HL Deb 24 July 1986 vol 479 cc447-56

1 Page 2, line 19, leave out subsection (4) and insert— (4) The Transfer of Undertakings (Protection of Employment) Regulations 1981 shall apply to the transfer of the dockyard undertaking or any part of it whether or not, apart from this provision, the undertaking would be treated as an undertaking in the nature of a commercial venture for the purposes of those Regulations, and, for those purposes, the services of the qualified dockyard service employees together with the rights in or over the dockyard and property used for the purposes of the undertaking shall be treated as a part of that undertaking capable of being transferred as a business whether or not the company which is to become their employer also provides designated dockyard services.".

The Commons agreed to the above amendment with the following amendment:

2Line 3, after "shall" insert ''subject to subsection (4A) below''.

Lord Trefgarne

My Lords, I beg to move that the House do agree to the Commons Amendment No. 2 to the Lords Amendment No. 1. It may be for the convenience of your Lordships if I speak at the same time to Commons Amendments numbered 4 to 13 to the Lords Amendment No. 3 and to the Commons consequential amendments to the Bill, numbered 14 to 16.

When this Bill was considered at Third Reading on 10th July your Lordships agreed to an amendment moved by the noble and learned Lord, Lord Denning, which sought to provide that part of the Transfer of Undertakings (Protection of Employment) Regulations 1981, which referred particularly to an employer's duty to inform and consult trades union representatives about a transfer, should be set out in the Bill itself.

Your Lordships may recall that I questioned the value of spelling out in the Bill selected parts of regulations which are already the law of the land and which the Government are not only obliged to follow under Clause 1(4) as drafted but which the Government wish in any case to follow. Be that as it may, in view of the strength of feeling of your Lordships at the time I have not sought again to reject the amendment: rather, I have accepted the principle of the amendment which your Lordships agreed to.

In order to give full effect to the wishes expressed at Third Reading on this amendment I have discussed with the noble and learned Lord, Lord Denning, and other noble Lords, the amendments which need to be made to your Lordships' Amendments Nos. 1 and 3 in order to set out more precisely the particular sections of the regulations concerned and to ensure that they fit properly into the Bill as a whole.

I am most grateful to the noble Lords concerned, and in particular to the noble and learned Lord, Lord Denning. I believe that Amendments Nos. 4 to 13 to Lords Amendment No. 3, the resultant technical amendment to Lords Amendment No. 1 and the consequential Amendments Nos. 14 to 16 have overcome the drafting difficulties and give full effect to the wishes expressed at Third Reading. I beg to move.

Moved, That this House do agree with the Commons in the said amendment.—(Lord Trefgarne.)

Lord Denning

My Lords, I thank the noble Lord, Lord Trefgarne, for the way he has met the points we raised during the progress of this Bill through the House; so much so that in a way we are in agreement. However, I want to make sure that the amendments we made to Clause 1 are properly printed. If one refers to the amendment to the Bill as originally passed—Amendment No. 117, to subsection (2) on page 2, which is important in many respects—I do not see it mentioned in the Bill. However, that is a printing matter.

At an early stage we took objection to the legal structure proposed under the Bill. We said that the Government were separating the bees from the hive and that they ought not to do that. If a transfer was being made they should transfer the bees and the hive together. Amendments were tabled for that purpose and accepted by this House. I do not see them mentioned and I presume that it must be an oversight. At all events, I felt that I should mention that printing query first.

I should like to give the reason underlying the discussion in this House and the course which we followed. I refer back to the report of the Defence Committee of the House of Commons in July of last year. Paragraph 20 stated: There is strong reason to suspect that 'consultation period' is in any case a misnomer, and that the Government has already decided for its preferred option". A little further on the report continues: By its handling of the consultation process, however, the Government has forfeited much of the goodwill that might have been forthcoming for a resolute attempt to secure the long-term future of the yards. If genuine consultation had been attempted, it is hard to conceive of methods less calculated to lead to the Secretary of State's 'wide, constructive and fruitful discussion' than those which have been employed on this occasion". That was the criticism of the Defence Committee. It said that there had not been full or proper consultation with the trade unions on the matter, and if there had been all the trouble might have been avoided.

Because of that the amendments which we put forward, taken straight from the directive of the Community and the Transport Act 1981, secures for the men full information and consultation. Full information is to be given in writing as to when the transfer is to take place, to whom it is to take place, the legal, social and economic implications of it, and the measures which are to be taken which affect the men. All those details have to be put down in writing for the trade unions to consider.

The trade unions can then study those matters and put forward their objections and representations. The Government will then have to consider them and if they reject the trades union representations they have to give adequate reason. It is to see that there shall be full information and proper consultation that the amendment was tabled and passed by your Lordships' House. I am glad to say that it has now been virtually accepted by the Government.

Apart from that, in some of the 1981 regulations the only remedy for the union or the men if there was not proper consultation was to go to an industrial tribunal with appeal to an employment appeal tribunal, and no further. Owing to the importance of this case we took the view that the recourse should not be just to the industrial tribunal but should be to the High Court in England and to the Court of Session in Scotland, because that deals with both sides. If there has not been proper consultation and information, then the trade unions can go to the High Court or the Court of Session to ensure that there is proper consultation. I am glad to say that after some discussion the Government have agreed to recourse to the High Court for a declaration as to whether they have done their duty or not. I think it follows that if they do not do their duty, the transfer must be held up until they have done so.

So, that is a most important provision in the Bill, which will now leave your Lordships' House and receive the Royal Assent. However, I cannot leave this matter without making one or two further observations. In the Commons last night—or rather early this morning between 3 and 5 o'clock—the Government made it clear that their timetable remains unaltered and that they will nominate the contractor in, I think, November and will have the vesting date on 1st April next year. They mean to go forward with their plans without anyone knowing at the moment what their option will be, which company will take over the show, whether it will be British or foreign owned, and so on. Nothing of that appears in their timetable, which they mean to push through.

I feel I must pronounce a warning that in the first place they must go through this further information and consultation process properly with the trade unions and I very much doubt whether they will be able to keep to the timetable which they have set themselves. They may come under the same criticism as the Committee of the House of Commons made earlier, that there is strong reason to suspect that the consultation period is in any case a misnomer and that the Government have already decided on their preferred option. It has already been decided to force the matter through and to steamroller the business. All I have to say is that I think if that is the intention of the Government they are seriously mistaken because by application to the High Court the trade unions can insist on having proper information and proper consultation before this matter is carried through.

It is very right that it should be so, because if this project is to succeed then in my view there must be agreement between the Government and the trade unions, or the project is bound to fail. The co-operation of the trade unions must be obtained, otherwise they can disrupt the work with go-slows, or they can work to rule and so on. If the project is to succeed it seems to me to be fundamental that there must be agreement between the Government and the trade unions. I think that all of us want to ensure that because progress and change are certainly necessary in the dockyards. When this legislation is passed it will facilitate that. My only plea to the Government is this: please go through all the procedure properly as it is now proclaimed in this statute; go through the proper information and consultation process which is required by the statute.

I thank the Minister very much for the help which he has given on a Bill which at the beginning was obscure. There were at first two or three pages of it and now that we have added to it with amendments I think there are three or four pages more. But I am afraid that it is still terribly obscure, though we have done the best that we can, and I hope that the lawyers will not have to construe the Act afterwards. I hope that after proper information and consultation there will be agreement and that a proper solution can be found to this problem of the Devonport Dockyard.

Lord Stoddart of Swindon

My Lords, before the noble and learned Lord sits down, I wonder whether he can help me. I have listened very carefully to what he has said, which was most interesting and very much to the point, but we are dealing here with the Dockyard Services Bill. As the noble and learned Lord rightly said, TUPE '81 is in place. Am I correct in thinking that these regulations apply not only in the case of the Dockyard Services Bill but also in the case of any other transfer or any other undertaking which may take place?

Lord Denning

My Lords, they apply to transfers of commercial undertakings from one company to another—maybe from the gas company to whatever. They do not apply to a mere transfer of shares. This is a transfer whereby a man has a new employer. In those circumstances the 1981 regulations certainly apply to all those affected and therefore this Bill is of great importance in drawing that to the attention of everybody.

Lord Stoddart of Swindon

Thank you, my Lords.

Lord Kennet

My Lords, I apologise for coming in rather late on this saga. I do so because of the death on Monday of our noble friend Lord Crawshaw, whom we all mourn.

We join with the noble and learned Lord, Lord Denning, in welcoming the Government's change of view about this legislation and we welcome the amendments and the amendments to amendments that were agreed in the House of Commons in the small hours of today. I should like to speak not about the past nor about the Bill which we have now, which I think is in the right shape, but about the future. I want to raise two points which I think that the Government should consider during the Recess. I know that it is wrong to try to make a Second Reading speech during consideration of certain of the Commons amendments to the Lords amendments at the fourth stage of a Bill, but there are just two points I want to raise.

First, the noble and learned Lord, Lord Denning, raised the question of what the unions were going to do with their reinforced powers to enforce certain consultation periods. I understand that there are 18 separate unions at Devonport and to that must be added the unions at Rosyth. I do not know what the total is nationally, but it is considerable. If each of them were to use their new possibility of recourse to the High Court—and I am not proffering any advice to them, still less do I have any knowledge of what they intend to do—they would each have to go separately. That is the way the land lies at the moment. This could impose such a delay on the Government's intended timetable that I think it might be wise of the Government even now to consider the following course of action. They will have an Act of Parliament. They do not have to use it. They could, and in my submission they should, even now reconsider the plc option. I shall not spell it out; time is short, we are in the dinner break debate and the Government know what I mean. It would not be impossible to do that even now, and we believe that it should be done.

The second and wider point concerns the workers in the dockyard industry who now have the added protection for their right to consultation that has been conferred upon them by the noble and learned Lord's amendment, which was effected as a result of a brilliant operation, carried out with exemplary speed by not the youngest of our Members. I for one am struck with great personal admiration for what he has done. So the workers have that. But there are many workers in recently denationalised industries who did not have that protection when their turn came. They were operating under TUPE '81 without the "High Court knobs" on. Presumably however that is water under the bridge. I would not presume to say—and perhaps the noble and learned Lord can help us on that.

However, it is pretty well known that the Government have certain plans for further privatisation of public sector industry. What is to be the position of the workers in British Airways, the privatisation of which is postponed for the moment? What is to be the position as regards water, where legislation is also postponed for the moment? I do not rule out the possibility that the Government may win the next election and carry on with those proposals. I think that it is unlikely but it is possible. What are to be the possibilities as regards the Royal Ordnance factories (except Leeds about which we heard a statement this afternoon) and for gas, which of course is here and now?

Mr. John Lee in the House of Commons was in communication with an Opposition Member of that House at an earlier stage and he said that the questions that I have raised were an effective bar to the Government favouring the noble and learned Lord's amendment. He said that it would not be right to pick out the dockyard workers alone for that added protection, when so many others have not had it and so many others in the future did not stand to have it. I think that there is force in that argument

No doubt the Government being rational and in their heart of hearts quite kindly will bring forward proposals immediately after the Recess to ensure that all the workers in public sector industries whose jobs are to be privatised from now on will benefit from the protection which the noble and learned Lord has dashingly introduced for this one industry—and I mean immediately after the Recess.

8 p.m.

Lord Graham of Edmonton

My Lords, I hope that this is the opportunity for me to make a general response to what has happened, but I know that various amendments need to be moved.

Lord Trefgarne

My Lords, I have spoken to all the amendments and it is therefore open to the noble Lord to do likewise.

Lord Graham of Edmonton

That is fine, my Lords. I begin by acknowledging that at the end of a difficult period agreement was reached, which, so far as we are concerned, will not be breached either here or in another place. However, we are greatly puzzled about the import of what we have achieved. The noble and learned Lord, Lord Denning, I and many others are convinced that we have strengthened protections for the trade unions. But in some discussions people say that nothing has changed; the timetable has not changed and neither have the procedures. We know that there is recourse to the High Court. But as Mr. John Lee said last night in another place, the timescale remains unchanged. We are labouring under some difficulty without recourse to the precise report, but in winding-up he said that we were talking about a full four-month period between the selection of the contractor for the particular yards and the date of 6th April 1987, when commercial management begins.

I think that the Government should take fully on board what the noble and learned Lord said. They may believe that nothing has changed, but the trade unions and the courts may believe that there has been a change, and that may be a matter of dispute which in the event may need to be tested. I am an optimist. I accept what the Government say, that they fully intend to carry out all the provisions of TUPE '81, but they certainly did not intend to do so at eight o'clock on 24th July, with the Bill in the shape in which it is now. They have had to be dragged, step by little step, along the way.

All attempts to write on the face of the Bill bits of TUPE '81 in respect of redundancies, pensions, and so on, were resisted. We were told that all that was taken care of in TUPE '81: "Don't worry lads, it's all there". However, when light was thrown on that document we saw even more than we were told was there. Using the word in its best sense, we have exploited what was there and brought it out into the light of day.

I agree with the noble Lord, Lord Kennet. We cannot advise anyone on what they should do in the light of the changed circumstances. But I can say to those outside the House that circumstances have changed. The Government resisted alterations month after month at various stages of the Bill in this House and in another place. Two weeks ago tonight in this place they were faced with reality, to their surprise and no doubt to their disappointment—

Lord Trefgarne

It was a surprise, my Lords.

Lord Graham of Edmonton

The noble Lord can say that again, my Lords. Three cheers for the Garden Party! The reality was the timescale. Had agreement not been reached by tonight, they would have been faced with another defeat in this House—and I make no forecast—or a delay of three months. As I said this afternoon, the Government are pragmatic. They want in their possession by tomorrow this Bill, and it is a new Bill when we talk about opportunities. It is a great victory not just for the noble and learned Lord, who declared his passionate and emotional interest in the issue by virtue of the long association that he and his family have had with all things naval and with the dockyards. I believe that that was an extra spur, and he has done his duty not only to his conscience but to the city of Plymouth, to Rosyth, to the trade unions and to the nation. I certainly am grateful to him.

The Minister has always sought to be fair. He should not ignore the fact that there is a new spirit in the air, not only in the House but in communities and bodies such as the council of the city of Plymouth and the regional authority of Rosyth. They can now see words on the face of the Bill which give them various opportunities. They will not have to take advantage of them if the Government intend to consult much more positively than they have in the past.

The noble and learned Lord quoted passages from a report which indicated that the committee felt that the Government were treating their responsibilities in a cavalier way. Let us just say that they have learnt from that stricture. I am prepared to be generous. The trade unions have certainly learnt. They have learnt that they have an opportunity to get a better deal. We are not trying to lead them. We hope that out of all this will come the opportunity for common sense and for reflection.

The noble Lord, Lord Kennet, in an attempt to be constructive asked the Government to reflect. They have the opportunity to think again. We on this side of the House are grateful to the noble and learned Lord, Lord Denning. His victory was almost single-handed. But the troops were required to be here and they did not come solely from one part of the House. They came from the Alliance and Labour Benches, and some from the Conservative Benches; but, more important, every single Cross-Bencher in the House that night listened to the debate and came out against the Government's view.

I firmly believe that more people should have taken the trouble to listen to the arguments over the years, without the advantage of the presentation of the noble and learned Lord. They are convincing. We on this side of the House are pleased that agreement was reached. We played a small part. I cannot say that we wish the Bill well. So far as I am concerned, such a Bill dealing with the dockyards could not go to a better place than the knacker's yard. But I wish the trade unions and others well in using the provisions given to them by the amendments to make sure that they can get as much as they can out of the Government.

Baroness Vickers

My Lords, I gather that we are taking Amendments Nos. 3 and 5 at the same time. I should like to thank the noble and learned Lord, Lord Denning, for the trouble that he has taken. He came to Plymouth. We did a tour of the dockyards. He asked innumerable questions. We both came back very much enlightened.

I am disappointed that there were no consultations with the trade unions before the Bill was introduced. I have done my best to get the industrial and non-industrial trade unions together. I am sad that they were not consulted. Surely it is much better to consult before a Bill, because we would then know where we were. As the noble Lord, Lord Kennet, said, there are 18 different trade unions in the yard. They all have their own ideas. I have raised this point before. We may have further difficulties if we are not careful.

Amendment No. 3 provides: Before any employee in a Royal Dockyard is transferred compulsorily without his consent". But the Bill is called something different; it is called the Dockyard Services Bill. Is "Royal Dockyard" a misprint? This point has not been mentioned before. I had an opportunity to discuss the Bill with the Secretary of State before I saw that point. I understand that one has to have the Queen's Agreement if a dockyard is to continue to be called a Royal Dockyard. Perhaps the noble Lord will tell me whether that is correct or not.

I should also like to know what contact we will have with the dockyards in the future. We have a defence debate every year. Until now we have been able to debate the Royal Dockyards. The Royal Dockyards are tied up with the Royal Navy. I should like to know what tie there will be in the future. For instance, will the dockyards be allowed to have Navy days? We never got down to discussing what communication there would be in the future between the dockyards and the Navy. Those points are essential. I have asked about those matters but have received no answer. I have heard nothing new tonight.

I want to know what action will be taken against apprentices and whether the dockyards will keep their apprentices in the future.

Subsection (4C) provides: The Secretary of State shall enter into consultations with the representatives of the trade unions and in the course of those consultations shall"— and the matters are then set out in paragraphs (a) and (b). If the Secretary of State rejects any of the representations, he must give his reasons. How will that be done? Will the trade unions be consulted and then told whether the answer is yes or no? Will the matter be reconsidered? Is my noble friend listening or gossiping?

Lord Trefgarne

My Lords, I am listening.

Baroness Vickers

My Lords, paragraph (d) provides: The measures which the transferee envisages he (the transferee) will, in connection with the transfer, take in relation to such of those employees as become employees of the transferee after the transfer". Perhaps my noble friend will explain what that means.

The noble Lord, Lord Graham, has mentioned other points. I hope that in future there will be good contact between the city of Plymouth and local people; that people will be treated as human beings and will not have to accept all these points without consultation. It is unfortunate that all this should happen after the dockyards have existed for nearly 300 years. I hope that when the Bill is passed matters will be on a better level. We do not want trouble. We have not had much trouble in the past. I have known the dockyards for 30 years now. I feel that we should do everything we can to make the dockyards work well.

I thank the noble Lord, Lord Trefgarne, for what he has tried to do and the Secretary of State, who was kind enough to see me on Monday last. I hope that as a result of those conversations the Government will take a wider view in future. I hope that the human side of such proposals will be taken into account. Transfers are not easy. We want to do the best we can to ensure that people have the jobs that they want.

Some 22,000 people go into the Devonport dockyard each day. They are not all dockyard employees. We must think of the other people who work in the yard and see that they are given the right help in the future. I should like to thank my noble friend for his patience, but I should like to see the more human side of proposals taken into account in the future.

8.15 p.m.

Lord Trefgarne

My Lords, I am grateful to the noble and learned Lord, Lord Denning, for his acceptance of what I now propose and to the noble Lord, Lord Graham, who likewise, as I understood it, despite a number of reservations, accepts what is now in front of your Lordships.

The noble Lord, Lord Kennet, asked me about the implications of what we propose tonight in respect of this Bill in other circumstances where the TUPE regulations may apply. I made it clear on three occasions that with regard to this Bill the Government did not consider that the amendments which your Lordships agreed were necessary. That remains our position. We do not think that they are necessary because they call upon us to do what we were going to do anyway, and that remains our position.

My noble friend Lady Vickers asked about the details of consultation. The requirement upon us is spelt out fully in the regulations to which I have referred and which have been referred to on many occasions during the passage of this legislation. The Government are bound by them. A part of those regulations is now spelt out on the face of the Bill, as was your Lordships' wish. The additional point about access to the High Court has also been included at the instigation of the noble and learned Lord, Lord Denning.

My noble friend Lady Vickers also asked me a number of other points which do not directly arise from the amendments. I will, if I may, reply to her by letter. I hope that that will be satisfactory.

Moved, That this House do agree with the Commons in their Amendment No. 2 to the Lords Amendment No. 1.