates is right (and I think that it is right that the Government, with their views, should be interested in candidates), surely this is the kind of amendment which the Government ought to welcome.
This amendment indicates that trade union members should have the fullest possible information— and the Government cannot possibly be opposed to that type of thing— and the kind of information which would be available would be exactly that which I seem to recollect the Government wanted the other evening; that is, information as to the suitability and, in particular, the experience of candidates. As I said, I speak entirely from memory and I have not looked at the appropriate Hansards, but I propose to do so as soon as I sit down. I hope that the Government will revise the very unwelcoming view which has been proposed in the last few minutes.
§ Lord McCarthy
It may be the case, as my noble friend Lord Wedderburn says, that we begin with a certain degree of agreement with the Government, 635 because we agree with everything that the noble Lord, Lord Gray of Contin, has said. To attempt to specify in the kind of detail in which this amendment does what should go into election addresses, of what length they should be, or that they should be of reasonable length, not defamatory, and so on, would be regarded by trade unions as an unjustifiable degree of over-precision in attempting to regulate their behaviour. Although I am bound to say in defence of the noble Lord, Lord Rochester, that this amendment is better drafted and clearer than the one over which we had all the troubles the other day, in the name of the noble Lord, Lord Beloff. Nevertheless, it is a little over-precise, and it raises all kinds of practical problems, including those practical problems which unions would have if they were given the job of supplying election addresses to the specifications in a provision of this kind. Therefore, in general terms we agree with the Government.
It is difficult to agree too much with the Government, however, and I want to use this moment to say this, since we still have no real idea how any of the many amendments we are putting down are going to fit eventually into the redrafted Clause 2 in the light of the amendment passed the other night. I say to the Government that they are treating us a little hard not to give us any idea what they are going to do with the shambles of Clause 2 until we come to the Question, Whether the clause shall stand part? It is difficult for us to know what the Government are thinking in relation to our amendments, or for the Government to answer in relation to our amendments, until they tell us what they intend to do with this clause. I hope the Government will try to tell us something before we reach the Question, Whether the clause shall stand part?
One of the problems which arise in relation to this amendment and which arise as a result of the amendment we passed the other day is that we now have an unknown amount of money which presumably the Government expect to find so that all the postal ballots, with or without things of this kind, can be paid for. Bearing in mind the cost of ballots at the moment to those unions which operate postal ballots, I calculate that if all the unions operated postal ballots and they all decided to ask for Government funds in order to finance them, something between £2 million and £3 million a year would be required.
If we were to extend it to election addresses, then considerably more than that would be required. Even then, from experience with the unions outside the TUC who have used the certification officer and the Government scheme we know that the money provided under that scheme does not fully cover the cost of postal ballots, and it does not fully cover the cost of providing election addresses. Quite apart from the fact that this is over-regulation, and quite apart from the fact that it creates all kinds of practical problems, it would also represent a significant increase in costs which the present scheme would not cover. Therefore, we agree with the Government.
§ Lord Howie of Troon
I have found the reference to the earlier matter I raised. It appears in the Official 636 Report for 19th June at column 201. The noble Earl, Lord Gowrie, was saying:The Bill allows unions, so long as they act within the rules, to require, for example, that candidates for the governing body must have been members of the union for some minimum period of time.If the Government are prepared to tamper with the requirements of candidates in that respect, they can surely accept what the noble Lord, Lord Rochester, has put forward without any hesitation.
§ Lord Gray of Contin
Before the noble Lord, Lord Rochester, replies to the debate, may I just correct the noble Lord, Lord Howie of Troon? The Bill does not do what the noble Lord suggests that it might do. It merely allows unions to restrict candidature through their own rules if that is what they wish to do. The Bill is entirely permissive in this repect; it is not mandatory. Might I also say that I am glad to have the support for our view from the noble Lord leading for the official Opposition. The occasions on which we find ourselves in agreement are relatively few, and I am glad that on this occasion at least we are of like mind.
§ Lord Rochester
I am grateful to those noble Lords who have taken part in this brief debate. I am particularly grateful to the noble and learned Lord, Lord Denning, whose powerful support has been most welcome. I thank also the noble Lord, Lord Renton, for his agreement, at least in principle, to what this amendment has in view. Other noble Lords have spoken in its support. Even the noble Lord, Lord McCarthy, whose opposition to it was, I suppose, predictable, seemed to express some qualification, shall I say, to that opposition.
The difficulty as I see it is that we are all in a state of suspense. We do not yet know whether the Government are prepared to accept in principle, at least, the decision of the Committee in relation to Lord Beloff's amendment last week. We do not know whether they are proposing to bring back some amendment in terms not altogether dissimilar from what would have been Amendment No. 22. We do not know whether there will be some quite different, alternative proposition placed before us. We have to act as the Bill is now before us.
This amendment has not gone into any great detail. Its terms are pretty wide. It does not seek to impose any very severe constraints on trade unions. In all the circumstances, I feel that, having regard to the expressions of support that I have received from all parts of the Committee, I should press this amendment to a Division.
§ 3.48 p.m.
§ On Question, Whether the said amendment (No. 28A) shall be agreed to?
§ Their Lordships divided: Contents, 34; Not-Contents, 157.638
|DIVISION NO. 1|
|Amherst, E.||Banks, L.|
|Attlee, E. [Teller.]||Beloff, L.|
|Aylestone, L.||Burton of Coventry, B.|
|Denning, L.||Houghton of Sowerby, L.|
|Diamond, L.||Howie of Troon, L.|
|Donaldson of Kingsbridge, L.||Lloyd of Hampstead, L.|
|Ezra, L.||Mayhew, L.|
|Falkland, V.||Rochester, L.|
|Grey, E.||Rugby, L.|
|Grimond, L.||Sainsbury, L.|
|Hampton, L. [Teller.]||Seear, B.|
|Hankey, L.||Seebohm, L.|
|Hanworth, V.||Stedman, B.|
|Harris of Greenwich, L.||Taylor, L.|
|Hayter, L.||Tordoff, L.|
|Hirshfield, L.||Walston, L.|
|Hooson, L.||Winterbottom, L.|
|Airey of Abingdon, B.||Home of the Hirsel, L.|
|Alexander of Tunis, E.||Hood, V.|
|Ampthill, L.||Hylton-Foster, B.|
|Annan, L.||Ilchester, E.|
|Ardwick, L.||Irving of Dartford, L.|
|Avon, E.||Jenkins of Putney, L.|
|Bauer, L.||John-Mackie, L.|
|Belhaven and Stenton, L.||Kaberry of Adel, L.|
|Belstead, L.||Killearn, L.|
|Bessborough, E.||Kilmany, L.|
|Birk, B.||Kinloss, Ly.|
|Bottomley, L.||Kinnaird, L.|
|Bowden, L.||Lane-Fox, B.|
|Boyd-Carpenter, L.||Lauderdale, E.|
|Briginshaw, L.||Leathers, V.|
|Brockway, L.||Listowel, E.|
|Brookes, L.||Lockwood, B.|
|Bruce of Donington, L.||Long, V.|
|Cameron of Lochbroom, L.||Longford, E.|
|Campbell of Croy, L.||Lovat, L.|
|Cledwyn of Penrhos, L.||Lovell-Davis, L.|
|Cockfield, L.||Lucas of Chilworth, L.|
|Collison, L.||McAlpine of Moffat, L.|
|Cooper of Stockton Heath, L.||McAlpine of West Green, L.|
|Cork and Orrery, E.||McCarthy, L.|
|Cottesloe, L.||McFadzean, L.|
|Darling of Hillsborough, L.||Maude of Stratford-upon Avon, L.|
|David, B.||Merrivale, L.|
|Dean of Beswick, L.||Mersey, V.|
|De Freyne, L.||Mills, V.|
|Denham, L. [Teller.]||Molson, L.|
|Dilhorne, V.||Morris, L.|
|Donnet of Balgay, L.||Mountgarret, V.|
|Drumalbyn, L.||Mowbray and Stourton, L.|
|Eccles, V.||Mulley, L.|
|Effingham, E.||Munster, E.|
|Ellenborough, L.||Murton of Lindisfarne, L.|
|Elliot of Harwood, B.||Norfolk, D.|
|Elton, L.||Northchurch, B.|
|Elwyn-Jones, L.||Nugent of Guildford, L.|
|Ennals, L.||Onslow, E.|
|Ewart-Biggs, B.||Oram, L.|
|Faithfull, B.||Orkney, E.|
|Fisher of Rednal, B.||Pender, L.|
|Forbes, L.||Plummer of St. Marylebone, L.|
|Fraser of Kilmorack, L.|
|Gainford, L.||Ponsonby of Shulbrede, L.|
|Gaitskell, B.||Porritt, L.|
|Gallacher, L.||Portland, D.|
|Gibson-Watt, L.||Rankeillour, L.|
|Glanusk, L.||Reigate, L.|
|Glenamara, L.||Renwick, L.|
|Glenarthur, L.||St. Aldwyn, E.|
|Gormanston, V.||St. Davids, V.|
|Gowrie, E.||Sandford, L.|
|Graham of Edmonton, L.||Savile, L.|
|Granville of Eye, L.||Seafield, E.|
|Gray of Contin, L.||Selkirk, E.|
|Gridley, L.||Sharples, B.|
|Hailsham of Saint Marylebone, L.||Shaughnessy, L.|
|Simon of Glaisdale, L.|
|Hale, L.||Skelmersdale, L.|
|Halsbury, E.||Somers, L.|
|Hatherton, L.||Stamp, L.|
|Henley, L.||Stewart of Alvechurch, B.|
|Stewart of Fulham, L.||Underhill, L.|
|Stoddart of Swindon, L.||Vaizey, L.|
|Stone, L.||Vaux of Harrowden, L.|
|Strabolgi, L.||Vickers, B.|
|Strathcona and Mount Royal, L.||Vivian, L.|
|Wallace of Coslany, L.|
|Strathspey, L.||Ward of Witley, V.|
|Sudeley, L.||Wedderburn of Charlton, L.|
|Swinton, E. [Teller.]||Wells-Pestell, L.|
|Taylor of Blackburn, L.||Westbury, L.|
|Taylor of Mansfield. L.||Whitelaw, V.|
|Terrington, L.||Wise, L.|
|Teviot, L.||Wootton of Abinger, B.|
|Thorneycroft, L.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 3.58 p.m.
The Earl of Gowrie moved Amendment No. 29:
Page 4, line 8, at end insert ("(any inaccuracy in counting being disregarded for the purposes of this paragraph if it is accidental and on a scale which would not affect the result of the election).")
§ The noble Earl said: I think that that last Division gave a whole new meaning to the phrase "the rainbow alliance". We shall have to send a note to Mr. Frank Field.
§ I can speak to this amendment very briefly. As originally drafted, the Bill makes it an absolute requirement on the part of the union to count the votes cast in an election accurately. The reality is that if some trivial inaccuracy is complained of to the courts, they would almost certainly dismiss it as de minimis. Nevertheless, to avoid any scope for unnecessary legal actions, the amendment now makes it explicit in the Bill that any inaccuracy in counting is to be disregarded if it was both accidental and on a scale that could not affect the result of the election. This is a small, but sensible, change and I commend it to the Committee.
§ Lord Wedderburn of Charlton
This may be as far as this curious alliance goes, but my noble friends and I have some feeling of joy in this amendment; and it is necessary to say two things to explain why that is so. This amendment touches upon a large number of other matters. First, we note the Government's argument that although it might be said that the court would do this anyway, and therefore the amendment could be unnecessary, there is a doubt, and so the Government wish to make explicit what it is they want to be made clear and not rely on that argument, no doubt, to avoid unnecessary litigation. We hope that the Government will adopt that attitude in all the other cases where there is doubt and where there is reasonable doubt. We hope that they will not say, "It is unnecessary", but will agree to make things explicit.
Secondly, I return to my argument on a previous amendment. The difference between me returning to my previous arguments and the Government returning to their arguments on the ILO Convention, as they have done earlier today, is that I have several decisions in my favour and they have one decision against them. With the greatest of respect to the noble and learned Lord, Lord Denning, there have been many decisions, and not all of them can have been wrong. There is a difference between the duty to do that which is reasonable, which is precisely the same as 639 avoiding that which is accidental and is the ordinary standard of care, and the obligation to do all that which is reasonably practicable. The amendment does not read—and we are glad to see that it does not read—that the inaccuracy is disregarded if there is no failure to do all that is reasonably practicable. It reads:if it is accidental and on a scale which could not affect the result".We are pleased that the Government here adopt the language that we say should be the language of the clause. In adopting it, they have done so for those who are counting the votes; and we hope that this will be another spur to them to reconsider (and I appeal to noble Lords so to consider) this as a very practical and very important matter for ordinary, especially voluntary, trade union officials who are going to have to make this system work. Most people will want to do so because they want to see the organisation work. If their duty is to do more than to take reasonable care, that is not a reasonable legal obligation to put upon them. The Government are very sensible here and we very much hope that they will take regard to their own precedents in this matter of duty and of care. We support the amendment.
§ Lord Howie of Troon
I join my noble friend on the Front Bench in welcoming this and I would ask the noble Earl the Minister to think hack to the very brief debate that we had the other evening on the amendment of my noble friend Lord Wedderburn, Amendment No. 20, which extended the same kind of clemency to a rather wider area of the ballot. While welcoming this amendment from the Government, may I ask whether they could look again at my noble friend's Amendment No. 20 and think in terms of extending the same clemency over a rather wider area than they have in this amendment?
The Earl of Gowrie
I do not want to seem ungrateful to the noble Lord, Lord Wedderburn, or to the noble Lord, Lord Howie of Troon; but I suggest that perhaps they are pushing their luck a little.
§ On Question, amendment agreed to.
§ Lord McCarthy moved Amendment No. 30:
Page 4, line 8, at end insert—
("( ) A union does not contravene subsections (6) or (7) of this section where it uses its best endeavours to prepare for the ballot in compliance with those subsections and the contravention is wholly or mainly caused by the act or omission of an employer who knows or ought to know that his act or omission is likely substantially to increase the difficulty encountered by the union in effecting such compliance.").
The noble Lord said: I hope sincerely that this is not the end of the rainbow because this is a serious amendment which we put forward in a very serious way. The object of the amendment is to ensure that the union in carrying out its obligation under Part I will not contravene any of subsections (6) or (7)—which really constitute the obligation placed upon it in order to carry out the ballot—if they can demonstrate that they have used their best endeavours to prepare for the ballot in compliance with those subsections, and that the contravention. if any contravention there be—and this is a direct quote from the amendment—
is wholly or mainly caused by the act or omission of an employer … substantially to increase the difficulty encountered by the union in effecting such compliance".
§ In other words, we are saying that if it is for some reason which a union can demonstrate to the court, if for some reason which is the consequence wholly or mainly of an act, or the omission of an act, by the employer and not the union, then the union should not be liable. It seems to me that this amendment, important though it always was to us, is more important in the light of what I believe—and I am sorry that I have to say this again—we are going to discover on the question whether the "clause shall stand part" when the Government tell us what they are putting in that part of the Bill. The Government are now saying that if it is not entirely (because we do not yet know whether there are going to be exceptions) the case that there will be no workshop-based ballots, certainly in the great majority of cases there will be ballots taken by post. There may be some workshop-based ballots, but by and large there will be ballots by post.
§ In that case, it is extremely important for the union if it is to discharge its obligations under subsections (6) and (7) to get every conceivable co-operation from the employer. It is well known to the Government, it is well known to anyone who knows anything about modern trade union labour relations, that the great majority of trade unions in this country obtain the use of the employer who deducts trade union dues at source through the device known as the "check off". Something between 70 per cent. and 80 per cent. of trade union dues now are deducted at source through the check-off. This means that the trade union is completely dependent upon the employer for telling them when people are in compliance or out of compliance, in arrears, whether they have resigned from the union, or for any other reason whether they are eligible either to be members, to remain members or to stand in elections.
§ Most employers who have good relations with unions give facilities for the compilation of trade union registers. Nevertheless, it has been accepted (and shown in recent research by Undy and Martin) that any union which habitually uses the ballot system usually has something like between 20 per cent. and 25 per cent. of the number of members who, in principle, are entitled to ballot not actually in a position to receive the ballot paper because the register is inaccurate. If this is because of some accident, then it is nobody's fault. If it is because of some neglect on the part of the employer, then in the terms which we are specifying in our amendment we say not that the employer should be liable, but that the union should not be liable; that the union should be able to say in court that any maladministration of that particular ballot was the result of something which happened for which the employer was responsible.
§ Strangely enough, although the Government in this Committee the other night would not accept this argument, the great argument in the past in trade union affairs for voting at the branch and for voting by show of hands was not that it could be manipulated but that it could not be manipulated; that if you had a card check which showed the people in compliance, and if those in compliance and only those in compliance were allowed to vote, and if that vote was recorded and if that vote was published in the journal, the result was incontestable. This was the principle. 641 There could not be a contest against that decision. That was moved away from by most trade unions because of the very small number of workers who participated in the voting. Therefore, unions have moved towards workplace-based ballots where, once again, they are dependent upon the employer for an accurate register. Now, they are to be pushed by the new clause in the Bill more and more towards postal ballots where, once again, even more, they will be dependent upon co-operation by the employer.
§ All that this amendment is seeking to say is that if the employer, perhaps by no fault of his own, is responsible for an inaccurate register or in some other way failing to comply with the provisions of subsections (6) and (7), then the union should escape liability. I beg to move.
This is an interesting amendment. I have a strong feeling that it is not necessary. This amendment is similar in some respects to Amendment No. 26 which has been debated already during the Committee stage. I think that I can therefore be very brief. Again, the concern is to protect unions from liability where breaches of balloting requirements in Clause 2 are occasioned by a third party. Although the third party in question in this case is an employer rather than a trade union member, the test of reasonable practicability provided by the Bill as originally put before your Lordships operates to protect the union in the same way. Any requirement in Clause 2, as originally drafted, which could possibly be hindered by an employer's behaviour is qualified by the test of reasonable practicability. In the context of a postal ballot, which the noble Lord has mentioned, and which was envisaged by the amendment of the noble Lord, Lord Beloff, it is of course very difficult to envisage how any act or omission of an employer could possibly hinder a trade union in carrying out that ballot. Nevertheless, I certainly repeat the assurance that my noble friend mentioned to the noble Lord in the context of Amendment No. 26: namely, that we shall bear fully in mind in considering our response to the amendment of the noble Lord, Lord Beloff, the need to ensure that unions are not liable for the acts or omissions of third parties outside the union. On that basis, I hope that the noble Lord, Lord McCarthy, will agree to withdraw his amendment.
§ Lord McCarthy
I am very sorry that the Minister felt that he had to respond in that way. It is not satisfactory at all. We have had the noble Earl, Lord Gowrie, coming to the Dispatch Box on the previous amendment and in effect criticising, as we have done, and as my noble friend Lord Wedderburn has done, the effectiveness, the utility and flexibility of the phrase "reasonably practicable" and putting another phrase in its place. We have said, and my noble friend Lord Wedderburn from this Dispatch Box has said, that if the Government were to spatter all over the Bill the phrase which they have just put into an amendment in place of the phrase "reasonably practicable", we would very much like that and perhaps would not need amendments of this kind.
However, that is not what the Government have offered. On the contrary, on this occasion the 642 Government have said that in this very important area where an employer could create a liability for a union they stand pat on their original phrase. Indeed, the noble Lord who replied said that first, he does not think it could conceivably happen that an employer could put a union into a position of this kind; and, secondly, that when it does happen it is covered anyway. I do not think that he has covered either way and I think we will have to press this amendment to a Division.
May I come back to the noble Lord, because we are on a very important amendment. There is of course an underlying thread running through the amendment of the noble Lord to this part of the Bill: namely, that Clause 2 imposes requirements concerning the conduct of union elections which are too severe and which are thus unjustifiable. In moving the Government amendment which we have just debated, my noble friend referred to the specific instance where the Bill as originally drafted might have been too onerous on trade unions and where we have accordingly made a change. However, I have to say that beyond this change we see no case at all for the relaxation of the requirements of Clause 2. As has been explained many times, these requirements do not constitute, whatever the noble Lord may assert, a detailed catalogue of rules and regulations; rather they constitute only the basic democratic principle which should always exist in any free and fair election.
§ Lord Wedderburn of Charlton
Before the noble Minister resumes his seat, will he answer a specific question on this amendment? It is part of the Government's case that the union is always protected by the duty to do only that which is reasonably practicable. The primary duty under Clause 2(1), which I apprehend will not change, is to ensure entitlement to vote. Clause 2(1) states:Entitlement to vote at the election must be accorded equally to all members".If a list from an employer was faulty and if the union relied on that, where in the Bill—in which subsection, in which line of the Bill—could it find a defence based on "reasonable practicability" for that failure, which would not, in anybody's language, he its fault but that of the employer? Which subsection gives the union a defence?
The Earl of Gowrie
I think that my noble friend tried to meet the points made by the Committee in that this is an area which will be affected by the Government's response to Amendment No. 21. I think it would be rather unreasonable, therefore, to press it to a vote at the moment. I have every confidence that the Government would carry such a vote but it would seem to me somewhat of a distraction on the time and resources of the Committee to have a vote on a speech given by my noble friend which was, I thought, highly emollient.
§ Lord Howie of Troon
None of us is anxious to take up the time of the Committee unreasonably; but I thought that in the first reply from the Front Bench, the noble Viscount, Lord Long, gave some kind of reassurance to those on this side of the Committee. I refer not to his opening words, when he said that the 643 amendment was not necessary—that usually arouses the utmost suspicion—but later on, when he seemed to give some kind of reassurance. I think the noble Earl, Lord Gowrie, when he used the word "emollient", was referring to the same thing. Will the noble Viscount repeat the emollient part so that I can hear it?
We seem to be getting more interested in this amendment. The noble Lord has asked me to repeat the second part of my speech. I can only say—I repeat the whole paragraph so that it makes sense—that in the context of the postal ballots envisaged by the amendment of the noble Lord, Lord Beloff, it is of course very difficult to envisage how the act or omission of an employer could possibly hinder a trade union in carrying out that ballot. Nevertheless, I certainly repeat the assurance that my noble friend mentioned to the noble Lord in the context of Amendment No. 26: namely, that we shall bear fully in mind in considering our response to the amendment of the noble Lord, Lord Beloff, the need to ensure that unions are not liable for the acts or omissions of third parties outside the union. I hope that that repeats what the noble Lord wanted to hear.
§ Lord Rochester
The difficulty of the Committee lies precisely in the point mentioned by the noble Earl, Lord Gowrie, as I understood it, that we do not yet know what the Government's response is going to be to the major amendment in the name of the noble Lord, Lord Beloff, which was accepted by the Committee the other night. Like him, I wish that we did not have to waste any more time and that we could proceed to a discussion on whether or not Clause 2 should stand part of the Bill.
The Earl of Gowrie
I am most grateful to the noble Lord. I am not concerned either to delay the Committee or to instruct the Committee that in my view, it should wait until the debate on whether Clause 2 shall stand part. That is not the issue. The Government are considering the implications of the amendment that was carried the other night. Even the most eager, eloquent proponents of the amendment gave every indication when we debated it the other night that it was not easily workable in its present form. Therefore it is not wholly the Government's fault that this causes some difficulties on this part of the Bill. But a great deal of the Bill is not affected by this amendment. We shall be considering with great seriousness how to deal with the amendment, and we shall be bringing forward proposals. The proponents of the amendment have been critical of it in its present form and therefore we should not allow this parliamentary excitement—I pay every tribute to my noble friend on a famous victory—to delay us in the consideration of the rest of the Bill, not all of which is affected by it.
§ Lord Brookes
It would be unwise to dismiss this amendment lightly. I think that your Lordships' Committee would render a disservice to a movement which was born of dire social necessity—that, in my mind, is beyond question—but which for years has desperately needed dignity, responsibility, authority and self-sufficiency. The amendment would seem to rest upon the assumption of sensibility lying behind 644 the assumption of responsibility by employers for trade unions which, if they were true and diligent in terms of the ideals and necessities of their beginnings, should seek to assume—I will not use the term "elevate"—the kind of responsibility, stature, capability and professionalism which characterises many of the trade unions in America and many of those in Europe. Therefore I would not wish, in the best interests of the trade unions, to argue for that which I have referred to as "grace and favour" utilisation of an employer's facilities—often, let it be said, granted by a management which was insufficiently strong or which vacillated, and which has been in considerable part responsible for the decline during our post-war years. I would rather ask the unions to accept full and complete responsibility for their registers and their subscription lists being updated and, therefore, as a whole, being a reliable record for the right to vote.
§ Lord McCarthy
I quite see what the noble Earl, Lord Gowrie, is saying. He is saying that he wants to get on with the Bill and that there are large parts of the Bill which have nothing to do with Clause 2. That is true; but we happen to be on Clause 2. My difficulty is that throughout Clause 2, except at the moment in the case of counting, where the Government have moved an amendment which we have accepted and which has changed the situation, the test of the extent to which the unions have to observe these provisions is "reasonable practicability", which the noble Lord, Lord Wedderburn, says lawyers call "the disproportionate test". What we are saying is that that test is too severe. The Government themselves have accepted that it is too severe in respect of counting—and we thank them for that—and in the place of "reasonable practicability" they have put "accidental and not affecting". They allow the unions to escape if the mistake is accidental and if it does not affect the result.
We like those words, and if those words were to apply throughout the clause and if, when the Government come back having re-written the amendment which we passed the other night the words "accidental and not affecting" bustle around in that part of the Bill, we shall be extremely happy. But they are not in that part of the Bill now, and the noble Earl, with great respect, will not tell us now that they will be. He asks us to wait and see, and, frankly, that is not good enough. We are saying that our phrase at this point would be "uses its best endeavours", and that if the employer is responsible for those endeavours going astray then the union should not be liable. Unless the noble Earl can tell us now what the Government are going to put in the clause when it is brought back, I am afraid we must press this to a Division.
The Earl of Gowrie
I may be able to help the noble Lord a little, although I would not wish to dissuade him from Divisions if he wants them. I am simply not convinced that it is necessary in this case. One of the Government amendments withdrawn from the Marshalled List because of the amendment accepted in the name of my noble friend Lord Beloff would have made it absolutely clear that a trade union would not be liable for interference or constraint on the part of the employer. We shall certainly look to including something very similar in Clause 2, in whatever form 645 it finally emerges. Obviously, part of the whole point of a Committee stage is that the Bill may be modified as we go along. I think it would make something of a mockery of that admirable principle if, whenever the Government were defeated during a Committee stage, the Bill did not proceed further at all.
§ Lord McCarthy
Would the noble Earl tell me which amendment it was which did what he has said it did?
The Earl of Gowrie
Not without notice; and, in any case. it is not now immediately relevant. We have had to withdraw the amendment in the light of my noble friend's splendid victory. Therefore, it does not now operate. But if the noble Lord wants to press this amendment to a Division, I shall advise my noble friends to vote against him.
§ Lord Howie of Troon
Is the noble Earl offering my noble friend some kind of a concession which would induce him to withdraw the amendment? He seems to have gone very near to doing that. Would he like to go the whole way and do so?
The Earl of Gowrie
The Government have said that they agree with one part of the argument put forward by the noble Lord, Lord McCarthy, and had an amendment down on the Marshalled List (which I am now advised was No. 22) to this effect. That Amendment No. 22 now does not pertain. As we look at the amended Clause 2 in the light of Amendment No. 21, we shall take on board the point that has just been made. Therefore, I do not think it is reasonable for the noble Lord to press it.
§ Lord McCarthy
I am sorry; I am afraid we must press it. The fact is that Amendment No. 22 (as the noble Earl now informs me it is) has been changed from an earlier draft so that the constraint imposed which it protects against is a constraint imposed by the union or by any of its members. There is no mention of employers in it at all. We must press this to a Division.
§ 4.25 p.m.
§ On Question, Whether the said amendment (No. 30) shall be agreed to?
§ Their Lordships divided: Contents, 84: Not-Contents. 122.647
|DIVISION NO. 2|
|Airedale, L.||Carmichael of Kelvingrove, L.|
|Amherst, E.||Cledwyn of Penrhos, L.|
|Ardwick, L.||Collison, L.|
|Attlee, E.||Cooper of Stockton Heath, L.|
|Aylestone, L.||Darling of Hillsborough, L.|
|Banks, L.||David, B. [Teller.]|
|Birk, B.||Davies of Penrhys, L.|
|Blyton, L.||Dean of Beswick, L.|
|Bottomley, L.||Diamond, L.|
|Bowden, L.||Donaldson of Kingsbridge, L.|
|Briginshaw, L.||Donnet of Balgay, L.|
|Brockway, L.||Elwyn-Jones, L.|
|Bruce of Donington, L.||Ennals, L.|
|Ewart-Biggs, B.||Mayhew, L.|
|Falkland, V.||Monson, L.|
|Fisher of Rednal, B.||Mulley, L.|
|Gaitskell, B.||Northfield, L.|
|Gallacher, L.||Oram, L.|
|Gladwyn, L.||Ponsonby of Shulbrede, L. [Teller]|
|Graham of Edmonton, L.||Rochester, L.|
|Granville of Eye, L.||Ross of Marnock, L.|
|Grey, E.||Sainsbury, L.|
|Grimond, L.||Seear, B.|
|Hale, L.||Stallard, L.|
|Hampton, L.||Stedman, B.|
|Harris of Greenwich, L.||Stewart of Alvechurch, B.|
|Hirshfield, L.||Stewart of Fulham, L.|
|Hooson, L.||Stoddart of Swindon, L.|
|Houghton of Sowerby, L.||Stone, L.|
|Howie of Troon, L.||Strabolgi, L.|
|Irving of Dartford, L.||Taylor, L.|
|Jenkins of Putney, L.||Taylor of Mansfield, L.|
|John-Mackie, L.||Tordoff, L.|
|Listowel, E.||Underhill, L.|
|Lloyd of Hampstead, L.||Wallace of Coslany, L.|
|Lloyd of Kilgerran, L.||Walston, L.|
|Lockwood, B.||Wedderburn of Charlton, L.|
|Longford, E.||Wells-Pestell, L.|
|Lovell-Davis, L.||Winchilsea and Nottingham, E.|
|McIntosh of Haringey, L.||Winterbottom, L.|
|Maybray-King, L.||Wootton of Abinger, B.|
|Airey of Abingdon, B.||Hayter, L.|
|Alexander of Tunis, E.||Henley, L.|
|Ampthill, L.||Home of the Hirsel, L.|
|Auckland, L.||Hood, V.|
|Avon, E.||Hornsby-Smith, B.|
|Bauer, L.||Hylton-Foster, B.|
|Belhaven and Stenton, L.||Ilchester, E.|
|Bellwin, L.||Killearn, L.|
|Beloff, L.||Kilmany, L.|
|Belstead, L.||Kinloss, Ly.|
|Bessborough, E.||Kinnaird, L.|
|Boyd-Carpenter, L.||Lane-Fox, B.|
|Brookes, L.||Lauderdale, E.|
|Cameron of Lochbroom, L.||Long, V. [Teller.]|
|Campbell of Croy, L.||Lovat, L.|
|Cockfield, L.||Lucas of Chilworth, L.|
|Cork and Orrery, E.||Lyell, L.|
|Cottesloe, L.||McAlpine of Moffat. L.|
|Cowley, E.||McAlpine of West Green, L.|
|Daventry, V.||McFadzean, L.|
|De Freyne, L.||Maude of Stratford-upon- Avon, L.|
|De La Warr, E.|
|Denham, L.||Merrivale, L.|
|Denning, L.||Mersey, V.|
|Dilhorne, V.||Mills, V.|
|Drumalbyn, L.||Molson, L.|
|Eccles, V.||Montagu of Beaulieu, L.|
|Ellenborough, L.||Montgomery of Alamein, V.|
|Elliot of Harwood, B.||Mottistone, L.|
|Elton, L.||Mountgarret, V.|
|Faithfull, B.||Mowbray and Stourton, L.|
|Forbes, L.||Munster, E.|
|Fortescue, E.||Murton of Lindisfarne, L.|
|Fraser of Kilmorack, L.||Newall, L.|
|Gainford, L.||Norfolk, D.|
|Gardner of Parkes, B.||Northchurch, B.|
|Gibson-Watt, L.||Nugent of Guildford, L.|
|Glanusk, L.||Onslow, E.|
|Glenarthur, L.||Orkney, E.|
|Gormanston, V.||Orr-Ewing, L.|
|Gowrie, E.||Pender, L.|
|Gray of Contin, L.||Plummer of St. Marylebone, L.|
|Hailsham of Saint Marylebone, L.||Portland, D.|
|Halsbury, E.||Reigate, L.|
|Hankey, L.||Renton, L.|
|Hatherton, L.||Renwick, L.|
|Romney, E.||Strathspey, L.|
|St. Davids, V.||Sudeley, L.|
|Sandford, L.||Swinton, E. [Teller.]|
|Savile, L.||Terrington, L.|
|Seafield, E.||Teviot, L.|
|Seebohm, L.||Thorneycroft, L.|
|Selkirk, E.||Trefgarne, L.|
|Sempill, Ly.||Vaizey, L.|
|Sharples, B.||Vaux of Harrowden, L.|
|Shaughnessy, L.||Vickers, B.|
|Simon of Glaisdale, L.||Vivian, L.|
|Somers, L.||Ward of Witley, V.|
|Stamp, L.||Westbury, L.|
|Strathcona and Mount Royal, L.||Whitelaw, V.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.33 p.m.
Lord Dean of Beswick moved Amendment No. 31:
Page 4, line 28, leave out ("uncontested election") and insert ("election which under the rules of the union is uncontested.").
§ The noble Lord said: Before I move this amendment, may I say that the other day during an earlier part of the Committee stage I drew the conclusion that the noble Lord, Lord Campbell of Alloway, was impugning the integrity of some trade union leaders, past or present. Having read Hansard, I realise that no imputation was meant in what was said, so I now do what is necessary according to the normal courtesies of this House, and withdraw.
To come to the amendment, we believe that this part of the Bill is far too loose in just referring to an "uncontested election", because the rules of different unions vary from one to another. There is great variation in the rules about those eligible to stand and those not eligible to stand, and we think that to insert,
election which under the rules of the union is uncontested
is a far better expression and would operate far better than the existing provision in the Bill.
§ The most appropriate way to deal with this matter is for the Government to accept the amendment and for the election to be declared under a union's own rules. If that is not done, we think that the court might be involved and the court might decide to vary this procedure, which could mean that in the eyes of the court a union would be in breach of its own rules. The rules under which a union was registered would declare who was eligible to stand and in what circumstances a nomination could or would be declared invalid. This happens on a great number of occasions when nominations of national officers are made at branch level. They are sifted through to see whether there have been transgressions— sometimes length of membership, sometimes arrears, and so on— of the rules under which the union is registered.
§ We believe that if the Bill is left as it is the courts will be brought in by mischief makers. That could confuse the issue and cause a great waste of time for the unions, which under this Bill will have an extremely heavy workload put on them, anyway. We believe that on that basis the amendment is worthy of consideration and acceptance by the Government. I beg to move.
§ Lord Gray of Contin
Subsection (13) of Clause 2 makes clear that the Bill does not require a ballot to be held where there is only one candidate at an election. 648 Subsections (8) to (11) of Clause 2 ensure that union members have a fair opportunity to stand as candidates in elections to their union's executive, but in cases where only one candidate comes forward there is clearly no sense in holding a meaningless ballot.
Turning to the amendment which the noble Lord has moved, I must confess that when I first looked at it I found it rather puzzling and I am not quite certain that I clearly understand its purpose even now. However, as I understand the noble Lord's concern, it is that once an election is regarded as uncontested under union rules— because, for example, only one nomination has been received by the closing date provided in the rules— it should not subsequently be regarded as contested if a second supposed candidate then comes forward.
If that is the noble Lord's concern, then I believe that I can reassure him. I do not believe that any court would require a union to hold a ballot in a case where only one candidate had come forward by the time or within the conditions stated in the union's rules. Of course, if a union were to pass some extraordinary rule— not that I believe that would ever happen— to the effect, for example, that candidates had to give five years' notice of their wish to stand, then a member could complain to a court that he had been unreasonably excluded from standing, in contravention of subsection (8) of this clause. But, frankly, I think that this is unreal. The reality— to state it once again— is that courts will, of course, normally look to the union rules as the determinant of whether an election is uncontested. The amendment would serve only to confuse that position, and in view of that I suggest that the noble Lord might consider withdrawing his amendment.
§ Lord Dean of Beswick
There is possibly some slight confusion in this matter. It does not follow that the only uncontested election is one where there has been only one nominee. If that were the case the noble Lord's argument would be indisputable. There have been a number of occasions— as there will be in the future— where there has been more than one nomination. I am saying that if, under the existing rules of that union, of two nominations, one is declared out of order, in accordance with the rules of that union it shall be deemed to have been an uncontested election and shall not be liable for court action. Could the noble Lord look at the second point I have made? I have no desire to waste the time of the Committee by pressing the amendment to a Division.
§ Lord Gray of Contin
The noble Lord is not being unreasonable in his request. If he believes that there is some purpose in the amendment which the Government have not seen and which I have been unable to see and if he cares to withdraw his amendment and then to discuss it with me or write to me in some detail, I give an assurance to the noble Lord that, without commitment, I shall have another look at the matter.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 2, as amended, shall stand part of the Bill?649
§ Lord Wedderburn of Charlton
My noble friends and I have given notice of our wish to oppose the Motion, That this clause stand part of the Bill. There is a difficulty about discussing this clause which both my noble friends and I have expressed. I should be very happy to give way if the Government would tell your Lordships' Committee whether there is anything further about their intentions which can be said at the moment in order that your Lordships' Committee can discuss the clause in the light of whatever the Government may have to say. If the noble Earl wishes to do so now rather than later, I shall be happy to give way and to speak then.
The Earl of Gowrie
I am most obliged to the noble Lord. We have had a long and interesting set of debates on Clause 2. A number of crucial issues have been raised, none more so than the mandatory postal ballots which the Committee debated last Tuesday night. On this issue, the position, as I have already said to the Committee, is that the Government are considering most seriously the implications of the amendment which your Lordships approved on that occasion, but we are not yet in a position to make known our conclusions. I appreciate that the Committee is understandably anxious to know the Government's views, but I trust that it will understand that such an important amendment— also an amendment which, as I suggested earlier, by the admission of its proponents is not absolutely workable in its present form— requires very careful consideration. Obviously we shall not take long over this matter. I ask the Committee to accept from me that this is a very major item on our agenda. Indeed, I was working on it for some hours this morning.
Leaving aside the question of postal ballots, it is fair to say that our debates on Clause 2 have shown a considerable measure of agreement among my noble friends and many noble Lords who sit on the Opposition Benches both about the need for Clause 2 and about the kind of requirements that it should contain. On the need for the clause, there is a large measure of agreement that trade unions are important and influential institutions in our society which ought to be democratically accountable to their members. I should like to take this opportunity to say that it is precisely because we honour trade unions and feel them to be important that we seek sometimes to show concern in Parliament about the way they conduct their affairs. If they were of less importance we should perhaps not do so. Given that almost every other comparable estate of the realm is subject to the deliberations of Parliament and the passing of legislative regulation, it is quite wrong to feel that this kind of interest constitutes some kind of attack on the principle of unionism. It of course does not.
In our debates last Tuesday, the noble Lord, Lord McCarthy, in this connection attempted to draw a parallel between trade unions and other ordinary, voluntary organisations like the bowls club, the cricket club; and I seem to remember that he successfully flabbergasted my noble friend the Leader of the House by including the golf club. But the fact surely is that there is every difference in the world between these kinds of institutions— differences even for the purposes of comparison or metaphor— and the trade unions. I 650 am sure that the noble Lord, Lord McCarthy, who is by any standards a very brilliant man, knows this perfectly well. Golf clubs do not call industrial action. Bowls clubs are not involved in great national altercations on such issues as mass or violent picketing in which police officers can come under threat. Even cricket clubs— though, as we have seen, these do from time to time in various parts of the country have their moments— do not force people to belong to them under the threat of losing their jobs in a closed shop.
The serious reality is that trade unions enjoy enormous power and influence. It is thus clearly right that their leaders should be elected according to basic democratic principles. This issue is one which time and again ordinary members of trade unions have brought to this Government with an absolute requirement that they shall so act.
§ Lord McCarthy
The noble Earl referred to my speech last Tuesday. Does he not recall that I was making the point that all other institutions, from golf clubs through companies to Parliament, are allowed more flexibility and freedom in deciding their elections and their leaders than the Government propose that trade unions should be allowed? This was my point.
§ 4.49 p.m.
The Earl of Gowrie
The point I was making, as, I believe, the noble Lord knows very well, is that the enormous— indeed, awesome privilege of immunity in law from actions in tort involves certain obligations and responsibilities. The other point I wish to make is that the ability of people to work may depend upon decisions— whether economic decisions or decisions involving closed shop agreements— made by unions. This puts them in a very different case from other kinds of voluntary organisations.
In respect, now, not of the noble Lord, Lord McCarthy, or his friends but in respect of myself and some of my noble friends, we may, on a famous occasion, have differed on one of these principles— the issue of mandatory postal ballots: postal ballots to the legal exclusion, so to say, of workplace ballots— but we do not differ on the remaining issues of principle which Clause 2 establishes. We do not, for instance, differ on the need for voting to be by ballot paper rather than by a show of hands. We do not differ on the need for voting to be free from intimidation or constraint. We do not differ on the need to outlaw the block vote, with all its enormities, and thus to end the system under which trade union elections can be determined by rubber stamp armies of non-existent members. We are agreed on the need for votes cast at elections to be fairly and accurately counted and, most of all, we are agreed on the urgent need to do away with voting systems which currently guarantee that turnout can be measured in terms of 1 or 2 per cent. of the entire union membership.
It is only human to concentrate, in terms of publicity or excitement, on the areas of disagreement, but I hope I have shown that this area is far narrower than the very broad areas in which we on this side of the Committee find ourselves in absolute agreement. I am glad to say, too, that we have attracted considerable support from some of the Opposition Benches.
651 As I said at the beginning, I cannot yet say in detail how Clause 2 will look in its final form. However, I can say that whatever form it finally takes it will guarantee those basic democratic principles which all of my noble friends and many noble Lords in other parts of the House rightly regard as essential. On that basis, and given the Government's earnest that they will consider the implications of Amendment No. 21 most seriously, I beg to move that Clause 2 stand part of the Bill.
§ Lord Wedderburn of Charlton
We have heard what the Government have to say and it is, perhaps, not surprising that my noble friends and I have heard nothing which has made us wish to support the Motion that this clause stand part of the Bill. It is surely very odd for a legislative Chamber to be asked to decide on whether a clause should stand part of the Bill when part of the central core— indeed, the amendment to subsection (6) is not a peripheral matter— is in such a degree of doubt. It is doubly odd that the Government should put forward such a detailed and important amendment as Amendment No. 22— referred to earlier by the noble Earl in reply to my noble friend but in a somewhat erroneous context— whereby one can have either postal or workforce ballots, and to argue, as the Government argued in the other place when the Minister of State spent many columns describing how he had been persuaded, on very good grounds it seemed to us, against postal ballots as the only way for democracy to operate in this area. To have all that behind them and for the Government still not to have made up an attitude to something which has been so resisted for eight months, does seem very strange. However, we are very grateful to the noble Earl for his statement, and it is quite understandable that sometimes Government cannot go further on a particular point.
Therefore, I wish to put to your Lordships' Committee the reasons why we shall vote against this clause standing part of the Bill, understanding it as best we can. It is, perhaps, an opposition to an embryonic clause standing part of the Bill. We do not know what it will look like when it is born. It is a pity that we do not have a procedure for refrigerating it and coming back in Committee later, rather than coming back, as I understand we shall, on Report.
The reasons for our opposition to this clause can be put under three headings. First, it is a clause which ties trade unions in a way which is offensive to international standards. Secondly, and not unrelated, it is a clause which ties trade unions by the imposition of the law by reference to domestic standards in a way which is not in accordance with normal democratic thinking. Thirdly, as my noble friend has constantly pointed out, it victimises trade unions by applying logic, or illogic, to them which the Minister does not apply, and others would not apply, to other organisations.
As regards the first heading, the Government really must say whether or not they accept the international obligations which are upon them. Earlier today we heard the Government renounce the judgment of the Freedom of Association Committee or fail to accept obligations to the ILO. They have accepted obligations 652 under the European Convention on Human Rights and they have been only too keen to put out a banner when the decision is in their favour. But now we have the issue of whether this clause could, or is likely to, offend the ILO Freedom of Association Convention No. 87 passed in 1948, to which we were one of the first countries to adhere.
In the Second Reading debate I cited to your Lordships the judgment, the decision, or the interpretation of the Committee of Experts in its 1983 report, which the Government themselves have relied upon in previous debates, and relied upon then. The Committee of Experts, concerning Freedom of Association, which produces regular reports, has always taken the view that legislation which merely promotes democratic standards and protects the interests of individual members is not an offence against the Freedom of Association convention and the right of trade unions under it to elect their representatives in full freedom. But the 1983 report has dug into this matter a little more deeply than was done in the Committee of Experts reports. In paragraph 172 of the report which the Government themselves rely upon the experts say:The Committee considers that legislation which regulates in detail the internal election procedures of trade unions is incompatible with the rights of trade unions recognised by Convention No. 87. There is reason to believe that detailed regulation of trade union elections by legislation which prescribes specific rules on the subject limits the right of organisations to elect their representatives in full freedom and may constitute a kind of a priori supervision of the electoral procedure making it easier for public authorities to intervene in the process".It is quite remarkable how many times since I first quoted that sentence we have heard from the Government Benches that this is not a set of detailed procedures in Clause 2. I do not think the word "detailed" appeared in the Government's case in the other place. They are trying to say that this is not a detailed procedure. Indeed, the noble Earl, if I may remind your Lordships of Second Reading on 15th May 1984, made two responses to this charge. He first of all interrupted me— I have no objection to the noble Earl interrupting me— to say at column 1339:All that I am saying is that the noble Lord… is drawing an international red herring over a sensible and local provision".In other words, he was saying that this report is a red herring. By the time he responded to the debate, however, he had had further thoughts. At columns 1347 to 1348 he said— and I must read the whole sentence to make the point— that,so far as Article 3 of the Convention 87 is concerned, it is clear that the basic aim is to protect trade unions against interference by Governments with the right of trade unions inter alia to elect their representatives in full freedom. The types of interference which have been criticised by the ILO supervisory bodies as being in contradiction of this right have been, for example, that the legislation contains unduly detailed rules relating to trade union elections, and even provides for intervention by the authorities in the supervision of the electoral process".A little later he said:In fact, cases in which the legislation of other countries provides for secret ballots for trade union elections are frequent, and in some countries— for instance, Australia and Japan— it is the constitution or rules of the union that must provide for secrecy in the election of trade union leaders".He later added, referring to the quotation from the experts' report:The quotation referred to by the noble Lord, Lord Wedderburn, might apply if the Bill laid down detailed rules and requirements on every aspect of trade union elections. But it does no such thing".653 Therefore, on the Government's own test we say that for the elections to the national executive committee there are detailed requirements on every aspect.
Let us consider the aspects of the elections. There are those who are entitled to vote. That is in Clause 2. There are the permitted and disallowed constituencies of members. That is in Clause 2. There is the method of voting; only direct elections are allowed. That is in Clause 2. There is the way of voting; it must now be postal voting until we see these embryonic exceptions which are to come back to us at a later stage. But that is all going to be controlled by some outside agency because that was in the amendment passed last week. So that is in Clause 2. There is the opportunity to vote. Every time we have said that that is obscure in Clause 2 the Government have joyfully said, "No, it is not obscure. It is 'reasonably practicable' and this, that and the other duty and obligation is clearly defined". There is the control over candidatures; a little loose, perhaps, but that is in Clause 2. There is the basic rule about voting, and that is in Clause 2.
Once one has got through entitlement to vote, constituencies, method of voting, opportunity to vote, candidatures, and counting, I do not know how much greater detail the noble Earl is going to suggest will have to be put in before it will fall within the ILO stricture. I suppose that you could put in the size of the ballot paper. No doubt one day someone will suggest that as a sort of embryonic amendment.
But of course that is not the end of the matter. One must read Clause 2 in the context of the whole Bill. There had been a Government amendment to allow the court to compel postal ballots. That has been dropped, but they have not dropped their Amendment No. 42, to which your Lordships' Committee will come later, whereby the court will be enabled to lay down any other conditions which it wishes, without any limit whatever, on the ballot of a trade union election to the NEC. A court is within the ILO concept of a public authority, and therefore falls within those articles of the convention.
Even the Australian legislation does not go anywhere near this. The noble Earl has constantly relied upon Australia; I have read one example today. But in Australia, where trade unions are part of a wholly regulated system of industrial relations on conciliation and arbitration— which I should not think the Government would wish to adopt again, as they tried in 1971, in embryo, at any rate— at least the union has the option between direct or indirect elections. There is one tier if it is a full-time officer, and it is multi-tier— that is, from branch to branch committee, with branch committee electing division and division electing other members of superior committees— if the post is not full-time.
Similarly, postal ballot is not mandatory in Australia. It is true that they have the industrial registrar, who has to be consulted if there is not to be a postal ballot; and it is true that they have the other agency— the Australian electoral office— which normally conducts the elections. But these quangos and officers are going to come into the legislation here, perhaps as the bodies required by last week's embryonic amendment.
654 Even if one looks at a totally different industrial relations system, which is more used to legal regulation, and which is indeed actively debating whether to get rid of the degree of its legal regulation, one does not find the detailed control which there is in Clause 2. Therefore we say that on the debate that we have had so far, and on the Government's own test, which they accepted at Second Reading, this clause at any rate is very arguably not in accordance with our international obligations under the ILO convention.
I understand what the noble Earl says when he loses an argument on an ILO convention. The Freedom of Association committee is not a court, but it has very long experience of these matters. It has longer experience than either I or the noble Earl has. Its judgments are usually regarded as serious documents. Although if I say that, as a matter of fact, I happen to agree that there is an argument the other way on the GCHQ matter, I do not think that it is the stronger argument. I think that the stronger argument is the argument that the ILO committee reached, but there is an argument both ways. There may be an argument both ways on Clause 2, but I ask the Government, and I ask noble Lords, to take the argument seriously. What I have put before the Committee is a serious argument, and, I believe, a strong and convincing argument, that Clause 2 is contrary to Convention 87 whether or not it is intended to be, and I apprehend that it may well not be intended to be.
Secondly, so far as the general place of the clause in trade union administration and our trade union world is concerned, let us be quite clear about one thing. I do not now try to put it in my own words, which appear somewhat difficult of understanding by some noble Lords. I turn to the Donovan Commission, which said:There is no general disquiet among trade union members concerning the honesty with which trade union elections are carried out".That was true in 1968, and it is true today. I repeat:There is no general disquiet".There are allegations of mistakes and malpractices occasionally, and I could give noble Lords a few examples of where minor malpractices have been found out. But I would not come along and say that because a few minor malpractices have been found out, there should be a vast and detailed clause to deal with them, partly because it would not necessarily be the most effective way of dealing with things.
Until a few years ago nobody in his right mind would have thought that that was the correct way of dealing with things in our industrial relations system, until we had a Government who did not see trade unions as an integral part of the industrial relations system and who used logic on trade unions that they never used on companies— logic, as my noble friend has said, that they would never use on any other association or body. Until we had that, nobody in his right mind would have thought— certainly the Donovan Commission would not have thought; and, as a matter of fact, the Government in 1971 did not think— that that was the right way to do it. For all its faults, what the Act of 1971 did for trade unions, whether or not they registered, was to set up a series of standards and not a series of detailed rules of this kind. I myself happen to think that some of the standards 655 were ill chosen, but it was a different model and it was not the kind of thing in which we are now engaged.
I say with regard to that last point to which I have come —because of course it is the victimisation of trade unions that we have frequently spoken about on this clause —that noble Lords should consider the road down which the Government are advancing. They have used arguments on trade unions which they would not use of any other body. If the noble Earl or any other Minister ever says again that they are ensuring only that trade unions do what companies have to do under the law, I beg them to quote the Act and the section. It is not true that companies that are registered in our jurisdiction, however large, have to arrange their electoral affairs for the board of directors in accordance with a body of law of this character.
Some noble Lords may think that that does not matter. They may think that trade unions are so special that one must have special rules about them. Indeed, some noble Lords have been waiting for a very long time for this day, not on the basis of any malpractice or of any logic, but simply because they think that trade unions are bad things and they do not like them. That is as far as the logic goes, and that is as far as the logic for the clause goes. Trade union practice, as has been shown again and again, is composed of a very complex series of democratic procedures, which for the most part work and which sometimes go wrong, like the procedures in all organisations.
I refer to a recent book, which I note that the Government have not once referred to, at any rate in their public discussions. It is by Dr. Undy and Dr. Martin. No one can read that recent publication without realising the interesting complexity and rich variety of the trade union movement in its democratic processes. The noble Earl does not seem impressed by the citation of Undy and Martin, but I say to him that until recently the variety of the trade union movement in this country was regarded as one of the jewels of our democracy, and it is exactly that. Those who attack trade unions always attack them first when they are departing from democratic standards. The Government are taking us down a road which may well include a number of the Australian features that I have mentioned. Is there going to be a registrar? Surely the Government know that by now. Will there be an electoral office? Surely they know that by now. If so, we shall all owe duties to it, it will have a regulatory effect and it will mean the imposition of state control over trade unions as a first step down an autocratic road. This clause is in a sense demonstrative of that direction.
In saying that the clause is undemocratic in the detailed control which it imposes, I say that therefore it infringes traditional British standards, which have been observed by all Governments in previous Administrations, and it also transgresses our international obligations. On those grounds my noble friends and I shall vote against the clause standing part of the Bill.
§ 5.8 p.m.
§ Lord Renton
Speaking for myself, I quite understand why my noble friend Lord Gowrie could 656 not at this stage give us detailed, or even very broad, conclusions about what the Government are going to do as a result of the Committee passing Amendment No. 21 last week. Indeed, I hope that they will have very wide consultations —I am sure that they will —and that they will not rush into solutions. There is adequate time between now and the Report stage for a great deal of discussion to take place, and I wish my noble friend well in those discussions.
Having listened to the impassioned, eloquent and detailed speech of the noble Lord, Lord Wedderburn, I was very surprised indeed that he could not find it possible in the course of his survey to mention the fact that two of our greatest trades unions have for some years now had a well-established procedure for secret postal ballots. There is no need for me to cover ground that was covered so well by my noble friend Lord Beloff and others during our debate last week; but surely in a matter of this kind it is right that both the Opposition and the Government should bear in mind the excellent precedents which have been created to the satisfaction of the members of those trades unions.
I hope that my noble friends, when considering this matter further, will —indeed, I am quite sure they will —consider the interests of the individual memberships of the trade unions as the paramount consideration. Even the most enthusiastic member on the other side of the Committee cannot claim that the trade union establishments throughout the country have succeeded in doing that in every case.
There is only one detailed comment that I wish to make, apart from what I have said, and it is this. In Amendment No. 22, which, I think mercifully, has fallen, there was one provision which I regarded as a defect, paradoxical as it may seem. It was the opportunity that was to be given, against the background of workplace ballots in a union, to individual members to apply for a secret postal ballot. In a trade union in which workplace ballots were already the rule and seemed, from the point of view of the union, likely to continue to be the rule, any member who applied for a secret postal ballot would become a marked man and we would get what I can only describe as "a sheep and goats" situation in the union in which that happened.
Therefore, although I am one who, with my many noble friends, helped to carry Amendment No. 21 the other night, I am also one who hopes that we shall work towards the secret postal ballot until it becomes the general rule. I hope that we shall not get the situation confused. Either we must have secret postal ballots for each union, wherever it is feasible or we must stick to and improve the procedure of the workplace ballots. I do not think it is sensible to try to combine the two in any one union.
§ Lord Rochester
I am grateful for what the noble Earl, Lord Gowrie had to say in relation to the amendment moved last week by the noble Lord, Lord Beloff. When he says that he hopes we shall take it on trust from him that the Government are giving their earnest and immediate consideration to the matter, I, for one, am prepared to give him that trust. Indeed, I have some sympathy with him in the predicament in which the Government now find themselves.
657 At Second Reading I said that the practical difficulties associated with the establishment of the statutory machinery needed to make more extensive use of postal ballots should not be under-estimated. In voting, as I did last week, for the amendment of the noble Lord, Lord Beloff, I have not departed from that position. It may be that the noble Lord, Lord Beloff, will speak for himself in a moment. However, I hope it will not be thought presumptuous of me to say —and I think that I can say this on behalf of my noble friends —that for our part we should be pleased to accept any invitation that might be extended to us to join in consultations aimed at producing, before the Report stage of the Bill, an amendment or amendments designed to uphold in a realistic way the principle that has now been agreed to by the Committee, and aimed also at securing the widest possible support within the House.
In other words, our desire is not to hinder but to help the Government solve this problem. Having said that at Second Reading, again, even in its unamended form and speaking for my noble friends, I gave Clause 2 support. Now that it is before us, as I understand it, for the moment at any rate, in the amended form that it is in, following the acceptance by the Committee of Lord Beloffs amendment, I am glad to confirm that and feel that this clause should indeed stand as part of the Bill.
§ Lord Houghton of Sowerby
The noble Earl the Minister is in a predicament, but then so are we. My difficulty in voting that Clause 2 stand part of the Bill is that I am not sure that it is going to stand part of the Bill. So we are all in this dilemma. Some noble Lords will vote for Clause 2 to stand part because they are in favour of its standing part as it is. Some noble Lords will vote in favour of Clause 2 standing part without knowing what is to stand part. I wonder how the Committee can come to a sensible conclusion.
This is an unusual situation, I think, calling for an unusual remedy. That is that the noble Earl should ask leave of the Committee to withdraw the Motion that Clause 2 shall stand part of the Bill and let us come back to it at another time. I do not think the Bill will lose anything if Clause 2 temporarily does not stand part of the Bill. This is a separate section of the Bill. It will not interfere with ballots on strikes, or with political funds. We shall not really miss Clause 2 if it does not stand part of the Bill until the Report stage. Nobody will notice it. Nobody has asked to do anything about it so no harm will come of it. I do in all seriousness suggest that this is the remedy to apply.
Let me add to this, so that my position may be clear. I voted for the inclusion of the postal ballot in Clause 2. I did that because I felt that if a statute law is to impose upon trade unions a defined form of direct elections for their officers and committee, then it is the duty of the legislature in so doing to ensure that the system that they are enforcing on the bodies concerned is first of all fair; secondly, that it will be properly conducted; and thirdly, that the result will give confidence in the system adopted.
I think that certainly applies more to a system of postal ballots than to any other system that we could think of in this connection. Really and truly if we were 658 contemplating a general Bill for the direction of democracy throughout our institutions we should first think of the method of election which we have used for parliamentary and local government elections. I seriously thought of all this while the debate was going on last Tuesday. I considered whether we should erect polling stations at a suitable point near to the electors and follow all the procedures of our electoral system to make sure that the elections were properly conducted, the votes were fairly counted and all that. But that was not contemplated.
The noble Lord, Lord Renton, has pointed out that what the Government propose is really a nonsense. It seemed to me that it was imposing something by statute law and then leaving it to an unwarranted degree of flexibility among the unions concerned as to which method they should adopt, with all the problems concerned with any other system in these circumstances except the postal ballot. However, the noble Earl cannot assure me that all that is going to stand part.
The other night my noble friends voted with the loyalists on the Government side. I voted with the rebels. My noble friends have been in the Government Lobby again this afternoon. I think we are all getting embarrassed by this Bill because of our difficulties in knowing which way to vote at any particular time, and for what reason. I wish this Bill were being introduced in a better spirit. This is not democracy. It is a form of punishment. When it is not punitive, it is muddled and I think perhaps in some respects it will become unworkable. So we are really up against a very bad Bill indeed.
However, that is not the issue now. The issue is what to do with Clause 2. I am trying to straighten out my own position. My conclusion is that I cannot support Clause 2 standing part of the Bill unless I have an assurance that it will stay part of the Bill.
§ Lord Renton
If the noble Lord will allow me, before he sits down, he has overlooked two technical factors? If we now try to strike Clause 2 out of the Bill, we shall in effect be negativing the amendment which we added to the Bill last week. The other point, which I recognise is mere mechanics but which will nevertheless be an awful nuisance for the staff, is that if Clause 2 goes out, all subsequent clauses will have to be renumbered in the copy of the Bill that we get at Report stage. That will throw us into a thorough state of confusion.
The Earl of Gowrie
I am most grateful to my noble friend, Lord Renton, for those enormously sensible remarks. The noble Lord, Lord Houghton, flushed with the pleasure of voting with at least some of my noble friends on this clause, speaks rather as if Committee stages in your Lordships' House were rubberstamp affairs. They are not. We have a Bill, a perfectly sensible Bill. It has been amended. The amendment will bring some consequences into other areas of the Bill that we shall have to consider and look at. The point, I understand, of having more than one stage of deliberations on Bills in your Lordships' House is precisely that this sort of thing should be taken into account. Although, unlike my noble friends, Lord Denham and the Leader of the House, I 659 am not a great expert in these matters, it would seem to me a curious constitutional principle if, effectively, all Bills were dropped if they were ever amended. It would give an immense degree of additional muscle to my friends the Whips. I therefore do not think that it would be an enormously sensible way to proceed.
I would also say to the noble Lord, Lord Houghton —I am sure that the point will not have gone unremarked by my noble friends, Lord Renton and Lord Beloff —that were I an unscrupulous fellow (and, of course, I am not) I might welcome the siren suggestion of the noble Lord, Lord Houghton, on the principle that if we go back to square one, there may be rather more of the unholy rainbow alliance present next time and all the valiant endeavours of my noble friend Lord Beloff will be as naught. However, not being an unscrupulous fellow, I take the defeat of the Government very seriously, and, as I indicated in my opening remarks, the Government will use their best endeavours to bring forward proposals at a later stage.
There is a great deal in the rest of Clause 2 of the Bill on which we can agree. All that I am asking the House to agree at the moment is that Clause 2, as it was, indeed, amended by a Committee of your Lordships, House, shall stand part of the Bill. That would seem to me to be wholly an issue of propriety.
§ 5.25 p.m.
§ Lord Howie of Troon
I am sorry that the noble Earl leapt to his feet so rapidly to conclude the debate, because I do not think that it has quite come to an end. I have substantial sympathy with my noble and very old friend, Lord Houghton. I shall come to a "for instance" in a moment. I should, however, like to say first that the motion to oppose clause stand part has put me in a kind of dilemma. It is a dilemma that must be shared by most of your Lordships. When my noble friends rightly intimated that they opposed Clause 2, it was Clause 2 as printed in the Bill. Since then, Clause 2 has become a different animal altogether. We are now asked to consider opposing a totally different clause, in which a substantial change has been made and a principle of voting accepted. I voted for that principle. I know that there are all kinds of difficulties. I know that these difficulties have to be ironed out, made sensible and made acceptable, but it is the principle that I feel is important. I voted for it.
I realise that barely a week or slightly less than a week has elapsed since that principle was accepted by your Lordships. But a week, as we know, is a long time in politics. I should have thought that we would have had a firmer intimation from the Government Front Bench about what their actual intentions were. The Government have intimated that they will think about it. That is right. We do not expect them to do anything else. However, after the greater part of a week, the Government should be able to tell us whether they accept the principle of the amendment of the noble Lord, Lord Beloff, and whether they will be bringing forward revisions to Clause 2 which accept that principle and try to fit it into the realities of the world which, as we know, are not always exactly as we would want them. I should like the Government to say more about their response to the amendment of the noble Lord, Lord Beloff, than they have done already.
660 My second dilemma arises from the point raised by my noble friend, Lord Wedderburn, who has drawn attention in great detail to the lack of flexibility in the clause as it stands now. I recall discussions on an amendment of mine when I had occasion to draw the attention of the noble Earl to the fact that the Bill was less flexible than he was trying to convince us it was. Every time he spoke in response to debate, it became even less flexible. The noble Lord, Lord Wedderburn, in an eloquent speech, as the noble Lord, Lord Renton remarked —the noble Lord might have added that it was an excellent speech —has enumerated those inflexibilities. They go a great deal further than the noble Earl has tried to convince us is the case. The Bill is not as flexible as the noble Earl has made out. Clause 2 strikes me as being highly questionable.
The noble Lord, Lord Houghton, has made quite a sensible proposal. Fundamentally, if I understood him correctly, he was saying that the Government should take away Clause 2, look at our debates and come back at Report stage with a completely new Clause 2, based on those debates and amendments that we have put through. The noble Lord, Lord Renton, thought that this would be inconvenient for the staff. That is right. However, in a sense, that is what they are there for. We do not like to heap inconvenience on them. But if inconvenience was there, they would have to bear it. The noble Lord, Lord Renton and others who are long in the tooth will remember this. I include myself, by the way, in that group. I am talking as an old House of Commons hand. There are several. The noble Lord, Lord Houghton, and I see the noble Viscount, Lord, Tonypandy, sitting there. All of us were present on the occasion that I shall instance.
Do noble Lords remember the occasion way back some time in the 1960s when another place was discussing a Bill presented by the late Sydney Silverman to abolish hanging? There was a provision in that Bill which said that the sentence would be for life. A debate took place as to what "life" actually meant. Did it mean life in the ordinary sense that you live for a while? Or did it mean life to the end of life? In those days, in order to change a Bill, you had to take a word out by one amendment before you put another in. On that occasion, at the Committee stage —the noble Viscount the Leader of the House will remember this perfectly well —the House decided to remove the word "life" in one Division and then decided against putting anything in its place, so that, as it came out of Committee, the Bill read, somewhat foolishly, "shall be sentenced for", after which there was a blank. That was not too wonderful, but it was put right on the Report stage. My noble friend Lord Houghton is asking for nothing else. He is asking merely for a blank in the Bill: an important blank, no doubt, which the Government can put right at Report stage merely by re-writing Clause 2 in accordance with the debates we have had and the amendments we have passed. I do not think we should allow Clause 2 to go forward without any further assurances from the Government.
§ Lord Dean of Beswick
If the noble Earl comes to the Box to reply or to speak again, I should like him to tell us something about one particular matter. In an earlier contribution to this debate on whether the 661 clause shall stand part he used the phrase, "wide consultations". That was accepted by the noble Lord, Lord Rochester, when he spoke in the debate. Can the noble Earl tell us which bodies he has in mind when he refers to consultations? Does he mean just Members of the House of Lords, who were responsible for passing this far-reaching amendment, or does he intend, if they wish to come in, also to bring the TUC into the discussions at this stage, now that it is almost a fact, to see how best to implement this proposal?
The Earl of Gowrie
I congratulate the noble Lord, Lord Dean of Beswick, on what is called a nice try. In respect of Amendment No. 21, he is perfectly well aware that he trooped into the Lobby beside me, as it turned out, somewhat to my discomfiture. Therefore, I imagine that on this issue the noble Lord needs no further consultations with me or anyone else.
The fact of the matter is that what I said earlier was simply this. The Government accept the fact that the will of the Committee on Amendment No. 21 was not as they originally recommended, and they will bring forward proposals accordingly. What I am now suggesting your Lordships do is to consider that Clause 2, as amended by your Lordships' Committee, stands part of the Bill.
§ Lord Beloff
On that point I feel that I can do little but re-echo the words spoken some time ago by the noble Lord, Lord Rochester. Those of us who supported the amendment, which the Committee carried, are pleased to learn that, as the noble Earl put it, the Government take seriously the will of the Committee on this matter; and we understand, though for reasons of convenience we may regret it, that it is taking longer than we might have hoped to find the appropriate form in which to incorporate the Committee's wish.
Nevertheless, it seems to me that, since we accept that the Government's intention in this matter is serious, the obvious thing is for Clause 2 to stand part of the Bill, because then it can be amended on Report in accordance with the Government's suggestions, provided, of course, that those suggestions commend themselves to the House at Report stage. We cannot know what will be the position on that because we do not yet know what the suggestions may be.
There is, however, one point I should like to make in support of Clause 2 generally. It relates to the speech made by the noble Lord, Lord Wedderburn, who again has directed our attention to the ILO and its conventions. I think that when we deal with the conventions, or the interpretations of them, of an international body of this kind we ought to look at the purposes and not simply at the letter. It seems to me that if we survey the world (and a great deal of the world is represented in the ILO) we find that the problem about trade unions in most countries —not in our own country, not in the countries of our nearest neighbours —is whether they exist at all in any recognisable shape or form, whether they have any 662 vestige of autonomy, or whether they are not merely a transmission belt through which a party or a national movement exercises authority within them.
If one looks at that situation, it seems that all of these recommendations and conventions take on a quite different aspect. What those who drafted them were intending to do was prevent the state authorities in a country with a trade union system from devising methods of election by which they could impose their political partisans in the ruling bodies of those unions. I should have thought that, by comparison with the vast majority of countries in the world, trade unions in this country, even if this Bill were passed without further amendment, would still enjoy a measure of autonomy that is rarely, alas, to be found.
§ 5.35 p.m.
§ On Question, Whether Clause 2, as amended, shall stand part of the Bill?
§ Their Lordships divided: Contents, 146; Not-Contents, 61.663
|DIVISION NO. 3|
|Airedale, L.||Gridley, L.|
|Airey of Abingdon, B.||Grimond, L.|
|Alexander of Tunis, E.||Hailsham of Saint Marylebone, L.|
|Attlee, E.||Halsbury, E.|
|Auckland, L.||Hampton, L.|
|Avon, E.||Hanworth, V.|
|Aylestone, L.||Harris of Greenwich, L.|
|Banks, L.||Hatherton, L.|
|Bauer, L.||Hayter, L.|
|Bellhaven and Stenton, L.||Henley, L.|
|Bellwin, L.||Home of the Hirsel, L.|
|Beloff, L.||Hood, V.|
|Belstead, L.||Hooson, L.|
|Bessborough, E.||Hornsby-Smith, B.|
|Boyd-Carpenter, L.||Hutchinson of Lullington, L.|
|Brookes, L.||Hylton-Foster. B.|
|Broxbourne, L.||Kaberry of Add, L.|
|Campbell of Alloway, L.||Kilmany, L.|
|Cathcart, E.||Kinloss, Ly.|
|Cockfield, L.||Kinnaird, L.|
|Coleraine, L.||Lane-Fox, B.|
|Cork and Orrery, E.||Lauderdale, E.|
|Cottesloe, L.||Lloyd of Kilgerran, L.|
|Craigavon, V.||Long, V.|
|Daventry, V.||Lucas of Chilworth, L.|
|De La Warr,||Lyell, L.|
|E. Denham, L. [Teller.]||McAlpine of Moffat, L.|
|Denning, L.||McAlpine of West Green, L.|
|Diamond, L.||McFadzean, L.|
|Dilhorne, V.||McGregor of Durris, L.|
|Donaldson of Kingsbridge, L.||Mancroft, L.|
|Drumalbyn, L.||Massereene and Ferrard, V.|
|Eccles, V.||Maude of Stratford-upon-Avon, L.|
|Elliot of Harwood, B.||Mayhew, L.|
|Elton, L.||Merrivale, L.|
|Faithfull, B.||Mersey, V.|
|Forbes, L.||Mills, V.|
|Fortescue, E.||Molson, L.|
|Fraser of Kilmorack L.||Montgomery of Alamein, V.|
|Gainford, L.||Mottistone, L.|
|Gardner of Parkes, B.||Mountgarret, V.|
|Gibson-Watt, L.||Mowbray and Stourton, L.|
|Gladwyn, L.||Munster, E.|
|Glanusk, L.||Murton of Lindisfarne, L.|
|Glenarthur, L.||Newall, L.|
|Gowrie, E.||Norfolk, D.|
|Grey, E.||Northchurch, B.|
|Nugent of Guildford, L.||Stamp, L.|
|Onslow, E.||Stedman, B.|
|Orkney, E.||Strathcona and Mount Royal, L.|
|Pender, L.||Strathspey, L.|
|Perry of Walton, L.||Sudeley, L.|
|Platt of Writtle, B.||Swinton, E. [Teller.]|
|Plummer of St. Marylebone, L.||Terrington, L.|
|Portland, D.||Thomas of Swynnerton, L.|
|Rankeillour, L.||Thorneycroft, L.|
|Reigate, L.||Tordoff, L.|
|Renton, L.||Tranmire, L.|
|Renwick, L.||Trefgarne, L.|
|Rochester, L.||Trumpington, B.|
|Romney, E.||Vaizey, L.|
|Sainsbury, L.||Vaux of Harrowden, L.|
|St. Davids, V.||Vivian, L.|
|Saint Oswald, L.||Walston, L.|
|Sandford, L.||Ward of Witley, V.|
|Savile, L.||Whitelaw, V.|
|Seear, B.||Wigoder, L.|
|Seebohm, L.||Winchilsea and Nottingham, E.|
|Sharples, B.||Wise, L.|
|Shaughnessy, L.||Wynford, L.|
|Ardwick, L.||Irving of Dartford, L.|
|Birk, B.||Jeger, B.|
|Blyton, L.||Jenkins of Putney, L.|
|Boston of Faversham, L.||John-Mackie, L.|
|Bottomley, L.||Listowel, E.|
|Bowden, L.||Lockwood, B.|
|Briginshaw, L.||Lovell-Davis, L.|
|Brockway, L.||McCarthy, L.|
|Bruce of Donington, L.||McIntosh of Haringey, L.|
|Carmichael of Kelvingrove, L.||MacLeod of Fuinary, L.|
|Cledwyn of Penrhos, L.||Mulley, L.|
|Collison, L.||Northfield, L.|
|Cooper of Stockton Heath, L.||Oram, L.|
|Darling of Hillsborough, L.||Phillips, B.|
|David, B.||Pitt of Hampstead, L.|
|Davies of Penrhys, L.||Ponsonby of Shulbrede, L. [Teller]|
|Dean of Beswick, L.|
|Donnet of Balgay, L.||Ross of Marnock, L.|
|Elwyn-Jones, L.||Stallard, L.|
|Elystan-Morgan, L.||Stewart of Alvechurch, B.|
|Ennals, L.||Stewart of Fulham, L.|
|Ewart-Biggs, B.||Stoddart of Swindon, L.|
|Fisher of Rednal, B.||Stone, L.|
|Gaitskell, B.||Strabolgi, L.|
|Gallacher, L.||Taylor of Blackburn, L.|
|Glenamara, L.||Taylor of Mansfield, L.|
|Graham of Edmonton, L. [Teller.]||Underhill, L.|
|Wallace of Coslany, L.|
|Hale, L.||Wedderburn of Charlton, L.|
|Hatch of Lusby, L.||Wells-Pestell, L.|
|Houghton of Sowerby, L.||Wootton of Abinger, B.|
|Howie of Troon, L.|
§ Resolved in the affirmative, and Clause 2, as amended, agreed to.
§ 5.44 p.m.
§ [Amendment No. 33 had been withdrawn from the Marshalled List.]
§ Clause 3 [Remedy for failure to comply with Part I]:
§ The Deputy Chairman of Committees (Lord Nugent of Guildford)
The next amendment is Amendment No. 34. I should explain that if Amendment No. 34 is agreed to, I shall not be able to call Amendment No. 35.
§ Lord Dean of Beswick
May I seek the guidance of your Lordships? I should obviously like to speak to Amendment No. 35 because it has the same effect and carries the same message as the other amendment. I should like to join in on this debate if that is the normal procedure.
§ The Deputy Chairman of Committees
I assure the noble Lord that if he speaks to his Amendment No. 35 while we are dealing with Amendment No. 34, he will be quite in order. He may hope that Amendment No. 35 will be called, depending on what happens to Amendment No. 34.
§ 5.45 p.m.
Lord Howie of Troon moved Amendment No. 34:
Page 4, line 29, leave out ("person who claims") and insert ("fifty or more persons who claim").
§ The noble Lord said: It is not my intention to put Amendment No. 35 in any danger at this stage. I merely wish Amendment No. 34 and Amendments Nos. 36, 37 and 38, which are consequent upon it, to be discussed and considered at this stage.
§ Amendment No. 36: Part 4, line 33, leave out ("he was a member") and insert ("they were members").
§ Amendment No. 37: Page 4, line 34, leave out ("is such a member") and insert ("are members").
§ Amendment No. 38: Page 4, line 37, leave out ("he is a member") and insert ("they are members").
§ I have no intention of pressing Amendment No. 34 in any way. Nor, incidentally shall I delay the Committee very long on this matter because —
§ Lord Howie of Troon
The noble Lord asks, "Why not?" The reason is that this is an extremely sensible amendment and I am perfectly sure that the Government will accept it without any great debate.
The situation is quite simple. As Clause 3(1) stands, the Bill reads:any person—that is, any single person no matter who he be —who claims that a trade union has failed to comply with one or more of the provisions of this Part may apply to the court for a declarationand from that declaration a number of quite complicated and unreasonable consequences may flow.
All we ask for in this modest amendment is that the number should be more than one. For the convenience of drafting I have put down "fifty". But there is no way in which I shall go to the gallows for 50, because it might be 25, 75 or some other number. However, it is unreasonable that something of this nature should be able to be challenged by one person alone; it should be challenged by a number of persons. Fifty is a large number in some circumstances but in terms of trade unions —and especially in terms of the type of trade unions which the Government Front Bench have repeatedly referred to in this debate; namely, the large trade unions-50 is really a very small number. However, it is more than one single person who might be described as an enthusiast or a malcontent or who might have other even more uncomplimentary names applied to him. One seems to me to be too small.
665 Let me say this and let me in a sense contradict myself —but I hope not fatally. It is quite right that one person should be able to object when we are talking about an individual wrong —that is, an individual wrong suffered by an individual person. But I do not think that is really the context in which we are talking here. We are talking about general wrongs in terms of trade unionism, and so on. While it is right that an individual person should be sufficient to object to an individual wrong, I am not sure that it is right in this case for one person to object to a general wrong. The one person who sees the general wrong should be able to gather enough adherents and supporters to show that he is not a mere malcontent but is indicating something which is general and which has given rise to general unease.
That is the purport of this very simple amendment. I am asking the Committee to amend the Bill or to indicate to the Government that the Bill ought to be amended in such a way that we talk about support for a general wrong rather than for what might be no more than the whim of an individual. I do not think that I need to say any more on this point at this stage. I beg to move.
§ Lord Dean of Beswick
In rising to speak to Amendment No. 34, I should also like to speak to Amendments Nos. 35 and 39.Amendment No. 35: Page 4, line 29, after ("person") insert ("who complies with the conditions in subsection (1A) below and")Amendment No. 39: Page 4, line 38, at end insert —("(1A) The conditions are that the person produces to the court evidence that the branch or section of the union of which he is a member supports, or 50 members entitled to vote in the election under the provisions of this Part support his application.")These two amendments cover the same subject. I go a long way with what the noble Lord, Lord Howie of Troon, said when he moved his amendment and with the terms in which he moved it, but I diverged a little from him when he referred to the individual. Although this Bill is mainly about the protection of the individual, we must also make sure, where we can, that the objectives of the Bill and of the Government —although I am totally against the objectives of the Government —and the spirit of the Bill are not frustrated by individuals.
There are many individuals around who, in my opinion, would seek every opportunity to embarrass the trade union movement and their own individual trade unions. One only has to mention a statement that was made a short time ago in this noble House on the behaviour of certain individuals at public inquiries into motorways and that type of thing to realise that they breed a type of animal who almost becomes a professional protester.
Amendments Nos. 34, 35 and 39 do their best to protect the trade unions against that. I know that my party has no desire to restrict anybody who has a genuine grievance. I hate to make comparisons with such places as clubs or other organisations, but in many organisations it is normal for a round robin to be used where a person thinks that he has a genuine grievance. One gets a sufficient number of signatures to the document which, if not specified in legislation, may be inserted into the particular union's rules as the basis for a bona fide complaint. For instance, my own 666 union, the AUEW, will not lightly accept a complaint against any of its functions unless that complaint is raised at a branch meeting. It is well known that, although the AUEW is one of the front runners in the postal ballot and that type of thing, it also has a very high regard for branch life, though obviously that has diminished because of the drop in union membership. If you require to raise a complaint, it is normal for it to be raised at the branch meeting. It can also be raised at the executive meeting of the union. If the complaint receives the bona fide stamp to go on to the next stage, it can eventually end up in what at present in the AUEW is the appeals tribunal, which meets quite frequently and which is manned by lay members. Therefore, the appeal is not heard by professionals in the union; it is heard by lay members who are elected for that specific purpose.
There is, particularly if you work in a factory, another way where a large number of trade unionists are based on factory branches. I have had experience of working in both types of place. I worked at the giant factory of GEC at Stretford Park, Manchester, where certainly 50 per cent. of the people employed were members of the AUEW. Their complaints went through their branches, and, if they wanted to complain about an action of their own works committee which they thought was acting in too dictatorial a manner, they could always raise it with their branch.
In the same factory—and in the main we are speaking about the large factories when we talk about a variety of trade unions having membership there —there would be factory branches, probably of the T & G and the General and Municipal Workers' Unions. I do not go too far along the road with the noble Lord, Lord Renton, regarding victimisation within a factory of people who may take a minority view. One can only speak from one's own experience in life. From the age of 14 I have worked in engineering, and 10 years ago I was elected to another place. As an active trade unionist, including acting for a number of years as shop steward, I never came across victimisation in a factory where people, even remotely, would suggest that one ought to take a specific action or meet the consequences. I am not saying that it never occurs, but it is totally alien to my experience. If it has happened in some places, it is to be deplored, but I can assure noble Lords that it must be among the smallest minority, because I have worked at three factories in my life and have found total freedom to cast votes as required.
I do not wish to detain the Committee much longer. Where a system exists in a union's rules which enables complaints to be made, based on the fact that there is a procedure which enables members complaining to have a fair hearing, we ought to leave the situation as it is. If the Government are not minded to do that, they may like to look at the suggestion for a number of about 50, because, if a complaint is genuine, I do not believe it is difficult to get 50 people as signatories to that complaint. It may well be that the 50 would all be from the same factory branch.
I do not wish to detain the Committee much longer on this issue. I think I have made the point quite seriously that some sort of caveat ought to be entered 667 to deter the type of people —and there are many around —who would become mischief-makers or who are to say the least, frivolous and would seek to impair the very spirit of the Bill which noble Lords are trying to process. Therefore, I speak in support of Amendment No. 34 and at the same time speak to my Amendments Nos. 35 and 39.
§ Lord Denning
I hope that noble Lords will not accept these amendments. A constitutional point arises here. Nearly 300 years ago there was a great case in the courts —that of Ashby v. White, where a gentleman at Aylesbury went to the returning officer who refused to accept his vote. It would not have affected the result of the election at all, but he brought his action in the courts, and Lord Holt, in a celebrated judgment, said that every man had a right to vote and if he was deprived of it, he had a right of action in the courts of law.
In this case any single man may be interfered with in his vote: he may be constrained from voting; he may be stopped from going to the voting station if it is a workplace ballot; or, if it is a postal ballot, the post may be interfered with or even the postman. Any individual who is deprived of his right to vote should have a remedy and it should be available to any person who is wrongfully deprived of it.
The remedy need not be carried to extremes, because the person can make an application to the judge. The judge can refuse to make the order or not. If he holds that there has been a contravention, it is for the judge to make such order as he considers appropriate. So there is ample machinery for dealing with busybodies or people who are not justified at all. But I would hope that any person who has been wrongfully deprived of his right to vote would have a remedy. So I ask noble Lords not to accept any of these amendments.
§ Lord Dean of Beswick
In view of what the noble and learned Lord has said, I should like briefly to come back to this point. The Bill, when it becomes an Act, will imply that the fact that you vote in a postal ballot means that under the law you have voted. Perhaps the noble and learned Lord, Lord Denning, will tell me what he means when he says that a person may vote by postal ballot and be interfered with. What does he mean? I am assuming that the Act will say that if the person gets the postal vote, fills in the ballot form, and puts it in the post box, the trade union will have total immunity if that action is carried through. Is the noble and learned Lord, Lord Denning, saying that that is not the case?
§ 6 p.m.
§ Lord Harris of Greenwich
I am speaking primarily to Amendment No. 39 to which the noble Lord, Lord Dean of Beswick, referred. I would be hesitant, for the reasons given by the noble and learned Lord, Lord Denning, to support an amendment of this kind. I have no doubt that the description of his own industrial experience as given by the noble Lord, Lord Dean of Beswick, is entirely accurate. However I must draw his attention —as I did when we discussed Amendment No. 21 last week —to what actually happened in the affairs of the Electrical Trade Union in 1961.
668 There was intimidation there. People who attempted to expose what was a conspiracy by the Communist Party were proceeded against by the communists who then controlled the ETU, and widespread intimidation was used against them. If at that stage they had faced the problem that they would have to have had either the support of a branch, or the support of 50 members of the union, it might have been extremely difficult to bring some of those abuses to court in the first place.
The malpractices which then took place, often occurred in branches which were controlled by the Communist Party. There was widespread ballot rigging in those branches. In a situation of that sort it would seem to me wholly unreasonable to assume that the branch in question would be content to have that matter tried before a court.
Apart from that, the difficulty of getting 50 people who would gladly certify that in their view there was a matter which should go before the court again dodges the question as to what happens when there is intimidation. It is pointless to say that there is no evidence of intimidation because we all know perfectly well that there have been a number of such examples which have been widely publicised in the press. Accordingly, regarding the amendment to which the noble Lord, Lord Dean of Beswick, and his noble friends have put their name, Amendment No. 39, speaking entirely for myself I would be resistant to the idea of adding that to the Bill.
§ Lord Renton
I also oppose this amendment. May I say briefly, even though it presumes to supplement what the noble and learned Lord, Lord Denning, has already said, that the courts have adequate powers for dealing with frivolous or vexatious litigants, which is what the noble Lord, Lord Howie, was concerned with. The courts can strike out actions which are brought by them and award costs against them. That in itself is really quite a sufficient safeguard.
As the noble and learned Lord, Lord Denning, stressed, there is the need —and we cannot over-emphasise it —to protect the rights of the individual member of trade unions. If we have something like either this amendment or Amendment No. 39 written into the Bill it will obliterate those rights before we have even tried to establish them. This amendment should be strongly opposed on both sides of the Committee.
The Earl of Gowrie
The effect of this group of amendments would be to impose what might be called a trigger before enforcing the requirements of Part I. Amendments Nos. 35 and 39 from the official Opposition would provide that an individual who took his union to court would have to produce evidence either that his application was supported by his branch or section of the union, or by 50 members entitled to vote in the election about which he was complaining. The other amendments, Nos. 34, 36, 37 and 38 moved by the noble Lord, Lord Howie of Troon, take a somewhat different form although their practical effect would be similar. They provide that applications to the court should have to be made, rather than by an individual, by 50 or more members of the union.
669 Whichever way we go, whether we go the way of the noble Lord, Lord Dean of Beswick, or the way of the noble Lord, Lord Howie of Troon, we are, as a Government, wholly opposed to a triggering mechanism of this kind. We are opposed to it on grounds of principle and practice. The grounds of principle could not have been better expressed than by the noble and learned Lord, Lord Denning, and of course it is always a great joy when one happens to have him on one's side, as one does not always happen to have him. He was echoed forcibly and ably by my noble friend Lord Renton.
This Bill provides rights not just for union members as a whole, or as a group, in society but for union members as individuals, and it is therefore right in principle that individuals should be able to enforce these rights. It cannot be right, for instance, that 50 union members should have to declare themselves publicly and jointly in order to gain the right to vote secretly and individually. Moreover a trigger mechanism would also run directly counter to the existing common law position under which a trade union can already be taken to court by a single member where, for example, it breaks its own rules or holds a fraudulent election.
There would surely be no logic in restricting enforcement of the new statutory rights, which are in many ways complementary to existing common law rights, to a group of union members when the existing common law rights can be enforced by a single member. Also in practical terms it could be extremely difficult for a member, or even a small group of members, in a union to organise the support which would be required by these amendments. Amendments Nos. 35 and 39 give a member seeking a declaration from the court that a union has failed to comply with the requirements of Part I the option of getting the support of the branch or the section of the union to which he, or she, belongs or of getting the support of 50 members. I do not think that the first of these alternatives is even realistic in its own terms. One can imagine many circumstances in which a member could have a legitimate complaint but not be able to get the backing of his section or branch in pursuing it.
The second alternative is that a member seeking a declaration should have to have the support of 50 other members of the union who are entitled to vote in the election concerned. That is in practice what the amendment moved by the noble Lord, Lord Howie, proposed. However your Lordships may like to consider as an example the example of a union member working in a branch of a small shop, or let us say a bank in a country town. He might have contact only with a few other union members. Not only might he find it difficult even to get in touch with 50 other members of the union, but they might be understandably reluctant to support an application about something in which they were not directly involved.
For the reasons both of principle, which I agree with the noble and learned Lord, Lord Denning, is the major issue here, and also in terms of practicality, I think that the Committee should reject the amendment.
§ Lord McCarthy
I do not know whether the noble Earl is aware of it, but he has made an important statement. He has put forward as a reason for not voting for our amendment the complementary nature of the common law protection in the rules. As I understand it, it has been the position of the Government throughout this Bill that the whole object of the Bill is that the rules will not count any more. Indeed, Clause 1 of the Bill says:Subject to the following provisions of this Part of this Act, it shall be the duty of every trade union (notwithstanding anything in its rules)".In another place in particular the Minister of State over and over again has said that the provisions of this Bill override the rules in union rule books and call them out of account. We have put down amendments, and shall be putting down further amendments, suggesting to the Government that they must make clear what the position is if there is a jurisdiction under the rules and a jurisdiction under the Bill. The Minister now seems to be saying that we are right, that there is dual jurisdiction, and he is giving the continued existence of the validity of the rules as a reason for turning down the amendment. What is the position?
The Earl of Gowrie
I am not a lawyer, as the noble Lord knows, but it would seem to me to be common sense that an enormous amount of legislation in this country—in fact, I would have thought the bulk of it—runs in a manner complementary to existing common law rights. That is all I suggested.
§ Lord Wedderburn of Charlton
I have a much shorter question for the noble Earl. If that is the attitude, then I can understand it: but is it not also the case that the common law rules to which he lays claim as an analogy also require that the individual member, before he pursues his action in the courts, should exhaust his internal remedies under the union rules? That has no analogy in the Bill. It is a principle that has been somewhat refined in recent cases, but it is still there in the common law; yet that finds no place in the Bill, either.
The Earl of Gowrie
I do not attack the concept of union rules or of the union rule book, as the noble Lord well knows. He would be misleading the Committee if he were trying to equate union rules wholly with the common law, even though, from time to time, they may run in a way complementary to it.
§ Lord Howie of Troon
The noble Earl the Minister worries me a little when he keeps returning to points of principle. We had a difference the other evening over a point of principle. He may have been right or I may have been right—who knows? But on this occasion the noble Earl has sought refuge in the principle of the trigger. Apparently a trigger is wrong in principle if it has 50 people in it but is right in principle if it has only one person in it. I am not sure that that is a point of principle. It is a point of some strength, and I go a long way with the Minister in that. I especially appreciate the remarks of the noble and learned Lord, Lord Denning, concerning the individual in the context of his remarks.
671 When moving this amendment, I particularly said that I was not "hung up" on the figure of 50 persons. The noble Lord, Lord Renton, saw the point right away—and, no doubt, so did other noble Lords. I was anxious that, while having regard to the individual, which I certainly have, we should avoid the possibility of a union being subject to vexatious litigation. That is not something that can be lightly dismissed by saying, "The courts will look after it". Noble Lords know that there are zealots in unions. There are zealots of the Left, whom the Government Front Bench do not like too much. There are zealots of other kinds who are in unions but who are not strongly wedded to them, and who cause trouble within unions. It is only right that unions should be protected from that particular kind of zealotry; they should be protected from individuals whose intent is vexatious.
I believe it is right that the unions should be obliged to gather some kind of support around them. Noble Lords might think the figure of 50 is too large, but I am of the opinion that one is too few. If this kind of complaint is to be made, then surely it should be made with some kind of support. It should surely require at least a seconder, which is the type of support that is commonplace in such matters. If, as the noble Earl said, there were 50 people who had been denied their voting rights in secret, it would not be too hard to have some of them come out and object in public.
I am disappointed by the Government's response, although I lay great weight on the intervention of the noble and learned Lord, Lord Denning, which was a very powerful one. At this stage, I will beg leave to withdraw my amendment, and the Opposition Front Bench will do what they will with their amendments.
§ Lord Dean of Beswick
I have no desire to delay the Committee, but I was a little surprised by the stone wall we met from the Secretary of State, based on the contribution of the noble and learned Lord, Lord Denning. I would have thought that there was some case made for taking a look at this situation, to establish whether there was any way in which the desires of the Opposition could be met.
The noble Earl placed great weight on the advice given to the Committee by the noble and learned Lord. Lord Denning. But he seems to have the support of the noble and learned Lord, Lord Denning, on every occasion so far in respect of this Bill.
§ Lord Dean of Beswick
Other than with a particular amendment which may have been desired (I do not know) in another place. The point I am trying to make is that noble Lords would be wrong to proceed with this Bill on the premise that the overwhelming number of trade unionists, to whom we are supposed to be returning the unions, welcome every measure in this Bill. Quite a lot of trade unionists may have some reservations about the behaviour of some of their leaders in the past, and may have some reservations about their behaviour at present; but if noble Lords proceed on the premise that everything that they do in this Chamber on the advice of Law Lords or others is welcomed with open arms by the overwhelming number of trade unionists outside, then they are 672 whistling in the wind and are proceeding on a false premise. I would ask noble Lords to take that point into consideration when dealing with the rest of this Bill: but to save time, I will not move the amendments to which I have spoken.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 35 to 39 not moved.]
§ Lord Wedderburn of Charlton moved Amendment No. 40:
Page 5, line 4, at end insert—
("( ) Where the court makes such a declaration but the failure to comply consists only of a procedural irregularity which has had, or, as the case may be, is likely to have, no substantial effect in regard to the result of the election, the court shall make a finding to that effect and shall not make an enforcement order.").
§ The noble Lord said: This is an amendment concerning the legal procedure which any non-lawyer can understand. It is one of the very simplest and most sensible principles which the common law of England has devised. Perhaps I may remind your Lordships of the stage we have now reached. This amendment enters the Bill at the point where the court has been apprised of an alleged infraction of the procedures under Clause 2, whatever they turn out to be, and a member has the assent of the court for his complaint. The court is going to make a declaration, and this amendment says that a consideration should be inserted at that point.
§ The amendment suggests that where there has been a procedural irregularity which is not likely to have a substantial effect on the result, then the declaration is the end point of the procedure. We feel that there should be clarity in respect of that matter; that there should be no doubt about it. I was going to base the case for the amendment only on those sound and tried and tested principles of the common law which the amendment represents. But the noble Earl's speech on Second Reading made me look again at the situation in Australia, as noble Lords will by now know, and I found that Section 165 of the Australian Act contains a provision very much along these lines.
I hope the Government will consider this amendment with favour. This provision reached Australia from the common law of England—and I understand that the principles in Scotland are the same. Perhaps I may briefly cite the principles to the Committee. An early statement will be found in the case of McDougall v. Gardiner in 1875. In the Chancery Division Reports, on page 25, Lord Justice Mellish said this:
In my opinion, if the thing complained of is a thing which in substance the majority of the company are entitled to do"—
this was a company law case—
or if something has been done irregularly which the majority of the company are entitled to do regularly…"—
and I pass on to his conclusion—
there can be no use in having a litigation about it, the ultimate end of which is only that a meeting has to be called, and then ultimately the majority gets its wishes".
That is in the case of a mere irregularity. That principle passed into the law of associations much more widely than companies. It can be found in the law of partnerships; it can be found in the law of clubs; it can be found in trade union law.
In the case of Brown v. Amalgamated Union of Engineering Workers in 1976, reported in the Industrial Cases Reports, Mr. Justice Walton faced a concrete illustration of what this amendment is about. This was a postal ballot for a union divisional organiser's post, and there had been a breach of the rules about the delivery of ballot papers. Some had been delivered late and a few had not been delivered at all. This was on the basis of a mistake on the part of certain persons and the case was put on that basis. Mr. Justice Walton had to decide whether those mistakes invalidated the procedures. He agreed that there had been procedural irregularities but in page 158, he said:
Against the background that the executive council had always previously decided all questions of late votes and their merits, I think that this was a mere irregularity, highly regrettable, but not going, as it were, to the root of the election".
§ I quote only those few words of a longer passage which led his Lordship to decide that the election should not be invalidated because this was a procedural irregularity of a well-known category.
This was put to the Government as a sensible idea in another place and, as I understand it, the only difference between the Government and my noble friends and I on the matter is whether it should be put in the Bill; because when the Minister of State on 26th January was presented with the principle of Brown and the AUEW (as it was known in those days) he said to one of my honourable friends:
Will the honourable Gentleman apply himself to the fact that the principle which he adduces was reached without any such trammelling by statute. It was reached by the courts themselves. That is the principle on which they act. They did it without anyone laying down that they had to do so. Why cannot that continue?
That was at col. 769. So it seems that the Government want the practice to continue, precisely of the kind which is in the amendment. It seems that they expect the courts to act in exactly this way.
§ Indeed, this amendment takes one step from the case that my honourable and right honourable friends were making to the Government because we have accepted in this amendment that we have got to the point of the court actually making a declaration—which was not a step which they were acceding to in such a case. Not much may depend upon that, but I point it out to the noble Earl as a difference which we have drawn in this amendment from those moved in another place.
§ We have already had today a case where the Government felt it fit to say: "The amendment that we are putting in might not be necessary, but it is not wholly clear and it is better to make it explicit". I hope that they will take the same attitude to this, which is a genuine attempt to save cost, to save unnecessary litigation, to let the courts know exactly where they are and to let them know that the principles that they should use under this clause are exactly those which have governed common law and the law of association since the 19th century. It is hardly, therefore, a very revolutionary amendment. I beg to move.
§ 6.24 p.m.
§ Lord Denning
Perhaps I may say just a word on this. One starts with the assumption that the trade union has failed to comply with the provisions of the 674 statute. On that, the court is making a declaration that the trade union has failed to comply with the provisions. What then is to be done about it? The next provision in the Bill goes on to say:Where the court makes such a declaration it shall also make an enforcement order unless it considers that to do so would be inappropriate".I would entirely agree that in most of the circumstances envisaged by this amendment the court would not make an enforcement order. But I do not think that the court ought to be ordered about it. It has a discretion, which I have read, under the clause and that discretion should not be taken away by an imperative provision such as this, which takes away the discretion of the court. No doubt, in most cases the courts would act just as the amendment suggests but its discretion to act otherwise should not be taken away.
§ Lord Renton
Under the provision of the third line of subsection (3) of Clause 3, the court is to make a declaration. If the court finds, in the words of Amendment No. 40, that the failure has simply consisted of a procedural irregularity, presumably the declaration would say so. I agree with the noble and learned Lord, Lord Denning, that no injustice would be done by leaving it like that. The court, whatever it finds, is free to find what the amendment proposes. One naturally has some sympathy with the spirit of the amendment but technically it does not seem to be necessary.
The Earl of Gowrie
The amendment is concerned with a situation where there has been an infringement of the Bill's requirements, but where the infringement has been of a trivial nature and did not have a substantial effect on the result of the election. These are clearly the kinds of situation which a court would, in any event, take into account in deciding whether it would be appropriate to make an enforcement order.
As to the possibility of vexatious litigation being brought over trivial and bizarre matters—and we have already discussed this in another context—the noble Lord, Lord Wedderburn, must bear in mind that the possibility of substantial costs being awarded will act as a strong disincentive to those who attempt to bring trivial complaints before the courts.
Having said that, it would not be right—and I think that few in the Committee would think it so, certainly, to judge from what has been said—to go as far as to indulge (to borrow the phrase of the noble and learned Lord, Lord Denning) in an imperative provision to prevent the court from making an enforcement order in such circumstances as the amendment proposes. That will be to restrict the court's ability to weigh the issues involved in the light of all relevant circumstances. I think that the noble and learned Lord has shown us that the courts are given sufficient flexibility in this Bill to distinguish satisfactorily between the trivial complaint and the real one. On that basis of what I take to be the Committee's reluctance to go for an imperative provision, I hope that the noble Lord will agree to withdraw this amendment.
§ Lord Wedderburn of Charlton
My submission to your Lordships is that what your Lordships have heard 675 reflects a genuine difference of appreciation of reality. I do not believe that the noble Earl (if I understood him correctly) is right in suggesting that not to have this amendment would save costs. It might be arguable that this amendment would make the saving of costs more likely, but that is a minor point. What is important is that both the noble and learned Lord, Lord Denning, and the noble Earl and others of your Lordships who have spoken want the courts to have a discretion to make an enforcement order even in a case where the irregularity is a procedural irregularity— which, as I have said, is a well-known term in the law of association—even where it will have, and could have, no substantial effect in regard to the result.
I am really rather astonished at the Government. The Government come along again and again and say— and the noble Earl will tell me if I do not get their case right—"We want to get the confidence of trade unionists". They do not care about trade union leaders; they want the confidence of trade unionists. I take it that they want the confidence of active trade unionists; because not all of them can be thrown out into the cold. The whole operation of the thing depends upon them. What every active trade unionist knows—and I say this with the greatest respect to the noble and learned Lord, Lord Denning—is that the English courts have not been very good at exercising discretions in regard to trade union law. These are the same courts who decided the Osborne judgment; and, case for case, on balance (and some cases are better than others from anyone's point of view), they have not been very good at it. And one of the objects of amendments like this, in a sense, which the Government might have thought was helpful to them, would be that people would know where they stood.
But it will be possible now for a shop steward to say with complete veracity to his members that this Government want to leave it obscure and want to give the judge the right, when he thinks it appropriate. Nobody knows what that means; maybe in many cases he would not, as the noble and learned Lord suggested; in many cases the courts would not make an enforcement order. But in some cases—we do not know what they are—even though only a procedural irregularity is involved, and even though it will have no effect at all upon the result, the Government are going to give the courts the power to make an enforcement order to make us do something that we do not think it is necessary to do or is possibly contrary to the rules.
The Government are astonishing in giving people that impression and after this Committee stage I would have thought that it was a fair impression. I thought that they would stick to what they said in another place, which was much more reasonable and did not suggest that the courts would ever make an enforcement order in such circumstances. However, we have heard what the noble Earl has said. We have to draw our conclusions. Every step of the way we tread, we find that our impression that was formed on Clauses 1 and 2 is correct. This is to be what the noble Lord, Lord Howie, called the tight bandage of imposed procedure, plus the uncertainties of court discretion. I will not quote the well-known statement of Sir Winston Churchill about the courts and trade unions because it is well known to all noble Lords and 676 certainly to the noble Earl; but it still has some truth in it. The relationship has not been—let us say in neutral language—a happy one, and that unhappy relationship is to have this thrust into it.
We shall not withdraw this amendment. We shall stick with it and it will no doubt be negatived in the usual way, but it would be inappropriate in the light of the debate to withdraw an amendment of this kind.
§ Lord Harmar-Nicholls
The noble Lord, Lord Wedderburn, in moving the amendment, submitted that he wanted to make it clear to the layman. We have heard only noble and learned Lords on this point and so I come in as a layman. As a layman I want to tell the noble Lord that, contrary to what he said, his amendment makes it less clear to me. Without the amendment, Clause 5 as it stands leaves the power and the discretion to the court which will have heard all of the points, all of the evidence and will know all about it. This amendment will put that in some sort of doubt. What is a procedural irregularity, it will be argued, quite apart from the actual irregularity itself. It would make a lot of good business for the lawyers because they could try to present every irregularity as a procedural irregularity, which means that the court's full discretion ought not to be used, as it will be used if it is left as it stands now.
I intervene only to say that, far from the amendment of the noble Lord making it clear to the layman, I as a layman can tell him that it makes it less clear and I believe much less satisfactory for getting justice.
§ Lord Wedderburn of Charlton
May I say to the noble Lord before he resumes his seat that the phrase "procedural irregularity" is indeed the subject of a considerable amount of interpretation. It is a fairly well-known phrase and would be understood. Of course he is right that one side or another would argue that this is not a procedural iregularity. But of course he cannot have it both ways. As the Bill stands, and without this amendment one side or the other would argue that it is not appropriate for the court to make an order. One side or the other will always make an argument, at any rate if you brief them.
§ Lord Campbell of Alloway
Before the noble Lord sits down, may I ask him a very short question. In view of the criticism that he has again given of the way in which our courts exercise their discretion in trade union cases, would he agree on reconsideration that the Taff Vale case has nothing to do with the exercise of discretion? It was a decision made in law, which the House of Lords Appellate Committee held was right but with which statute disagreed and held as wrong. Does he agree that that had nothing to do with the exercise of discretion? Would he agree that by and large the High Court in this country has exercised its discretion in these affairs objectively, fairly, constructively and in the interests of the community as a whole?
§ Lord Wedderburn of Charlton
The noble Lord, Lord Campbell, invites me to debate a wide area. May I reply with just two sentences? First, I did not quote the Taff Vale case. I cited the Osborne case but if one takes the Taff Vale case, it was a discretional remedy 677 that was at stake but of course it was an interpretation of the law. My attitude in reply to his question may be put thus: by its own high standards, the High Court in this land has had a less than happy relationship in the exercise both of its interpretation of the law and the exercise of discretion in regard to trade unions than in many other areas of the law. I am sure that the noble Lord is as aware as I am of the lecture by Lord Justice Scrutton—no revolutionary by any means—which was published in 1923 in the Cambridge Law Journal where he made just this very point of the difficulty, as he saw it, for the High Court in these matters. I thought it was common knowledge that that was so and I apprehend that, when the noble Lord thinks about it, he will feel that there is some common ground between us on the point.
§ On Question, amendment negatived.
§ [Amendments Nos. 41 and 42 not moved.]
Lord Wedderburn of Charlton moved Amendment No. 43.
Page 5, line 29, at the end insert ("and accordingly this Part shall give rise to no criminal or tortious liability for conspiracy or to any other liability in tort on the part of any person.").
§ The noble Lord said: This is a legal matter. The provisions of the Bill at the moment appear to make plain the Government's intention that the remedies in Clause 3 are the only remedies which should be available for breach of Clauses 1 and 2. The Government have included a formula which is one of the two formulae that can be used for that purpose. This amendment seeks to insert with it the other formula for the purpose which has been used in many other statutes.
§ Whereas the Bill as it stands makes it clear that the people involved have no other remedy than those which are given to members under Clause 3, this amendment would make it doubly clear that no civil liability—and in order to use the time-honoured phrase, criminal liability has been included as well, although I apprehend that there is no risk in reality of that—for conspiracy in the civil law or any other liability in tort as is in civil law can arise from these clauses at the suit of a third person.
§ There has been a considerable development of the law with regard to civil actions which may be brought by third persons based upon a breach of statute. Most of those developments, as did your Lordships' Judicial Committee decision on Lonrho v. Shell in 1981, have in fact narrowed the area. It would be perfectly proper for the Government to say, after the Lonrho decision, that it is very likely that a civil action based upon any breach of duty could be brought by a third person under this part of the Bill. Despite that, in order to make the matter clear—the Government in another place suggested that they wanted to make it absolutely clear that no actions could possibly arise out of Part I except for those which are suggested in Clause 3—it is the view of my noble friends and I that both formulae would be useful to make the position absolutely clear. Historically, the draftsman rather earlier than the mid-1970s liked this formula; later the other formula has come to be used in some statutes. I beg to move.678
§ Lord Denning
This is a legal point. The Bill as it stands is perfectly clear and there is no need for any amendment.
I am grateful to the noble and learned Lord, Lord Denning, for his intervention. I should make it clear that concerning the courts and in law I am not a lawyer and I hope that noble Lords opposite will forgive me. This amendment relates to Clause 3(9). It may be helpful if I begin by explaining to your Lordships the purpose of that subsection, since it is a rather technical provision. The noble Lord, Lord Wedderburn, will appreciate that I am here leaning rather heavily on the advice of my legal advisers, and thus perhaps he will forgive me if my response owes more-to the language of legal textbooks than to the cut and thrust of debate. Subsection (9) ensures that the application to the courts under Clause 3(1) is the sole remedy available to a person in respect of a failure of a trade union to comply with one or more of the Bill's provisions on union elections. This has the effect of preventing any possibility of a union member obtaining redress in the courts for a common law action for the tort of "breach of statutory duty", and thus obtaining a separate remedy, and possibly an award of damages, for his union's infringement of the legislation.
However, it is important to be clear that subsection (9) does not interfere with the rights which a union member already has at common law to take action against his union for acting in breach of its rules (for example, those rules governing elections) or where there has been a fraudulent election. It merely ensures that a union member has only one way of enforcing the rights conferred on him by this Bill.
I should emphasise that subsection (9) is by way of being a precautionary subsection which is there to prevent possible legal uncertainty. As noble Lords who are members of the legal profession will appreciate, I have to say that the provision for special remedies in a statute clearly rules out the possibility of any other remedies being available in respect of wrongs done in contravention of that statute. Nevertheless, doubt could arise and subsection (9) therefore makes it clear that no remedies are to be available against a trade union for its failure to comply with the provisions of Part I other than the extensive ones set out in Clause 3.
Let me turn just for a moment to Amendment No. 43, which, as the noble Lord, Lord Wedderburn, has said, is concerned with both civil and criminal liability. As regards civil liability, a civil conspiracy can take place in the form of an agreement to do an unlawful act or to do an act by unlawful means. But even assuming the existence of any such civil remedy against a trade union, it would be "blocked off' by the provisions of subsection (9) which I have already described. The amendment also refers to "any other liability in tort". The only other such liability which could arise is the tort of breach of statutory duty; but, as explained above, the clear effect of Clause 3(9) is to prevent any such liability arising. As regards civil liability, therefore, Amendment No. 43 is unnecessary. I hope I have been able to explain to a certain extent, and I hope the noble Lord will forgive me when I say that I am not a lawyer. I hope he will withdraw his amendment.
§ Lord Wedderburn of Charlton
I am grateful to the noble Minister. I am quite happy that he is not a lawyer so long as he is happy that I am. I understand the point that he has put in response: indeed, I anticipated it. In a sense the Government are saying that subsection (9) covers the point already. I hope that they are right. I listened to the short and incisive intervention of the noble and learned Lord, Lord Denning. I would have been quite happy if that had come from the noble and learned Lord sitting as Master of the Rolls. But suppose we had the present Master of the Rolls: would he say the same? One does not know.
I think there is a slight risk here of those who act in combination in breaking Part I being seen in some form as possibly liable to civil conspiracy. However, my noble friends and I listened with great interest to what the noble Minister had to say about the rights of members under these rules. It is a very important matter to which we shall return on a later amendment, and in view of that I beg leave to withdraw this amendment.
§ Amendment, by leave withdrawn.
§ 6.45 p.m.
§ On Question, Whether Clause 3 shall stand part of the Bill?
§ Lord Wedderburn of Charlton
On this Question, the Marshalled List does not include a notice from my noble friends and myself concerning our not accepting this clause. But so many things have happened to Clauses 2 and 3 that we feel some point must be made on it, because this part of the Bill has perhaps become clearer in some ways because of its obscurities. The importance of Clause 3 in regard to a number of matters is now beginning to be apparent by reason of what Clause 3 may turn out to be.
I have a number of questions to put to the Government about the operation of Clauses 2 and 3, and especially of Clause 3. May I preface these very simple questions by saying I am sorry that the noble Lord, Lord Campbell, is not still in his place, because in a sense this relates to the question he asked me and which I answered all too briefly, The Government are using the High Court as their major engine of operation in enforcement. We have to understand that that is still so, even though the Government did not—we had no notice of this, and it came as a surprise to us—move Amendment No. 42. Some of the points I was going to make were intended to be made on Amendment No. 42, and so the Government can have no complaint about this matter. They are using the High Court plus such administrative agencies as they have to bring in. At the moment we have only the High Court.
The judges have been placed by circumstances—in many cases not through their personal wish, of course, but by history—in a relationship with the trade union movement which, as I have said before, is less than happy. When in 1971 the legislation tried to compel them into an even more difficult position in regard to industrial relations, some of them spoke out against it. One of those was the noble and learned Lord, Lord 680 Devlin. In 1972 he wrote in the Sunday Times in a famous article as follows:In theory the judiciary is the neutral force between government and the governed. The judge interprets and applies the law without favour to either and its application in a particular case is embodied in an order which is passed to the executive to enforce. It is not the judge's personal order; it is substantially the product of the law…If its enforcement is resisted or evaded, the judge is no more concerned than if he were an arbitrator.British judges have never practised such detachment. The reason may lie in their origin as servants of the Crown or perhaps in the fact that for a long time the law they administered was what they had made themselves. A mixture of the two has left the High Court with the power to enforce its order in civil cases by treating disobedience as contempt itself".I break off to say that I hope I did not read too quickly for anyone to think that the noble and learned Lord, Lord Devlin, was saying that the judiciary is not independent. Of course he is saying that it is independent. What he is also saying is that it is not neutral, and he goes on:These high powers make the British judiciary more than just a neutral arbitral force. On the whole their wise and cautious deployment has enabled the judiciary to use its reputation for impartiality and independence for the public good. But it is imperative that the high powers should not be used except in support of consensus law. If the judges are to do more than decide what the law means, if they are also to speak for it, their voice must be the voice of the community: it must never be taken for the voice of the government or the voice of the majority".The categories of the noble and learned Lord would take much longer than I would dream of taking now to distinguish consensus law from the voice of the community or, the voice of the Government or the majority, but it is an extremely important distinction.
In regard to Clause 3, since it deals with enforcement through the High Court, the first point that must be made on the record somewhere is that it is our belief that the courts are being propelled into just such a similar position. Indeed, the problem which is facing the Government in bringing to birth, as midwife, this fledgling new Clause 2 is to know just how far to leave the matter with the High Court and how far to bring in an administrative agency. On looking at it, that is no doubt why they did not move Amendment No. 42.
But there is a second point, which is much more practicable and much shorter, in a sense, that goes with it. What is the area which in practice has been one of the most difficult areas for trade unions to accept in the exercise of the discretion of the English and Scottish courts? It is the interlocutory injunction or the interim injunction—the injunction which is granted theoretically to preserve the status quo. But, as every writer in America and England since 1910 has said, the interlocutory injunction does not merely preserve the status quo in an industrial dispute.
The rules of the interlocutory injunction are appreciated and apprehended by trade unions as extremely unfair. Whether they he right in that or not, they are regarded by them as much more unfair since 1975. All the plaintiff now has to show is not a prima facie case: now, under the new rules of procedure, merely a serious question to be tried. As soon as the union acts—it may be some quite minor infringement of the civil law—the injunction must be granted in the discretion of the court, if the balance of convenience so provides and there are no other factors affecting discretion. Whether or not they are right in thinking 681 that unfair, the issue arises on this Bill whether there is any interlocutory jurisdiction in the courts, and if Clause 2 has become a muddle, the Government, after the debates in another place, left the answer to that question in such a muddle that it is difficult to know what to make of it.
Without making all the citations, the Minister of State, Mr. Gummer, said very different things at different stages. At some stages, he said that there would be no interlocutory proceedings allowed; that is to say, the court could not give a remedy to a member who came along and said, "No one started the elections, but they are going to draw up the lists and I can show you that they are going to have the lists all wrong and my name will not be on them."
One reason why one could say that there could be no interlocutory relief under this Bill is that it is a normal rule of English procedure—and I believe that the interim interdict in Scotland is the same—that you cannot get a declaration in interlocutory or interim proceedings. If that is right, that is the end of the point and the Government's answer must be: no interlocutory proceedings. It was left obscure whether you must wait until the election has been held. At one stage Mr. Gummer said that the courts would not have an interlocutory jurisdiction, except in the case of amazing evidence of appalling and widespread fraud. That is a new category in the law—amazing evidence, not convincing evidence, of appalling and widespread fraud. I cannot believe that that is the right answer.
But he suggested then, and on a number of other occasions, that the Government intended there to be a residual category where the courts could—before the election was held; indeed, at the earliest possible stage—step into these proceedings. If that is to be done by the courts, it will presumably have to be done by some new procedure, because the Bill allows only for a declaration, and unless the rules of the Supreme Court are to be changed, as I understand it interlocutory declarations cannot normally be granted. So this would have to be done through a speedy trial and this defeats the point of the interim application, because even a speedy trial can take some weeks to bring on, and maybe some months.
So what is the procedure which the Government have in mind? Do the Government see the courts coming in on an interlocutory basis? I revert to my previous point in saying that I hope not. In a sense, I hope that the Bill says what it seems to say, that the matter will be dealt with on a full and proper trial basis and not on these unsatisfactory interlocutory procedures. But if the Government intend interlocutory procedures, how do they intend to have them with declarations? And if they intend to have them in very extraordinary cases, as the Minister of State suggested in another place, will they please say what they mean so that we can all know what to expect? I made this intervention because clause stand part is the only place to make it, now that Amendment No. 42 has not been moved by the Government. There is a sense in which my noble friends and I should like to hear the answer of the Government, before knowing what to do on the Question that Clause 3 stand part.
§ Lord Gray of Contin
I can quite appreciate why the noble Lord, Lord Wedderburn, would feel strongly about Clause 3, because there are a certain number of issues on which he feels that matters have not yet been resolved. But I think that my noble friend Lord Gowrie explained quite clearly the process which is taking place at the moment and how the Government hope to set about what action they may take as a result of the success last Thursday evening of my noble friends.
However, with regard to Clause 3, this clause provides what might be termed a three-stage enforcement procedure. Stage one, which is to be found in subsections (1) to (4), involves the court in deciding the fundamental question of whether or not there has been a failure to comply with one or more provisions in Part I of the Bill. Any trade union member who alleges that his union has infringed one or more of the requirements on elections may apply to the court for a declaration to that effect within a year of the result of the elections being announced by the union. Where a court finds that there has been a failure to comply with Part I of the Bill, it will normally make a declaration to that effect, specifying the provisions with which the union has failed to comply.
The second stage of the procedure, which occupies subsections (5) to (8) of Clause 3, involves the court in deciding whether to accompany its declaration with an enforcement order, and if so, in deciding what form that order should take. Normally where it has made a declaration, the court will clearly also want to make an order, but it can decline to do so where it considers that to do so would be inappropriate. But assuming that the court does decide to make an enforcement order, what is of crucial importance is that it has wide discretion to match the terms of its order to the scale of the failure which has occurred. Thus an order may take one of three forms.
Secondly, the court may order the union to take such other remedial steps as are specified in the order. For example, if the infringement consisted in votes having been inaccurately counted or counted according to, say, the block vote principle, the court might wish to order votes to be recounted rather than a fresh election to be held. Thirdly, the court may require the union to abstain from such acts as are specified in the order, with a view to ensuring that a similar infringement does not occur in the future. In other words, the court may simply tell the union to ensure that the same failure does not occur again. That is perhaps the most likely remedy where, for example, there has been some interference with an individual's opportunity to vote, but where clearly it has not affected the outcome of the election.
These are all examples of the flexibility of Clause 3 and I commend it to your Lordships. I know that the noble Lord has posed a number of questions which he suggests relate directly to what happens in Clause 2. But I cannot give him direct answers to those at the moment because, as my noble friend has already explained, the Government will in due course consider what action they may have to take as a result of the success of noble Lords last Thursday night in their amendment to Clause 2. But in the meantime I commend Clause 3 to your Lordships.
§ Lord Denning
May I say one word upon this? My noble friend Lord Wedderburn has rather suggested that the judges in some way have not done as much as they should have done. I have been involved in most of the cases involving trade unions in the Court of Appeal for the last goodness knows how many years. I should like to say that we have gone by the statute, we have interpreted the Act of the legislature as best we could, and I hope have been completely impartial. In some cases, we have decided in favour of the trade unions; in other cases, against them. But we have done our best to be impartial and independent. As to Clause 3 being part of the Bill, it seems to me that what has been said is amply sufficient. This clause itself defines the remedies and says that an application to the court under that clause is to be the remedy. There are therefore no problems about injunctions or anything of that kind. There is simply the application under this provision, and the judge can there do what is right and appropriate in the circumstances. I suggest that this clause should certainly stand part of the Bill.
§ Lord McCarthy
I do not want the noble Lord, Lord Gray of Contin, to make another speech. However, as we are now dealing with Clause 3 I would beg him, please, to give us an explanation as to why he is not answering our questions about why the Government do not know what they are going to put into Clause 2. I beg the noble Lord not to continue all night to fail to answer our questions.
§ Clause 3 agreed to.
This would be a convenient moment to break off the Committee stage of the Trade Union Bill. I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to,
§ House resumed.
§ Lord Ponsonby of Shulbrede
My Lords, before the next business is called, may I ask the noble Viscount to indicate when consideration of the Trade Union Bill will be resumed?
My Lords, consideration of the Trade Union Bill will be resumed at 7.45 p.m.