§ 3.3 p.m.
§ The Minister of State for Defence Procurement (Lord Trefgarne)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Employment Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
§ Bill read a third time.
§ Clause 1 [[Right to a ballot before industrial action]:
Lord Wyatt of Weeford moved Amendment No. 1:
Page 1, line 12, at end insert—
("(1A) The ballot referred to in subsection (1) above must be a postal ballot if the industrial action is not proposed by or intended to be organised by the principal executive committee of a trade union or of more than one trade union.").
§ The noble Lord said: My Lords, the amendment is different from the amendment narrowly defeated by three votes on Report with the aid of the Labour Party. That amendment would have required a postal ballot only where national industrial action was proposed. The Government were sympathetic, but they were unwilling to accept the amendment because they thought that it could be got round by unions leaving out some members or some locations, making what otherwise would have been national industrial action not national. On the face of it, there could be some validity in that point and so the present amendment avoids that objection. It applies only to industrial action which is not national and which is not proposed by, or intended to be organised by, an executive committee of a trade union or more than one trade union.
§ My amendment therefore covers all industrial disputes which are local but not national. That issue has not been debated or decided upon in your Lordships' House before and therefore cannot contravene the standing order on the subject. It is not a novel idea. Unions already require a postal ballot before industrial action, however small or local, takes place. On 28th March the noble Earl, Lord Dundee, referred to the working of the trade union ballot funds' scheme. He said that in 1987, out of a total of 526 applications by trade unions for funding for a ballot by the Government, 262 were for postal ballots on industrial action.
§ It is clear that there is a growing practice among trade unions for postal ballots for industrial action. They find no problem with that. By now they should all have registers of their members with their addresses or they will be unable to arrange the distribution of postal ballots to their members for elections when they have elections for union executives. If there were any difficulty in obtaining up-to-date addresses in a local dispute, the firm concerned would always be willing to supply their employees' names and addresses. That happened recently in postal ballots for local industrial disputes at Ford and Rover.
§ There is no difficulty in sending out postal ballot forms before industrial action. It is sometimes argued that a postal ballot will make it more difficult to call off a strike because another postal ballot would be required to end it. That is not the case. My amendment merely requires that the ballot needed before industrial action under Clause 1(1) should be postal. There is nothing about having to end an industrial dispute by postal ballot. There is nothing in the Bill which requires that, any more than there is in my amendment. That must be the members' choice, irrespective of what the Bill lays down.
§ It can be argued that a postal ballot before industrial action may delay the start of a strike. That would be a good thing. There is never any need for hurry in starting a strike. The more time there is for reflection, the better. The Government will probably say that they accept that postal ballots before industrial action should be the norm but that they find difficulty in legally enforcing them. That is what they said about ballots for union executives during the passage of the 1984 Bill. They even wrote into the 12 1984 Act how much they would prefer unions to use postal rather than workplace ballots for executive elections. They were warned then that workplace ballots are, can be and would be manipulated.
§ The Government were told that if they did not insist on postal ballots for executive elections in unions, they would later have to come back to Parliament with a measure to enforce them. This is exactly what the Government are doing in this Bill four years later. I must warn them now that if postal ballots for industrial action at local level are not included in this Bill, they will have to come back to Parliament again to ask for the law to be amended. That is inevitable. So why not do it this afternoon?
§ The Government have recognised how easy it is to manipulate workplace ballots for elections. Surely they understand that it is just as easy to manipulate workplace ballots for local industrial disputes. If this amendment is carried, the Government in another place can either throw it out or accept it; it would then be a Lords' amendment which they could accept. Alternatively, they could make amendments of their own to this Lords' amendment, which I hope your Lordships will carry.
§ To pass the amendment would leave some options open to the Government which they would not have if your Lordships do not pass it. If the amendment is not carried, it will be impossible for any provisions whatever for postal ballots before industrial disputes to be included in this Bill in another place. I hope therefore that noble Lords will agree to carry the amendment. I think that we shall be helping the Government if we do. I beg to move.
§ Lord McCarthy
My Lords, the noble Lord, Lord Wyatt, is too modest. This is not a minor change to the amendment which he put down when we discussed the Bill on Report. It is a direct reversal; it is turning through 180 degrees. On Report he moved that, if there was national industrial action, a strike ballot should, by law, be a postal ballot. Now he is saying that if it is not national industrial action and therefore if it is not authorised by a union—if it is not an official strike, but if it is a local, unofficial strike—there should be a legally binding postal ballot. Virtually all national strikes are official and the overwhelming majority of unofficial strikes are local, including one-hour walkouts, overtime bans and things of that kind—instantaneous stoppages. The noble Lord is suggesting a total reversal of a position so that the law should impose a postal ballot upon small-scale, fragmented unofficial strike action, something which this Government have never attempted to do.
The amendment which the noble Lord has moved would require a major change in the 1984 Act because that Act sensibly enough was designed to bite upon official strike action, not upon unofficial strike action. The Government appreciate that to try to impose legal rules of this kind upon fragmented, local, partial, small-scale unofficial action at local level is very difficult or impossible and probably counter-productive.
The detail of the amendment says that:The ballot referred to in subsection (1) … must be a postal ballot if the industrial action is not proposed by or intended to be organised by the principal executive committee …13 That demonstrates a serious lack of understanding of the role which national executive or principal executive committees, as we now have to call them for the purposes of the legislation, play in sanctioning industrial action.
If noble Lords look at the union rulebooks, they will see that on the whole national executives do not organise or propose industrial action. They react to demands for industrial action from down the line. In particular they react to demands for industrial action from the rank and file, if we are talking about local industrial disputes. For example, the rulebook of the National Union of Public Employees states that branches which wish to conduct industrial action must seek the approval of the executive committee. If we look at the rulebook of the AEU, we see that the district committee must ask the executive for the right to hold a ballot in order to sanction, authorise and support an intended industrial action. The rulebook of UCATT or the National Union of Journalists is precisely the same.
The noble Lord, Lord Wyatt, quoted the situation in the EETPU. Of course that union expects there to be a ballot in all authorised official strikes which are the responsibility of the union. But even the EETPU could not expect to impose a ballot under the rulebook for unofficial action taken in no way under the authority of the union itself. Yet that is precisely the thrust of this amendment.
It follows that the amendment would catch virtually all strikes. The legislature and anyone who brought an action would be busy trying to find who had authorised, supported or encouraged this strike and had not had a ballot. The noble Lord is completely reversing the position which he adopted last time. It does not make it any more sensible, it does not make it any easier or more practical and I doubt very much that the Government will accept it.
§ 3.15 p.m.
§ Lord Campbell of Alloway
My Lords, I oppose this amendment in principle for the reasons given by the noble Lord, Lord McCarthy. That may sound odd coming from these Benches, but I pay him the tribute of saying that his analysis is a wholly objective and constructive analysis with which I personally agree.
Apparently the purpose of this amendment is to induce the Government to think again in another place. It is much to be doubted whether it could or indeed should have any such effect. To my mind, for some short reasons which I propose to give, if the amendment were carried it would be the first step, in the Government's step-by-step approach, which was in the wrong direction. What is the norm is not of necessity, in the essence of administrative wisdom, always to be made legally enforceable. Our conventions on Third Reading preclude any full debate. There has been no opportunity to discuss this amendment at any prior stage in the Bill.
It may be said, "Oh, but if the postal method proposed by this amendment had been in force, it might have avoided the alleged intimidation in the ferries dispute." There is no conclusive evidence of that. It may be said, "Oh, notwithstanding problems of definition, there ought to be some special procedure applicable for certain services." That may 14 well be so, but it goes far beyond the scope of this amendment. As was pointed out cogently by the noble Lord, Lord McCarthy, this is of general application; it covers all industrial action.
The principle of a postal ballot applicable to a nationwide or general industrial action called by the PEC, which I supported, was rejected on Report. However, if this amendment had been moved on Report, I should have opposed it. The application of the principle is far from the same. Here the issues are of urgent, immediate consequences. Speed in the decision-making process is of the essence; the numbers involved are relatively few; the economic consequences are relatively small. A very substantial erosion of the traditional freedom and individual right to withdraw or withhold labour lawfully is involved.
It is inevitable that this provision, if it were placed on the statute hook, would be seen by the vast majority of trade unionists as viciously interventionist. According to chapter 5 of the Green Paper which your Lordships debated, workplace ballots are acceptable in these circumstances, and there are no conclusive findings on the question of turnout.
I say in conclusion that, in the wake of the Ford fiasco, it is not so much for the Government to think again along the lines of this amendment, as suggested by the noble Lord, Lord Wyatt of Weeford, but for the TUC to think again on crucial issues which are left within the remit of the trade unions, such as the machinery for the resolution of inter-union disputes, the single union agreements and the no-strike agreements. This amendment has no relevance to such questions; such is not the intention, as was the case with the amendment of the noble Lord which was lost on Report. The amendment as drafted is neither fair, reasonable, requisite nor, as the noble Lord, Lord McCarthy, suggested, practical. The hope must be that your Lordships will not accept it.
§ Lord Rochester
My Lords, from these Benches I made it plain at an earlier stage that we are opposed to the widening by the Government of the definition of "industrial action" which is contained in subsection (7) of Clause 1 and is applicable to subsection (1) and therefore to this amendment. For that reason alone I cannot commend this amendment to my noble friends. However, the provision goes much deeper than that, as has already been said by the noble Lord, Lord McCarthy, and indeed by the noble Lord, Lord Campbell of Alloway.
On Report the noble Lord, Lord Wyatt of Weeford, pressed his amendment that where national industrial action was proposed there must be a postal ballot. We had grave doubts concerning both the definition of the words and the practicability of what he had in mind. But, as the House will well know, we are keen that postal ballots should operate wherever possible. We felt that in the special case of widespread industrial disruption the Government might at least have undertaken to see whether they could build positively on the principle underlying the amendment of the noble Lord, Lord Wyatt.
However, the amendment which the noble Lord has now moved is in an altogether different category. 15 He has told us that the EETPU holds postal ballots before any industrial dispute takes place, however small or local it may be. But even allowing for the somewhat specialised nature of work done by electricians—much of it is carried out in workshops, power stations and other such places—I should be very surprised indeed if this policy is not sometimes flouted. Indeed it may be significant that the noble Lord has not been able to make a similar claim for, for example, the Amalgamated Engineering Union. That is an equally progressive union in this respect.
I can recall from my own experience how quickly tempers can flare if, for example, an employee is sworn at by a foreman. In the heat of the moment he and his mates simply walk off the job. That behaviour would presumably qualify as industrial action for the purposes of this amendment. But it is surely unrealistic in such circumstances to require the people concerned solemnly to embark on the formalities of a secret postal ballot with all its attendant delay and expense. For those reasons I am sorry that I cannot on this occasion support the noble Lord, Lord Wyatt.
§ Lord Carr of Hadley
My Lords, I strongly supported the noble Lord, Lord Wyatt of Weeford, when he moved his amendment on Report. I felt at the time and still feel that the Government made a serious mistake which they will eventually in practice come to regret—no doubt they may well have to come back to Parliament to correct that mistake in another year's time—in not at least taking the principle of that amendment, looking at it and trying to redefine the kind of action that the noble Lord, Lord Wyatt, had in mind in a more acceptable way.
I very much regretted that and I had hoped that we may be able to come back to it successfully on Third Reading. However, like other noble Lords who have spoken, I have to say that I could not possibly support the amendment in this form. Not only does it seek to do something quite different from the amendment that we were discussing at the earlier stage, but it also seeks to do something which I think is positively wrong. I am afraid that I must make that clear but I repeat that I wish that the Government had been wiser at an earlier stage.
§ Lord Trefgarne
My Lords, this is indeed a very important amendment, whose effects would be considerable if it were to be accepted. It could have an impact—not necessarily in the way intended—on many industrial disputes, or the way in which they are organised, and the balloting that is or is not carried out in connection with them.
The amendment directs our attention once again to an area on which we had a most useful debate on Report. There was, as has been said, considerable support for the previous amendment of the noble Lord, Lord Wyatt, to Clause 1.
Indeed I would at this moment pay tribute to some of the very constructive suggestions that the noble Lord, Lord Wyatt, has made in connection with this Bill, some of which the Government have felt able to accept.
16 However, the proposition now advanced is quite different from the one which the House rejected on Report, and I suggest that it has altogether less merit.
The 1984 Act introduced the requirement that to preserve its immunity a union would have to obtain majority support in a proper, secret—and I emphasise the words "proper" and "secret"—ballot before it authorised or endorsed industrial action.
Those provisions have had a profound—and I suggest beneficial—effect. Something over 500 ballots have been identified which have apparently been held in order to comply with the provisions of Part II of the 1984 Act; it is quite possible that there have been many more. We are really a very long way from the days when the norm was for a union to call members out without giving them any opportunity to express their own views about the matter, or on the basis of a show of hands in some carpark meeting which might be intimidatory or unrepresentative, or both.
The right of members to vote in secrecy and to record their votes on a proper ballot paper, is well on the way to becoming an accepted feature of our country's industrial relations procedures. It is good democratic practice, and the Government are determined to do nothing that will put such practice at risk.
Clause 1 of the Bill adds an essential complement to the provisions of the 1984 Act, which are at present enforceable only by employers. It gives a union member the ability to apply to the court for an order restraining his union if it induces him or others to take industrial action without majority support from a proper secret ballot. To be a "proper secret ballot" a ballot will need to satisfy all the requirements set out in Section 11 of the 1984 Act as amended by the Bill. These requirements are rigorous. For example, the method of voting must be by marking a voting paper which puts an appropriate question, or questions, in the required form. The union, its members, officials or employees must not interfere or constrain any of the voters. There are other provisions too.
It is worth noting that the member's right under Clause 1 provides a valuable check that the method of voting in practice meets the statutory requirements. A union member may well be in a better position than an employer to spot a failure to meet those standards.
However, this amendment seeks to impose a further requirement if a ballot is to protect a union against an application by a member under Clause 1 in certain circumstances. The requirement is that the ballot shall be a "postal ballot", and the circumstances are that the industrial action concerned, in the words of the amendment:is not proposed by or intended to be organised by the principal executive committee of a trade union".In this context it is relevant to quote from paragraph 5.6 of the Green Paper, which was in the mind of my noble friend Lord Campbell and which put forward the Government's view that while the postal voting method, with proper independent scrutiny, was the best method of conducting certain union elections and political fund ballots, postal ballots, 17are sometimes much less suitable for strike ballots for which the issues can be of immediate concern and speed of decision making of the essence. In addition, the numbers of those involved in strike ballots can be very small".The result of the amendment could be a rash of unofficial industrial action and considerable damage to good and orderly industrial relations. I should remind your Lordships that the effectiveness of our recent legislation depends critically upon the regulation of the activities of trade unions with respect to industrial action. It has little impact in practice upon unofficial action, and we have nothing to gain by encouraging a reduction of unions' responsibility in this respect.
Another response is conceivable and it could have unfortunate consequences. These might follow if unions reacted to the new requirement by introducing rules which provided that only the principal executive committee could authorise or endorse industrial action. They would be doing that so as to avoid the postal voting requirement. But if this were the only method of authorisation, that committee might come under pressure from members at local level to give formal or blanket authorisation as a matter of urgency. The committee might then find itself forced to give such authorisation on an emergency basis for action which on fuller consideration it might have repudiated.
Major employers' organisations such as the CBI and EEF did not contest the Green Paper statement quoted earlier; nor did they ask that a postal voting requirement should be attached to the protection of union immunity for ballots on any kind of industrial action balloting and still less those to which the amendment refers. They have drawn no abuse to our attention to which a legislative requirement of this kind would be an appropriate response, and we are aware of none. The practical case for this change has not been made.
Your Lordships should, however, be quite clear that the Government firmly believe that postal voting is to be encouraged wherever it can usefully be applied to a ballot on industrial action. My noble friend Lord Dundee, speaking in the debate on the relevant amendment at the Bill's Report stage, mentioned that the Government already encourage the use of postal voting by making the costs of such ballots reclaimable under the trade union ballot funding scheme. He also said that a statutory code of practice about the conduct of trade union industrial action balloting issued by the Secretary of State under Clause 18 of the Bill could recommend that proper postal voting should be used to conduct such ballots wherever that was practicable and offered real advantages in terms of avoiding the possibility of any abuse of members' democratic rights.
I confirm that it is our intention to issue such a code at an early date, as our amendment to Clause 34 indicates, and that it will strongly encourage unions to hold a ballot before industrial action by post wherever this is reasonably practicable. It is clearly right that we should strongly encourage moves towards the use of properly conducted postal voting before industrial action. But it would be counterproductive and damaging to both good industrial relations and the use of balloting on industrial action generally if this amendment were accepted.
18 We must not put at risk the achievements of our legislation by imposing a requirement which is so onerous as to encourage evasion and so drafted as to make that possible. While I appreciate the concern which has led the noble Lord, Lord Wyatt, to table this amendment it is an inappropriate means of bringing about the improvements in industrial action balloting that he seeks. I hope that in the light of these remarks the noble Lord will see fit not to press the amendment.
§ Lord Wyatt of Weeford
My Lords, I cannot see fit to do as the Minister suggests. The noble Lord, Lord McCarthy, thinks that the amendment has something to do with unofficial strikes. It has nothing to do with them. Unofficial strikes are by their very nature unofficial and cannot be controlled neatly by law. It is clear from the amendment that I am talking about a member of a trade union who claims that the union has without the support of a ballot authorised or endorsed any industrial action in which members of that union take part in an industrial dispute.
Many strikes are local and are endorsed by the executive. Then they may or may not be officially endorsed. We are speaking of strikes which are deemed to be officially endorsed. I am trying to persuade your Lordships that if we are to have that clause and the possibility of official strikes being mounted which must be endorsed by the executive, there should be a postal ballot before such strikes as there is for elections for union executives. If you can fiddle a union executive election at a workplace, which you can and do, you can fiddle a workplace strike ballot.
The amendent has nothing to do with unofficial strikes. Local strikes are frequently official or, if they are unofficial, the union concerned is approached and asked to make the strike official. If the union is to be asked to do that, there must be a ballot beforehand for the local people concerned.
Some mention was made of the difficulty unions would have in organising such ballots. That is not so. The noble Lord, Lord Rochester, referred to the engineers and said, "If it is such a good idea, why are the engineers not keen on it?". As a matter of fact, the engineers are keen on it. They have recently been involved in no fewer than two local disputes where they helped to organise local postal ballots. They did that with the aid of employers who supplied them with names and addresses. That is the nub of such ballots; if you can get local names and addresses, you are home and dry. I cannot imagine that the engineers would be opposed to such an arrangement. I cannot see why unions should be opposed to it. Their records should be sufficiently good for them to know where their members are and what their addresses are. If the workplace involved is a local factory where there has been a certain amount of change of employment, surely employers can tell the union the names and addresses of the people concerned.
I said in moving the amendment that I knew what the Government would say, which is what all governments say. They say: "We like it very much in theory and we should like it to be the norm. It would be much better if there were postal ballots before industrial action". They went on saying that about 19 elections for union officials long before the 1984 Act. We told them then that they were wrong, and they have now admitted that they were wrong. I am telling them again today that they are wrong. If they are going to persist in their wooden-headedness, they will be back in a couple of years admitting that I was right and they were wrong.
I am giving the Government the opportunity to accept the amendment or to let us pass it. Then it can be sent to another place where it may be amended again or where some formula may be found which is satisfactory to all concerned. It could then come back to this House and we could look at it once more. To throw out such an amendment by saying that it is a good idea and it should be the norm but that the Government do not want to enforce the norm seems to me to be Cloud-cuckoo-land. I beg to move the amendment.
§ Lord McCarthy
My Lords, before the noble Lord sits down, will he agree that, although he is now talking about strikes which are officially endorsed below national level, he has actually been writing about all strikes that are not proposed or intended by the national executive? Therefore, whatever he may be talking about now, the amendment covers unofficial strikes.
§ Lord Wyatt of Weeford
No, my Lords. It must be read in relation to Clause 1(1). Where there is to be such a ballot, in the case of those which are not proposed or intended to be organised by the executive of a union, there must be a postal ballot.
§ 3.39 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 17; Not-Contents, 168.20
|DIVISION NO. 1|
|Annan, L.||Monson, L.|
|Belhaven and Stenton, L.||Mowbray and Stourton, L.|
|Beloff, L.||Oxfuird, V.|
|Blatch, B.||Rugby, L.|
|Chapple, L. [Teller.]||Somers, L.|
|Gainford, L.||Thomas, of Swynnerton, L.|
|Hylton-Foster, B.||Wilton, E.|
|Kinloss, Ly.||Wyatt of Weeford, L. [Teller.]|
|Alexander of Tunis, E.||Borthwick, L.|
|Allerton, E.||Boston of Faversham, L.|
|Amherst, E.||Bottomley, L.|
|Ampthill, L.||Boyd-Carpenter, L.|
|Ardwick, L.||Brabazon of Tara, L.|
|Arran, E.||Brentford, V.|
|Attlee, E.||Brookeborough, V.|
|Aylestone, L.||Broxbourne, L.|
|Balfour, E.||Bruce of Donington, L.|
|Banks, L.||Bruce-Gardyne, L.|
|Basnett, L.||Butterworth, L.|
|Beaverbrook, L.||Caithness, E.|
|Belstead, L.||Cameron of Lochbroom, L.|
|Bessborough, E.||Campbell of Alloway, L.|
|Blackstone, B.||Carmichael of Kelvingrove, L.|
|Blyth, L.||Carnegy of Lour, B.|
|Bonham-Carter, L.||Carnock, L.|
|Carr of Hadley, L.||McNair, L.|
|Carter, L.||Mais, L.|
|Cawley, L.||Malmesbury, E.|
|Cocks of Hartcliffe, L.||Margadale, L.|
|Colnbrook, L.||Marley, L.|
|Constantine of Stanmore, L.||Mason of Barnsley, L.|
|Cottesloe, L.||Merrivale, L.|
|Craigavon, V.||Mersey, V.|
|Cudlipp, L.||Mishcon, L.|
|Cullen of Ashbourne, L.||Molloy, L.|
|David, B.||Monk Bretton, L.|
|Davidson, V. [Teller.]||Morris, L.|
|Davies of Penrhys, L.||Mottistone, L.|
|Dean of Beswick, L.||Munster, E.|
|Denham, L. [Teller.]||Murray of Epping Forest, L.|
|Donaldson of Kingsbridge, L.||Nelson, E.|
|Dormand of Easington, L.||Nicol, B.|
|Dudley, B.||Norrie, L.|
|Dundee, E.||Nugent of Guildford, L.|
|Effingham, E.||Oram, L.|
|Ellenborough, L.||Orkney, E.|
|Elwyn-Jones, L.||Peston, L.|
|Ennals, L.||Ponsonby of Shulbrede, L.|
|Erroll of Hale, L.||Rea, L.|
|Ewart-Biggs, B.||Reilly, L.|
|Faithfull, B.||Renton, L.|
|Falkland, V.||Ritchie of Dundee, L.|
|Fisher, L.||Robson of Kiddington, B.|
|Fitt, L.||Rochester, L.|
|Fletcher, L.||Sainsbury, L.|
|Fraser of Kilmorack, L.||St. John of Fawsley, L.|
|Gallacher, L.||Saltoun of Abernethy, Ly.|
|Galpern, L.||Sanderson of Bowden, L.|
|Glenarthur, L.||Scanlon, L.|
|Graham of Edmonton, L.||Seebohm, L.|
|Gray of Contin, L.||Serota, B.|
|Gridley, L.||Shannon, E.|
|Hailsham of Saint Marylebone, L.||Shaughnessy, L.|
|Hampton, L.||Soper, L.|
|Hanworth, V.||Stallard, L.|
|Hardinge of Penshurst, L.||Stedman, B.|
|Hatch of Lusby, L.||Stewart of Fulham, L.|
|Hayter, L.||Strabolgi, L.|
|Hesketh, L.||Strange, B.|
|Hives, L.||Strathspey, L.|
|Hood, V.||Taylor of Blackburn, L.|
|Hooper, B.||Taylor of Hadfield, L.|
|Irvine of Lairg, L.||Taylor of Mansfield, L.|
|Jacques, L.||Terrington, L.|
|Jay, L.||Teviot, L.|
|Jeger, B.||Thomas of Gwydir, L.|
|John-Mackie, L.||Thorneycroft, L.|
|Joseph, L.||Thurlow, L.|
|Kilmarnock, L.||Thurso, V.|
|Kinnaird, L.||Trafford, L.|
|Leatherland, L.||Trefgarne, L.|
|Llewelyn-Davies of Hastoe, B.||Turner of Camden, B.|
|Lloyd of Hampstead, L.||Underhill, L.|
|Lockwood, B.||Vaux of Harrowden, L.|
|Long, V.||Wallace of Coslany, L.|
|Longford, E.||Ward of Witley, V.|
|Lovell-Davis, L.||Wedderburn of Charlton, L.|
|Luke, L.||Westbury, L.|
|Lurgan, L.||White, B.|
|McCarthy, L.||Willis, L.|
|Mackay of Clashfern, L.||Wynford, L.|
|Macleod of Borve, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 3.50 p.m.
§ Clause 12 [Extension to non-voting provisions of duty to hold elections]:
Lord Mottistone moved Amendment No. 2:
Page 15, line 28, at end insert—
("except in the case of an official, irrespective of title, who is employed solely for the purpose of administration, who is not a
member of the Principal Executive Committee, whose post has on the last two occasions been filled by competitive interview following public advertisement and whose appointment was carried out by the Principal Executive Committee, the members of which were elected in accordance with the provisions of Sections 12 to 15 of this Act.").
§ The noble Lord said: My Lords, I have been asked to speak also to Amendment No. 3 in the name of the noble Lord, Lord Howie of Troon, whom unfortunately I do not see in his place; I shall be happy to do so. Although my amendment has the advantage of simplicity, it has been pointed out to me that it is not wholly accurate and therefore would not do for the Bill. The amendment of the noble Lord, Lord Howie of Troon, is an attempt to clean up my small amendment.
§ I do not propose to go into all the detail that was gone into on an earlier amendment on these lines. It is well explained in cols. 488 to 499 of Hansard of 28th March. I shall take a couple of points from those debates which I hope will still give the Government cause to think further and, if not to accept the amendment, perhaps to accept that of the noble Lord, Lord Howie of Troon. If neither is acceptable, perhaps the Government would accept one so that it can be amended in another place.
§ Your Lordships may remember that I had support for my earlier amendment, Amendment No. 12, from many parts of the House, in particular from my noble friend Lord Carr of Hadley whom I am delighted to see in his place. My noble friend hoped, as he did on the preceding amendment, that the Government might use it as the basis for an amendment. I had hoped that this might happen on the previous occasion; unfortunately, it did not.
§ Perhaps I may presume to say that my noble friend Lord Carr has a wealth of experience in this area. I think I am right in saying that it is over 25 years since he first became a Minister in the then Ministry of Labour. That is quite apart from his distinguished life in commerce since he left the other place. His support is especially worth noting. I remember also that I commented on the support of the noble Lord, Lord Murray of Epping Forest, who told us about the actual situation.
§ In replying to the debate, my noble friend Lord Dundee said that he accepted much of my argument. It is all very well to say such things; it does not mean that those remarks are given substance. If such statements are not followed up, how can such words be trusted? It is all very well to use catch-phrases, but it does not become a responsible government to try to legislate by catch-phrases. It is very disappointing.
My noble friend Lord Dundee went on to say:
I recognise that the amendments of both noble Lords
and he was referring to others—
go a little way toward meeting our concerns and avoiding evasion, but members would still not have a direct say in who leads the union". [Official Report, 28/3/88; col. 497.]
That may be why the Government continue to shy away. However, noble Lords will recall that the intention is to try to make it possible for unions to have and hold on to good management and not to have and hold on to what one might call political leaders with a small "p". Nobody would dispute that the political leaders have to be elected. At least, some
might dispute it, but not in terms of this Bill. Nevertheless, some unions and particularly the smaller ones need to have very good management. I say "particularly the smaller ones" because I believe it is possible for a bigger union to achieve good management in other ways without having to contravene the provisions of this Bill. However, it will be extremely difficult for them to retain their good management, which is the point on which my noble friend Lord Carr laid special emphasis.
§ I hope therefore that the Government will pause at this stage and not feel it absolutely essential for the leadership—the management part of the leadership—to be directly elected by the union's broad constituency. It is wrong to think it appropriate for management to be engaged by that process, and my amendment is phrased with that in mind. As I have said previously, elected people are not always the best administrators; in many cases, they certainly are not. It is more appropriate—administratively, this is the case in every other organisation—that top managers should be engaged by the board of directors or similar body and made subject to a different kind of discipline. Within a company it is the discipline of the shareholder.
§ It is therefore not right to be too rigid about insisting that the top manager cannot be hired in the way suggested by my amendment. Even at this very late hour I hope that my noble friend on the Front Bench will give thought to according at least tacit agreement to either my amendment or that of the noble Lord, Lord Howie of Troon, who is not at the moment present in the Chamber, so that a tidier version of this Bill goes to another place taking into account the points I have made and those other noble Lords may make.
§ This is a last plea. The whole sense of the amendment is to make sure that unions can he properly and decently managed. I hope that my noble friend will be able to find some clever means of including in the Bill something on the lines of my amendment, Amendment No. 2. I beg to move.
§ 4 p.m.
§ Baroness Turner of Camden
My Lords, we support the amendment in the name of the noble Lord, Lord Mottistone, as we do the amendment of the noble Lord, Lord Howie of Troon who, I am sorry to see, is not in his place. As he is not present, I shall hope to move the amendment in his place. I believe it is quite possible for me to do so.
We have repeatedly argued the case for unions to have the right to determine what type of arrangement they prefer for the appointment of their general secretaries or chief executive officers. In some unions the position is an up-front one. The official is responsible for contacts with the media, for negotiations with major employers, for organisation, and so on. In other unions, as the noble Lord, Lord Mottistone, pointed out, the general secretary is the chief administrative officer. In some instances he will be an ex officio member of the principal executive committee; in other cases, he will not.
Both amendments before the House today—that of the noble Lord, Lord Mottistone, and the other in the name of the noble Lord, Lord Howie—make 23 provision for the general secretary who is not a member of the principal executive committee. The amendment of the noble Lord, Lord Mottistone, is directed towards protecting the position of those unions—there are numbers of them, particularly, as he said, in the white collar field—whose chief executive officer is primarily an administrator. I must say that we prefer the argument advanced in the amendment of the noble Lord, Lord Howie, and that is why I shall wish to move it. Its provisions are slightly less restrictive than those of Amendment No. 2.
However, the essential point is that not all unions are the same. They are widely diverse because of the type of employee for whom they cater and because of the different traditions and backgrounds. Many of the skilled craft unions have always elected their officials. As I have argued before, this is largely because a skilled craftsman who is not elected has, in the past, been able to go back to his trade and receive a union-negotiated rate for the job. In white collar employment that is not the situation. Most white collar employees are used to a career situation in which there is a learning curve and where they may expect promotion and advancement as they progress in the job. If they take time out of the job to do a trade union job then fail to get re-elected, they lose out in their former employment and almost certainly are never able to make up the time that they have lost. That is why white collar unions have endeavoured to offer a career structure to their officials and normal contracts of employment to those whom they employ as chief executive officers. If they did not do that, very few talented people would be willing to leave a career in private industry for a trade union career.
As it is, to do so requires a fair amount of commitment. Generally speaking, the salaries offered by unions still do not compare with what high flyers can expect in private industry and, in particular in commerce where nowadays administrative talent can expect to attract high salaries. If, in addition, such people have to stand for election every five years, they are simply not going to be forthcomng. The noble Lord, Lord Mottistone, made that point in his speech.
If we are concerned about good administration—as I am sure all noble Lords are—then we have to try to attract the right people. It is a mistake to believe—as apparently the Government do—that the individual postal ballot is the most democratic way of selecting senior officials. There is a case for saying that the principal executive committee should have the power of appointment and the power to terminate a contract. It has after all a continuous day-to-day responsibility for running the union. It should be aware whether or not its chief executive is doing a good job. If he is not, it has the power to deal with that situation and it is answerable to the membership about it.
As we have said in this House on a number of occasions in the past, very often the people who are best at administration are not very good when it comes to presenting themselves for election and for campaigning and winning those elections. Amendment No. 2 would look after the position of 24 those officials whose main task is administrative. It is possible, in the light of the discussions we had at Report, that that amendment may commend itself to the Government. On our side, we prefer the amendment of the noble Lord, Lord Howie of Troon, to which I now speak. It is far more comprehensive and seeks to cover a wider range of duties. There are unions where the duties may not be solely administrative and may entail representational duties as well as duties as a main negotiator, while remaining under the control of the principal executive committee, responsible to that executive committe, clearly an employee of that executive committee, and holding a normal contract of employment with that executive committee.
I repeat what I said earlier in the debate on this point. These are not contracts for life. They are normal employment contracts which the principal executive committee has the power to terminate in accordance with the provisions of that contract. In other words, we are talking about a normal employment situation that a person doing this kind of job may reasonably expect to have in private industry or commerce. I support Amendments Nos. 2 and 3.
§ Lord Campbell of Alloway
My Lords, we surely start on common ground. As the noble Lord, Lord Mottistone, said, the unions should be well-managed. As the noble Baroness has said, one then has to attract the right type of manager and that involves some continuity of office. As the noble Baroness intends to move Amendment No. 3—although it is possible to speak on both Amendments Nos. 2 and 3—perhaps at this stage in order to save time I may confine my observations to Amendment No. 2.
I am much in sympathy with the spirit and objective of the amendment, to protect the continuity of office for officials—in effect, the kind of Civil Service that provides good management. However, it seems to me that, as drafted, this amendment could be open to abuse. First, a person employed "solely for the purpose of administration" nonetheless in the real world may easily cross that faint, indecipherable line between administration and politics. Secondly, it is true that the fact that his post may on two previous occasions have been filled "by competitive interview following public advertisement" may afford a measure of safeguard if the competitive interview excludes in effect all political considerations. But will it?
I do not pretend that my noble friend's proposed amendment opens a wide avenue for abuse along which some wily coachman could drive his proverbial coach and four. However, the avenue is wide enough to accommodate the odd pony and trap. Furthermore, if the provisions of paragraphs (a) and (b) are reasonably and fairly construed, it is not understood—and I speak subject to correction by my noble friend—why the amendment should be requisite in practice. Subsection (6B) is concerned with the position of the president and the general secretary, or some "nearest equivalent". What is the need to exclude, by the proviso proposed in this amendment, an official, employed solely for the purposes of administration, from the concept of "nearest equivalent" to the president or general 25 secretary? Unless I have misunderstood the drafting of the Bill, for that reason I do not understand the amendment or why it should be appropriate or necessary.
§ Lord Rochester
My Lords, I am delighted to support both Amendments Nos. 2 and 3. They seem to me to be potentially good examples of how the House can best exercise its revising function.
A proposal is made by the Government that is shown by members of the official Opposition—in this case experienced trade union leaders—to have practical drawbacks. What they have to say in Committee evokes sympathy in all parts of the Committee. At the Report stage attempts are made—in this instance by the noble Lord, Lord Mottistone, and myself—to meet their point of view. At Third Reading these two amendments are then moved; their aim is to take account of all that has been said earlier, including reservations expressed by the Government. We thus arrive at a potential consensus which can be incorporated in the Bill.
I suggest that that is precisely what should happen in this case. These amendments pay due regard to all the points that were made in our earlier debates. I am glad that in his amendment the noble Lord, Lord Mottistone, has found it possible to include the last words which are almost the same as those used in an amendment that I tabled at the Report stage. They stress the need for the union officials who are affected to be appointed by means of a democractic process: that is, by members of a principal executive committee who have themselves been elected by secret postal ballot. I very much hope therefore that the Government will give this little story a happy ending by accepting one of these amendments.
§ Lord Carr of Hadley
My Lords, once again I should like to urge the Government most strongly to take action along the lines recommended in the amendment. As I understand the Government's policies in this area since 1979, one aim has been to democratise the trade unions. I most strongly agree with that and support the Government. But another purpose has been to encourage the efficient management and administration of trade unions, which I also strongly support and wish to encourage.
But in my view the Government have these two purposes terribly mixed up and in conflict with each other in Clause 12. It is most important that they should be disentangled to get them marching in step with each other and not in conflict. One may draw an analogy with a company. Members of a company elect the board of directors. I wish that companies elected their boards of directors as well as, under up-to-date law, trade unions are now encouraged to elect their principal executive committee or its equivalent. But members of a company do not elect any executive, administrator or adviser unless he is a director. Many companies wish their most senior executives, advisers and administrators to be directors and therefore to be policy makers. If so they are subject to direction, but if not they are the servants of the board not the direct servants of the members. It would be contrary to the efficient carrying out of policy if an executive had the right of 26 appeal over the head of the board of directors direct to the members of the company. It is a nonsense.
I appreciate that one must not press the analogy between a company and a trade union too far, but in this respect it is quite close. We want to see that the principal executive committee is properly and directly elected by the members at regular intervals. If that elected committee wishes to include senior executives and so forth among its members then it becomes subject to election, but if it does not wish to the law ought not to force it to do so.
Therefore I think that a matter of very important managerial and administrative principle is at stake. Unless the Government change Clause 12 they will have two of their purposes working against each other instead of in consort. Once again I urge them most strongly to think again.
§ Lord Boyd-Carpenter
My Lords, I am a little unhappy with the argument of my noble friend Lord Carr of Hadley based on analogy with public companies. It is true, as he said, that in many cases public companies appoint their chief executives below board level. But it is equally true, in my experience and certainly that of the noble Lord himself, that many companies have an executive chairman who is elected by the company and many more have a managing director who is in a full sense a director and as such is also elected by the shareholders. That surely shows that the argument that insistence upon election must negative the appointment of efficient administrators really does not stand up very well.
As my noble friend and the noble Lord opposite were speaking I reflected with some amusement on the difficulty of a right honourable friend of mine in another place (should the amendment be carried) arguing to another place that elected persons were incapable of administrative skills. That would be a difficult argument to sustain in another place full as it is of elected persons, many of whom are, and others of whom, hope to be, appointed to high administrative office.
I am a little nervous of the amendment. I am not against it in principle. I can understand what my noble friend and my noble friend Lord Mottistone are getting at, but I suspect that it would create something of a loophole in the sound government proposals that the most important people in charge of unions should be elected by their members. One sees in the text of the amendment the words:who is not a member of the Principal Executive Committee, whose post [has been advertised]…on…two [previous] occasions",and who has been appointed by competitive interview. None of those would prevent a union, if it wished, putting in as general secretary an active political figure whom it did not wish to expose to the rigours of election, and indeed whom it suspected might be defeated by a vote of members. It is capable of that as it stands, because in making an appointment by competitive interview it would be perfectly easy to stage a farce—an advertisement could be followed by bringing several people before the executive and then choosing the person one had decided from the beginning one wanted to appoint. It would not defeat human ingenuity to do just that.
27 I wonder why my noble friends are so anxious to take a step which could—I do not say "would"—bypass the sound government proposal of insisting on election of responsible senior officers of a union.
There are unions, as your Lordships know, in which the general secretary is the most conspicuous figure, in which far more than the president, he is the leader of the union. This has been so over the years and will no doubt continue to be so. Although I shall listen to what my noble friend the Minister says, I must confess at this stage to having considerable unease about the amendment and as at present advised I should feel happier if the Bill stood as it is drafted.
§ 4.15 p.m.
§ Lord Carr of Hadley
My Lords, before my noble friend sits down, may I ask him a question? Perhaps I did not make myself clear. He, like myself, has had experience of being the chairman of a large company. Would he really be happy if one of his executives or advisers who was not a member of the board was directly elected by the members of the company and could, as it were, appeal to the popular vote over the heads of the elected board? It might seem a remote possibility, but it could happen. If one is a member of a board or a principal executive one must be, but if one is not one is under the control of the elected board.
§ Lord Boyd-Carpenter
My Lords, perhaps I may be allowed to answer my noble friend's question, if the noble Lord will permit me. The situation, I am sure, is as I have tried to describe it. A company decides whether a high officer shall also have administrative responsibilities, whether as chairman or as managing director, and he will be appointed by a vote of the shareholders. In my experience that has never resulted other than in the appointment of a highly efficient person. As I understand the Bill, where we are not talking of someone in a position covered by the amendment but of a lower administrator, there is no provision for making his election compulsory, so my noble friend's analogy is really no trouble.
§ Lord Houghton of Sowerby
My Lords, I must renew the plea that I made at an earlier stage in the Bill for the Government to reconsider the absurd position that they are hoping the House will approve. Surely the amendment is amply justified by considerations of common sense and for those who understand how unions are being run and administered at the present time. As I said last time the Government seem to have no conception of how the public service trade unions nearest to them are being run.
We have in the public service trade union movement administrative officers, executive officers, heads of department, specialist officers and so forth. The pattern of the organisation of a Civil Service 28 trade union largely resembles the structure of the government service itself, and the conditions of service in many of the public service unions are based on the pattern, the grading and the salaries in the public service.
My own union is about to appoint only the fourth general secretary in 66 years. It is a union which has had the most stable leadership over those years of any national union in the country, based on Civil Service conditions and Civil Service methods of appointment. There is the difficulty of getting people to come out of the Civil Service to occupy higher executive positions or senior executive positions in the unions, for management purposes and not for policy-making. The general treasurer of the Inland Revenue Staff Federation is not a policy-maker. He is someone competent in accountancy and methods of organisation in order to look after the growing and substantial measure of financial responsibility in such a union. He has to keep it clean and well administered. He should not be put there and jockeyed into office by particular sections of the organisation.
I hope that the Government are going to drop this fusspot attitude of intrusion into the affairs of unions, which has no relation whatever to the main purpose of the Bill. I feel angry about this because it means that the Bill will be a punitive measure. Its bias against the trade unions is there from the beginning to end. The Government talk about handing unions back to their members. How will 60,000 members of the Inland Revenue, spread over the whole country in 1,500 offices, feel when they may be asked to vote for the appointment of higher executive officers in the union headquarters? They will ask why they are wasting their or the Government's money on a ballot like this. It downgrades the ballot. Nothing but ballots are going on at present, and there will be more under this Bill.
This time round my union has decided that, while the executive committee will exercise its traditional responsibility for the selection of a new general secretary, it will submit that decision to a ballot of the membership. That is out of deference to the new concept of the appointment of principal officers in trade unions. Is that not enough? Some applicants for positions in the union have already said, "I am not going to be thrown into the political controversies of the union if there are any. I am not going to be asked whether I am of the broad Left, whether I am a Social Democrat, a member of the Labour Party or anything of that kind. I come here to satisfy certain professional or administrative requirements and I am prepared to do that, but do not throw me into the arena. I am in attendance at meetings of the executive committee: I am not a member. I shall give my advice and I may seek to be heard on a matter upon which I think I have an opinion which the executive committee might care to consider".
This is the most intolerable intrusion into the common sense administration of the affairs of trade unions that has surely been anywhere near the statute book. It really is. What other institutions in this land are being subjected to this fusspot stuff? Do companies have it? Do they have to get the sanction of the shareholders even for their managers and 29 sectional managers? Can the Government mention any institution where such an intrustion into its internal affairs is expected either by statute or by the rules of the organisation?
It is monstrous. I am usually a pretty moderate person but I feel indignant about this. In fact the offices of the general secretaries of the Inland Revenue Staff Federation and kindred unions could well be filled by the normal methods. I did not have to go for re-election. For 38½ years I was there by common consent of the members, and my successors have been there for 16 years and 12 years respectively. Another general secretary is about to be appointed on the retirement of the third holder of that office.
Your Lordships may say that that is remarkable and if all the other unions were as good we should not need to have the Bill at all. But why then subject unions, which have a splendid record in this, to such treatment? Why treat them like delinquent children? It is not right and it is not fair; it is not necessary either. What after all is the purpose of the Bill? It is to try to prevent people who may have ulterior political or other motives being in positions of power without the consent or approval of members and remaining there, unable to be removed except by means of extremely difficult constitutional provisions.
However, you do not get down to the head of department in any other organisation and scrutinise to that extent those who may be appointed to such positions. Why then attempt this? In fact you have in the public sector more better organised trade unionists than anywhere else in the country today. The public service organisations are better organised and have a much higher level of voluntary membership. There is not a closed shop, and yet we have in the region of 90 to 93 per cent. voluntary membership. In spite of all that we have this impertinence from the Government in telling them how to run their show.
This Government are not fit to tell people how to run their shows: they cannot run their own. As for representatives, whatever has possessed this Government to claim that they are in a representative capacity when they sit there with the consent of less than 40 per cent. of the electorate? I ask: where is their bloody mandate? Things cannot go on like this. I beseech the Government to think again. Otherwise they are just going to generate inside moderate and reasonable organisations a feeling of deep resentment. Such organisations will demand that something should be done to wipe the slate clean when the opportunity comes.
I shall have something to say when we debate the Motion, That the Bill do now pass. This is a supremely important occasion, but I shall not dwell on it further at this point in relation to this amendment. The Government should apply their minds to this and get rid of this atmosphere of being not in your Lordships' House but in a penal settlement where the inhabitants must be disciplined. They have gone from being despots to being fusspots, and that is not justified by the circumstances.
§ Lord Basnett
My Lords, I rise to support the two amendments briefly and to assure the noble Lord, 30 Lord Campbell of Alloway, that the fears he saw in the passing of the amendments do not in practice exist. If Clause 12 is passed it will not extend democracy in unions but restrict it. It will make unions less efficient, and I hope I can demonstrate that quite adequately. Also, it will reverse the process occurring now in unions which I am sure we all want to support.
On the point of democracy, the noble Lord, Lord Carr, was absolutely right in his comparison with what happens in companies. The noble Lord, Lord Boyd-Carpenter, drew attention to the election of the chairmen and managing directors. Of course presidents and general secretaries of unions are elected. That is what is provided for and what we now accept should happen. However, just like any government, an executive of a union wants its civil servants to be responsible to it, to be selected by it and to carry out its instructions. To elect such people separately would be to give them a will of their own, which frankly interferes with the central democracy of a union, and would be quite wrong.
Second, it would interfere in a very serious manner with the efficiency and effectiveness of a union. As the general secretary of a union, I had with me at executive meetings my finance officer, who was an accountant, and my education officer and research officer, both of whom were graduates. They would answer questions from the executive although in the end the responsibility was mine and the decision always that of the executive. They were selected on the basis of merit as a result of advertisement. I could not have guaranteed—I am certain that it would not have been possible—to obtain the same quality of applicant for those positions if they had had to be filled by election. That is quite clear, too, in several other instances. One would be reducing the efficiency of unions and failing to support what is now happening within unions.
As unions become more professional, they are seeking support from people of merit with expertise in areas where that skill is needed. They seek as employees people responsible to the executive, not people who are elected separately. These amendments are vital to the well-being of the trade unions.
§ 4.30 p.m.
§ Lord Trefgarne
My Lords, I am grateful to my noble friend Lord Mottistone, to the noble Baroness and to all noble Lords who have spoken, for setting out their views clearly in respect of what has been proposed, including the amendment in the name of the noble Lord, Lord Howie of Troon. We have of course gone over the same ground at each stage of the Bill, despite the fact that your Lordships' House took a clear decision early on in our proceedings that unions should not be permitted to continue appointing their general secretaries. Nonetheless, as my noble friend Lord Dundee promised at Report stage, we have looked very carefully at the whole issue to see whether we could meet the concerns expressed in our debates. I am sorry to say that the Government can no more accept either of these amendments than they could the earlier ones of my noble friend Lord Mottistone on the same theme.
31 As your Lordships well know, the Government believe it is right to require all members of union executives and presidents and general secretaries to be elected, thereby ensuring that union leaders are representative of the members. I shall not weary your Lordships by repeating why we believe the election requirement is important.
I should like to explain why we see such difficulties with these amendments. The essence of the amendments is that unions should be allowed to continue appointing their general secretaries, where certain conditions are satisfied, rather than have them elected as the Bill will require. I understand the way in which your Lordships have sought to draw up tight limits to this; but the bottom line is that some members will be denied the right to vote on who should be their general secretary. The alternative of a vote on the method of how an individual obtains that position simply is not sufficient.
As I have indicated on earlier occasions, general secretaries are often the individuals people think of first when hearing a union's name. They can wield more influence than a non-elected post might suggest. Try as I may, I cannot bring myself to believe that such individuals as Alan Sapper of ACTT, Roy Evans of the ISTC, John Lyons of the EMA and Rodney Bickerstaffe of NUPE are simply anonymous backroom boys quietly discharging the administrative duties which keep their executives running and so should be exempt from the need to be elected.
Even if general secretaries managed to confine themselves to giving factual advice, as they would have to do to benefit from the amendment tabled by the noble Lord, Lord Howie of Troon, that does not alter the fact that they have both importance and great influence simply by virtue of their position. I understand, of course, the concern expressed by some noble Lords including my noble friend Lord Mottistone that union officials who simply provide an executive with information and advice should not need to be elected. That was brought home to me very forcefully.
As a result, I introduced an amendment to subsection (6A) (b) to ensure that it is as clear as possible that, generally, such individuals will not need to be elected. But where such an official fulfils the functions of a general secretary, I still hold to the belief that the members should not be denied a direct say in choosing who does the job. The proper election of all PEC members is some safeguard against the danger that they will appoint someone the members do not want, but I have to say that it is simply not sufficient.
The noble Lord, Lord Houghton of Sowerby, described the irrelevance, as he saw it, of the current provisions to the trade union of which he was a longstanding and distinguished official. However, is the noble Lord certain that the small number of general secretaries who served that trade union for such a long period of time were wholly and continuously in tune with all the needs and wishes of their members during their extended period in office? I believe that—
§ Lord Houghton of Sowerby
My Lords, the noble Lord has asked me a question to which the answer is, yes. I have already pointed out that under this Bill and previous legislation, executive committees must be elected according to the conditions of the five-year interval. They must be elected by ballot; that is, by secret ballot and postal ballot. Surely that ensures that an executive council is in charge. In those circumstances, is there any one person who is not elected and who can dominate the whole of the executive committee, representative of the general membership? This is the safeguard.
I am not talking of general secretaries in particular. I am talking of other officials to whom the requirements of election will apply and who are subordinate to a general secretary. The names mentioned by the noble Lord give a clear indication of what is continually being turned over in the mind of the Government. They are individuals known to the Government whose appointment they cannot believe is representative of the membership.
However, I must not intrude further on the noble Lord's speech. The answer to his question is that he ignores the establishment of the elected authority under the Bill. It is a democractically elected body and has the full authority of an executive council. Surely that is a safeguard against maladministration and jockeying for position among general secretaries.
§ Lord Trefgarne
My Lords, I was coming to the end of my remarks and I remain of the view that the general secretary of a trade union, whether or not he is a member of the executive committee, has considerable importance and influence. He is certainly thought to be so not only in the minds of the members but in the minds of the general public who often see such people on television, for example, and hear from them through other sections of the media. I believe that such a person of influence should represent the views and aspirations of the membership. I ask my noble friend to withdraw his amendment.
§ Lord Mottistone
My Lords, I am most disappointed in my noble friend's remarks and in his inability to see a flexible way of introducing the kind of provision about which we have been talking. I shall not take up too much of your Lordships' time but I should like to say a few words to my noble friend Lord Campbell of Alloway. He damned my amendment with faint praise and said that he did not believe it to be necessary. In order not to waste the time of the House I deliberately did not repeat all that I said in Committee and at Report. However, I should like to recommend that my noble friend reads what was said on those occasions by myself and other noble Lords. He would then understand clearly why the amendment is thought to be necessary.
I should like to comment on some of the remarks made by my noble friend Lord Boyd-Carpenter. Far be it from me to intervene between my noble friend as the past chairman of a large public company and my noble friend Lord Carr of Hadley, who was also chairman of a large public company, as regards the relative similarities of trade unions and companies. Of course, they are not exactly the same.
33 My noble friend Lord Boyd-Carpenter implied that it would be easy for people to be slipped in under these amendments. I think he probably did not notice that in both amendments there is, so to speak, a retrospective safeguard that the post of general secretary, on at least the last two occasions, would have had to be filled by competitive interview. If it has not happened in the past, then that situation would not apply in the future.
§ Lord Boyd-Carpenter
My Lords, would my noble friend allow me to intervene as he referred to my argument? What has there been to prevent an unsuitable persons being slipped in on the previous two occasions?
§ Lord Mottistone
My Lords, if my noble friend will bear with me, the type of trade unions that I am especially trying to safeguard do not now have that sort of chief executive. Those trade unions which have a general secretary who, quote, "might be thought to be unsuitable", are not going to change him overnight as a result of this legislation remaining unamended.
It is disappointing and a pity that it is so late in the day. I am of a mind to test the feelings of the House, but shall not do so on my amendment because it is in fact flawed. Therefore I must leave it to the noble Baroness, Lady Turner, to decide on Amendment No. 3. If my amendment was not flawed, I should continue with it because this is the last chance to see what we all think about the matter and to make a decision. It is a terrible pity that the Government are not prepared to budge.
§ Lord Campbell of Alloway
My Lords, as my noble friend was good enough to mention my name, I should like to assure your Lordships' House that the criticisms—they were respectful criticisms—that I made about Amendment No. 2 (not Amendment No. 3) were made in the light of having read in Hansard what had been said earlier. With the greatest respect to my noble friend, I do not think he has answered any one of my criticisms.
§ Lord Mottistone
My Lords, perhaps this is not the right moment to go on. It is quite clear that my noble friend did not understand what he read. Therefore, we had better leave the matter there. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 4.45 p.m.
Baroness Turner of Camden moved Amendment No. 3:
Page 15, line 28, at end insert ("save that this provision shall not apply to the appointment of a general secretary by competitive interview following public advertisement by a trade union which fulfils the following conditions—
post" means a postal service which—
§ The noble Baroness said: My Lords, as I have already indicated, I move Amendment No. 3 instead of the noble Lord, Lord Howie of Troon, who is not in his place. I have already spoken to it to some extent. However, there are one or two points I should like to make in support of Amendment No. 3, because it may deal with some of the points raised in the debate on Amendment No. 2.
First, I deal with the argument that has been advanced on a number of occasions in your Lordships' House that the purpose of the Bill is to ensure that members of unions have the right to choose their general secretary even if the general secretary has a purely administrative function or is not a member of the principal executive committee as set out in Amendment No. 3. I draw your Lordships' attention to sub-paragraph (iv) of the amendment, which makes it clear that,
the members of the trade union have within a period of five years, beginning with the coming into force of this section, approved by a simple majority of those voting in a secret ballot, a resolution approving the practice of appointment of the General Secretary by the principal executive committee".
In other words, the individual members of the union will have had the opportunity under the amendment to say whether they wish to continue with the procedure or have an arrangement under which the principal executive committee has the powers to appoint the chief executive and of course to terminate the contract of employment of that individual.
§ I repeat what has already been said by several noble Lords; in no way is this a less democratic procedure than that proposed by the Government. Indeed, it could be argued that in many senses it is more democratic, because the principal executive committee, which we know has to be elected by postal ballot of individual members at least every five years, has the day-to-day responsibility for the administration and organisation of the union. Therefore, the chief executive officer is not under scrutiny, so to speak, once every five years by the membership but under continuous scrutiny by the elected representatives of the membership through the principal executive committee. That committee has the right, with a contract of employment, to terminate the contract if it feels that the job is not being properly done. That seems to me to be the guarantee that people will not be slipped in or manoeuvred into position if the members do not want them there; because the principal executive committee must answer to the members if that is what it has done.
§ In introducing a procedure whereby there is an election for people whose job is mainly administrative, the Government are politicising that position in a way that it is not politicised at present. People apply for the job on the basis of their administrative skills. Incidentally, in reply to the noble Lord, Lord Boyd-Carpenter, no one on this side of the House is suggesting that if you are elected you do not have administrative skills. The point about our amendment is that we are dealing with people who must have administrative skills and who are appointed on that basis. They are being drawn in many instances possibly from other unions where they have had other experience, perhaps from industry or commerce. If the union is to run an effective administration it is necessary to ensure that such people will be attracted to work for the union and will also be prepared to put the skills they have learnt in commerce or in industry at the disposal of the trade union.
§ They will be less inclined to do that if they are under the impression that their job becomes a kind of political football every five years with caucus organisation, and often media intervention, around the issue of their suitability for the general secretaryship. It may well have nothing to do with the way in which they have administered the work and everything to do with their perceived political connections. That was not the original aim of the Bill and therefore it seems to me that the Government should be prepared to look favourably at Amendment No. 3 because it attempts to deal with some of the concerns and reservations that have been voiced in your Lordships' House.
§ There is a high degree of consensus on all sides of the House that we must ensure that the Bill does not 36 worsen adminstrative practices within unions and that at the end of this legislation we shall have provisions that enable unions to function effectively and in accordance with their traditions and the requirements of their membership. I beg to move.
§ Lord Campbell of Alloway
My Lords, I hope your Lordships will permit a brief intervention in opposition. By virtue of sub-paragraph (i) the amendment elaborates, solely for the purpose of administration, on the previous Amendment No. 2. The reasons I sought to give, which I think I understood, in relation to my objections to Amendment No. 2 still apply with full force to this amendment and there is no object in repeating them. None of them has yet been answered.
§ Lord Howie of Troon
My Lords, I apologise to the House for not being present when Amendment No. 3 was called. The reason is very simple. I had been trapped on the Docklands Light Railway, which is an excellent mode of transport but it left me at West India Quay Station for quite a while.
I am very grateful to my noble friend Lady Turner for moving this amendment in my absence. I only wish that I had been here in time to hear the whole of her speech and not just the last part of it. Noble Lords will be aware that I normally draft my own amendments to Bills and generally they are much shorter than this one. Possibly because of the brevity of my amendments, from time to time in the past I have been able to persuade the Government to agree with me either wholly but more often in part. For that I am extremely grateful.
I confess that this amendment was drafted for me by lawyers of the Society of Telecom Executives which is the trade union of the management side of the Telecom business. I do not wish to speak at any length since my noble friend Lady Turner has done that for me. I merely wish to endorse what she has said and to remind the Government that this is the kind of trade union whose approach to industrial relations is exactly the kind of responsible, sensible approach of which the Government and many noble Lords on this side of the House would approve. It is the kind of approach to trade union relations which ought to be strengthened rather than discouraged. It is the sensible approach of the union which is embodied in this amendment. With those few words I hope that the Government will accept it.
§ Lord Trefgarne
My Lords, as I said a few moments ago in answer to the amendment moved by my noble friend Lord Mottistone—the arguments apply similarly to this amendment—we believe not only that senior trade union officers should be experts in administration and managing the affairs of their union, but that they should also be elected in accordance with the views of the members of their particular union. It is therefore for that reason that I cannot accept this amendment any more than I could accept that of my noble friend a few moments ago.
§ Lord Houghton of Sowerby
My Lords, it appears that there is nothing more to be said. I believe that on this matter we must keep up our opposition.
§ Lord Mottistone
My Lords, noble Lords must not speak after the Minister at the Third Reading of a Bill.
§ Lord Trefgarne
My Lords, I am informed that the noble Lord is out of order to speak again after I have spoken.
§ Lord Howie of Troon
My Lords, surely it is in order for the noble Lord to make a comment before the Minister sits down?
§ Lord Trefgarne
My Lords, perhaps I may read from the Companion to the Standing Orders at page 99 which states that only the mover of an amendment should speak after the Minister at Report and Third Reading stages.
§ Baroness Turner of Camden
My Lords, I do not intend to go over all the arguments that we have heard. Suffice it to say that I strongly disagree with the Minister on this issue. I believe that we have set out the case repeatedly for the amendment that is before your Lordships and it is now my intention to press the matter to a Division.
§ 4.54 p.m.
§ On Question, Whether the said amendment (No. 3) shall be agreed to?
§ Their Lordships divided: Contents, 89; Not-Contents, 105.38
|DIVISION NO. 2|
|Airey of Abingdon, B.||Hardinge of Penshurst, L.|
|Amherst, E.||Harris of Greenwich, L.|
|Ardwick, L.||Hatch of Lusby, L.|
|Attlee, E.||Houghton of Sowerby, L.|
|Aylestone, L.||Howie of Troon, L.|
|Banks, L.||Hughes, L.|
|Basnett, L.||Irvine of Lairg, L.|
|Beloff, L.||Jacques, L.|
|Blackstone, B.||Jay, L.|
|Bonham-Carter, L.||Jeger, B.|
|Boston of Faversham, L.||John Mackie, L.|
|Bottomley, L.||Kilmarnock, L.|
|Briginshaw, L.||Leatherland, L.|
|Bruce of Donington, L.||Listowel, E.|
|Carmichael of Kelvingrove, L.||Llewelyn-Davies of Hastoe, B.|
|Carnegy of Lour, B.||Lloyd of Kilgerran, L.|
|Carr of Hadley, L.||Lockwood, B.|
|Carter, L.||Longford, E.|
|Cledwyn of Penrhos, L.||Lovell-Davis, L.|
|David, B.||McCarthy, L.|
|Davies of Penrhys, L.||McNair, L.|
|Dean of Beswick, L.||Mais, L.|
|Donaldson of Kingsbridge, L.||Marsh, L.|
|Dormand of Easington, L.||Mason of Barnsley, L.|
|Elwyn-Jones, L.||Molloy, L.|
|Ennals, L.||Monson, L.|
|Ewart-Biggs, B.||Morton of Shuna, L.|
|Falkender, B.||Mottistone, L.|
|Falkland, V.||Nicol, B. [Teller.]|
|Foot, L.||Oram, L.|
|Gainford, L.||Peston, L.|
|Gallacher, L.||Pitt of Hampstead, L.|
|Galpern, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Graham of Edmonton, L.|
|Hampton, L.||Prys-Davies, L.|
|Rathcreedan, L.||Taylor of Mansfield, L.|
|Renwick, L.||Thurso, V.|
|Ritchie of Dundee, L.||Turner of Camden, B.|
|Robson of Kiddington, B.||Underhill, L.|
|Rochester, L.||Wallace of Coslany, L.|
|Rugby, L.||Walston, L.|
|Scanlon, L.||Wedderburn of Charlton, L.|
|Soper, L.||White, B.|
|Stallard, L.||Wigoder, L.|
|Taylor of Blackburn, L.||Williams of Elvel, L.|
|Ampthill, L.||Hooper, B.|
|Arran, E.||Hylton-Foster, B.|
|Auckland, L.||Johnston of Rockport, L.|
|Balfour, E.||Joseph, L.|
|Bauer, L.||Kinloss, Ly.|
|Beaverbrook, L.||Kinnaird, L.|
|Belhaven and Stenton, L.||Lauderdale, E.|
|Belstead, L.||Lloyd of Hampstead, L.|
|Bessborough, E.||Long, V. [Teller.]|
|Birdwood, L.||Lurgan, L.|
|Blatch, B.||Mackay of Clashfern, L.|
|Borthwick, L.||Malmesbury, E.|
|Boyd-Carpenter, L.||Margadale, L.|
|Brabazon of Tara, L.||Marley, L.|
|Brookeborough, V.||Marshall of Leeds, L.|
|Brougham and Vaux, L.||Merrivale, L.|
|Bruce-Gardyne, L.||Milverton, L.|
|Buckinghamshire, E.||Monk Bretton, L.|
|Butterworth, L.||Morris, L.|
|Caithness, E.||Mowbray and Stourton, L.|
|Cameron of Lochbroom, L.||Munster, E.|
|Campbell of Alloway, L.||Nelson, E.|
|Carnock, L.||Norrie, L.|
|Cawley, L.||Nugent of Guildford, L.|
|Chapple, L.||Orkney, E.|
|Chelwood, L.||Orr-Ewing, L.|
|Colnbrook, L.||Oxfuird, V.|
|Constantine of Stanmore, L.||Pender, L.|
|Cottesloe, L.||Polwarth, L.|
|Cox, B.||Porritt, L.|
|Cullen of Ashbourne, L.||Rankeillour, L.|
|Davidson, V. [Teller.]||Reay, L.|
|De L'Isle, V.||Renton, L.|
|Deedes, L.||Rodney, L.|
|Denham, L.||St. Davids, V.|
|Eden of Winton, L.||Saltoun of Abernethy, Ly.|
|Elibank, L.||Sanderson of Bowden, L.|
|Ellenborough, L.||Shannon, E.|
|Elliott of Morpeth, L.||Skelmersdale, L.|
|Fanshawe of Richmond, L.||Slim, V.|
|Fortescue, E.||Stockton, E.|
|Fraser of Kilmorack, L.||Sudeley, L.|
|Gisborough, L.||Swansea, L.|
|Glenarthur, L.||Thomas of Gwydir, L.|
|Gridley, L.||Thomas of Swynnerton, L.|
|Hailsham of Saint Marylebone, L.||Thorneycroft, L.|
|Harmar-Nicholls, L.||Trefgarne, L.|
|Havers, L.||Vaux of Harrowden, L.|
|Henley, L.||Ward of Witley, V.|
|Hesketh, L.||Wise, L.|
|Hives, L.||Wolfson, L.|
|Hood, V.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.2 p.m.
Baroness Turner of Camden moved Amendment No. 4:
Page 15, line 48, leave out ("the coming into force of this subsection when") and insert ("22nd October 1987 and").
§ The noble Baroness said: My Lords, I should like to speak at the same time to Amendments Nos. 5 and 6 as they are connected. At Report stage the Government introduced an amendment designed to make it easier for unions to amalgamate. The 39 intention of the Government's amendment, which we welcomed at the time, was to allow members of the principal executive committee who had already been elected in accordance with the terms of the 1984 Act to stay in office for the remainder of their term instead of having to stand for election within a year of the merger.
The amendment put down by the Government and approved at Report stage certainly covers the situation of unions like the GMBATU and APEX, which are currently considering merger. From my contacts with those two unions, I understand that they are satisfied with the wording of the Government's amendment and with the Bill as it now stands as regards future mergers. However, your Lordships will perhaps recall that at Report stage my noble friend Lord McCarthy asked when the provisions of the clause would come into force. He said:
After all, most trade unions felt that they were free to amalgamate without involving themselves in the provisions of this Bill. The Government produce this Bill and it does not state that it starts from a certain date but simply: 'after the coming into force of this subsection'. That means to say that those one or two unions which may have amalgamated just before or just after the publication of the Bill will not be able to avail themselves of this clause. I am not asking for retrospective legislation, but would it not be fairer to time the coming into effect of this paragraph a little earlier than after the coming into force of the subsection".—[Official Report, 28/3/88; col. 502.]
The noble Lord, Lord Trefgarne, said that he would seek advice on that point. He said in reply to my noble friend:
I am not aware that there is anything sinister intended in the words to which the noble Lord has referred. If he has any specific cases in mind, I shall certainly have them looked at".
§ It so happens that there is a specific case in mind. I must make my position clear. My union, the Manufacturing, Science and Finance Union, is the product of a merger between ASTMS and TASS which took effect from January of this year after a ballot of both memberships conducted in accordance with the Trade Union (Amalgamations, etc.) Act 1965. The object of my amendment is simply to cover the position on the principal executive committee which is elected in accordance with the provisions of the 1984 legislation. The same considerations would apply if my amendment were accepted as will apply in future to the members of the principal executive committee of the GMBATU and APEX and indeed of other unions which may merge in the future.
§ The object is the same in this case as in the case of future mergers. If there are to be informed and meaningful elections for the principal executive committee it is necessary for some time to be allowed for members of the former unions to get to know each other so that they may more effectively elect an executive for the combined union. If my wording were accepted it would not cover the position of appointed senior officers—joint general secretaries—since these officials were not elected in accordance with the 1964 legislation. They would have to stand for election under the terms already provided for in the Bill.
§ We are concerned here simply with the position of lay elected members. By allowing this union the same concessions as will apply in the case of other merging 40 unions, it does not seem to me that the Government will be acting in anything other than an even-handed way. If the objective is to have properly informed elections—I take it that it is—surely union members should be given time to find out more about their elected lay principal executive members so that they may make an informed choice when electing the first combined principal executive committee of the new union. I beg to move.
§ Lord Trefgarne
My Lords, I am again grateful to the noble Baroness for setting out her views so clearly and for writing to my noble friend Lord Dundee to give a little advance notice of her amendment.
I was pleased to see from her letter that APEX and the GMBATU are, in her words, very happy and satisfied with the amendment which the Government introduced at Report stage. As your Lordships will recall, subsection (2) of Clause 12 was introduced in direct response to the concern of the noble Lord, Lord Basnett, that the existing law was an obstacle to a merger of the GMBATU and APEX due to take place in January 1989.
The subsection gets over the problems that the noble Lord foresaw by providing that a PEC member who becomes a PEC member of a new or other union as a result of a merger will be able to hold office without the need for re-election for as long as he would have held office if there had been no merger. Despite the difficulties referred to by the noble Baroness, they did not stop the several unions which have merged since the 1984 Act came into force from doing so. Therefore there is clearly no need for the subsection to apply to mergers which take place before it comes into force. This will be in good time for the GMBATU/APEX merger.
The exemption will apply where the individual's election to the PEC of his original union took place before the coming into force of the subsection. However, I am afraid I cannot accept the noble Baroness's attempted justification of why the exemption should be available in cases where the merger has taken place before the coming into force of Clause 12(2). I have already said that such mergers were not inhibited by the law as it then stood. In addition I feel that this would be rather an unusual way of organising things. The existing exemption from the normal election requirements contained in Part I of the 1984 Act was available only in cases where a merger took place after the commencement of Part I, and I see no reason to depart from that principle.
One should also bear in mind that where a merger has already taken place the terms of that merger were put to the members and the members of the old union voted for or against it on the understanding that members of their PEC would have to stand for election after a year. Your Lordships may agree that it would be wrong therefore to make a retrospective change now to such understandings. I hope that the noble Baroness will agree that a change such as she seeks would be somewhat irregular and undesirable. For that reason I hope that she will not press the three amendments.
§ Baroness Turner of Camden
My Lords, your Lordships will not be surprised to learn that I am 41 rather disappointed by the Minister's response, because we are not asking for much. We merely suggest that the operative date should be the Bill's publication date, which I think was 22nd October 1987. We of course raised the points when the issue was before your Lordships on Report. I then said that we had had little time in which to study the amendments; we were not certain what they would encompass; and my first reading of them led me to believe that the clause would cover mergers which had taken place since the Bill's publication. It was only on closer examination that it seemed to the Opposition that it would not do so. We therefore took the matter away, and as the Minister said, I then wrote to the noble Earl, Lord Dundee, and sent him a copy of the amendment that I proposed.
Moreover, it is not unusual, as I understand it, to have retrospective legislation, although this is not really retrospective because it does not go back before the publication of the Bill. As I understand it, there have been a number of examples in which the Government themselves, especially in the area of social security, have supported legislation which is, in effect, retrospective, or have supported transitional arrangements of one kind or another.
I shall not press the matter at this point because there are other issues of some weight which your Lordships will want to consider in more detail. I think that this is a reasonable suggestion. It would have made it easier for members of an important union to get to know members of the union with which it has just merged. They would then be able to vote with some knowledge of the people for whom they were voting. Otherwise, they will not have the opportunity to do that. I regret the fact that the Government have not seen the virtue of those arguments. With those comments, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 5 and 6 not moved.]
§ Clause 17 [Ballots on industrial action affecting different places of work]:
Lord Wedderburn of Charlton moved Amendment No. 7:
Page 22, line 25, leave out ("some or all") and insert ("one or more").
§ The noble Lord said: My Lords, the amendment, and some others tabled in the names of myself and my noble friends, concerns Clause 17. Your Lordships will recall that Clause 17, added in another place on Report, requires separate ballots in different workplaces in relation to industrial action. That point has been much discussed, not only here but in another place. Although we have discussed the issue a great deal, some of us are not entirely clear what it means. We do not like the clause. We have cudgelled our brains to try to suggest a way of making it make sense in the way that the Government appear to interpret it. Amendment No. 7 is the first of four amendments in that direction. In a phrase, it is designed to make it clear, as the Government appear to intend from previous debates, that an aggregate ballot on industrial action can take place where members voting have a common factor, which is the 42 Government's way of describing elements of a bargaining unit, and that common factor covers employees who are in the different employment of different employers.
§ The purpose of our amendment is to allow an aggregate ballot in the multi-employer bargaining unit more clearly than the clause now does. I understand, although I can hardly believe it, that the Government may look kindly on some of these amendments. I apprehend that it is desired that I move Amendment No. 7 first and separately. I do that by saying that as the clause stands it requires that a member has, in common with some or all other members of the union, the common factor. We thought that that provision was imprecise. It is not clear what "some or all" means. "One or more", which is what we propose, we believe to be more exact and understandable. I beg to move.
§ Lord Trefgarne
My Lords, I am grateful to the noble Lord for proposing this helpful clarification. I am happy to accept the amendment.
§ On Question, amendment agreed to.
§ 5.15 p.m.
Lord Wedderburn of Charlton moved Amendment No. 8:
Page 22, line 26, leave out ("and have the same employer as that member").
§ The noble Lord said: My Lords, I believe that it is desirable to speak also to Amendment No. 10. Amendment No. 8 is perhaps a little more substantial, but it is moved for the same reason. I suppose that the matter may be summarised in this way: the Government's position has been, at any rate for some time, that they wish to allow an aggregate ballot across the multi-employer bargaining unit. They believed that their clause could be interpreted in that way as it stood. We did not believe that that interpretation was better. We did the same as before and took the matter away to see whether we could find a way of meeting the Government's point as simply as possible which would make it clear.
§ Amendment No. 8 makes a substantial amendment to paragraph (b)(ii) on page 22. It makes a change which we hope meets the common desire; that is to say, the clause as it stands demands that the common factor of the bargaining unit must be shared by a member of the union with someone else employed at the same employment unit by the same employer. We believe that that could give rise to anomalies at the very least. It would be much more sensible to say that there can be an aggregate ballot where there are different places of work, where workers share the common factor or a common factor (not necessarily the same throughout) in the multi-employer bargaining unit, without the requirement that any particular member should need to share that factor; that is to say, his occupational description or his terms and conditions of employment under the collective agreement with an employee at his own place of work.
§ We believe that this amendment may also meet with some favour. I make it clear that we still do not like the hoops. I have a suspicion that the phrase used by my noble friend Lord McCarthy when he 43 described the clause and the exception as the "gibberish clause" may still attach. We hope that the amendment will make the provision clearer and possibly more workable for those who have to operate this difficult clause. I beg to move.
§ Lord Trefgarne
My Lords, I am yet again grateful to the noble Lord for his helpful clarification. I am happy to accept the amendment.
§ On Question, amendment agreed to.
Lord Trefgarne moved Amendment No. 9:
Page 22, line 29, leave out ("that employer") and insert ("the same employer as that member").
§ The noble Lord said: My Lords, I shall speak also to Amendment No. 10. Amendment No. 10, tabled in the name of noble Lords opposite, is of attraction to the Government, but we prefer the words in government Amendment No. 9. I hope, therefore, that the noble Lord will accept that Amendment No. 9 meets the spirit of Amendment No. 10. If your Lordships agree to Amendment No. 9, the noble Lord may feel that he need not move Amendment No. 10. I beg to move.
§ Lord Wedderburn of Charlton
My Lords, although I believe that Amendment No. 10 is better than Amendment No. 9, I should not dream of moving it in view of the extraordinary circumstances of having secured two concessions from the Government on Amendments Nos. 7 and 8.
§ On Question, amendment agreed to.
§ [Amendment No. 10 not moved.]
Lord Wedderburn of Charlton moved Amendment No. 11:
Page 22, line 30, leave out ("neither") and insert ("not").
§ The noble Lord said: My Lords, this amendment is almost consequential but I suspect not quite consequential enough for the Minister to approve of it. Nevertheless I move it in order to secure an explanation. We have now clarified the fact as far as we can, within this rather unusual structure of the clause, that a multi-employer bargaining unit is possible and that what we are concerned with is seeking the common factor among the employees in the bargaining unit. That is, are they of the same occupational description? Do they have similar terms and conditions of employment under a collective agreement?
§ Then we come in Clause 17(1B)(b)(iii) to a cut-off point. We quite understand that the Government's logic demands a cut-off point in sub-paragraph (iii). If I can put it in this way, attempting merely to be descriptive, this is the sub-paragraph which says that you must not select among the employees with that common factor in a particular employment. The provision says that there must not be a factor that that member has in common with any of the other individuals when he is not allowed to vote. But it then goes on, we think, to repeat itself, that there must not also be a factor that individuals employed by that employer have in common as a consequence of having the same place of work. It seems to us that the 44 repetition of the cut-off by reference to "same place of work" only makes the paragraph difficult to understand for those who are going to have to operate it in industry.
§ If there is no common factor, some can be given a vote and others not. If there is a common factor, there will be a common factor and you must not have selective balloting. But the mere fact that people have the same place of work when all the other requirements of the exemption paragraph have been satisfied seems to us to be rather a strange, possibly repetitive and in any case rather undesirable element which will cause great confusion in attempts to apply it on the ground in industry. I am speaking also to Amendment No. 12 because that goes with it. I move Amendment No. 11.
§ Lord Trefgarne
My Lords, I rise to reply on Amendment No. 11 and to speak at the same time to Amendment No. 12, as did the noble Lord. These amendments would defeat the basic intention of the clause, which is to prevent unions from aggregating ballot results at selected workplaces. The clause allows a union to hold a single aggregated ballot of members at different workplaces where each member in the balloting constituency has a factor in common with some or all of the other members in the constituency.
If the amendment were accepted, a union could combine the votes at two or more workplaces solely on the ground that the members at each of those workplaces had in common the fact that they worked at the same place. The amendment is therefore inconsistent with the objectives of the clause and I hope that it will be not be pressed. We talked about this issue at earlier stages of the Bill, particularly in the context of regional bargaining, but that was not an issue which the noble Lord raised on this occasion. I shall therefore not trouble your Lordships with it further now.
§ Lord Wedderburn of Charlton
My Lords, I do not agree with that argument, but I think it would be wrong for me to press the amendment or even to speak to it further on Third Reading.
However, I must place on record that when we see Hansard I believe we shall find that the noble Lord said that the Government were trying to avoid the union using workers having the same place of work as a common factor to link them in one bargaining unit when they had different workplaces. I suspect that if this is so we shall see the illogicality of the final three lines of the sub-paragraph. However, I think it is too late. We have done a little; we have clarified the previous paragraphs and perhaps that is as far as we could expect to go. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 12 not moved.]
§ Clause 25 [Functions of the Secretary of State and of the Commission]:
Lord McCarthy moved Amendment No. 13:
Page 30, line 20, at end insert—
("( ) Nothing in this section shall affect the duties of the Commission under Section 1(5) of the Employment and Training Act 1973.").
§ The noble Lord said: My Lords, in the light of the balmy breeze that blows from the other side of the House, I feel that I must press on with this amendment in case it changes direction.
§ This is also a very minimal amendment upon which we hope that the Government will look kindly. It goes back to my attempt in Committee to obtain certain reassurances from the Government on the continuance of several important functions of the Manpower Services Commission now that it is to be transformed, renamed and many of its functions transferred to the Secretary of State. In the Official Report of 14th March (at col. 934), I asked what was to become of the MSC's powers of independent investigation and research. This amendment is the best way I could find of raising the issue at this point, because it asks us to look at the statute from which the MSC gets that authority. It is in fact the Employment and Training Act 1973 and in particular that part of the Act where this authority is established; that is Section 1(5).
We are asking the Government to agree to embody in this Bill that:
Nothing in this section shall affect the duties of the Commission under Section 1(5) of the Employment and Training Act 1973".
If we ask what exactly is stipulated in Section 1(5) of that Act, it merely consists of references to Schedule 1 of the Act. But when we refer to Schedule 1 we see what we are talking about. It spells out a whole series of things for which the MSC is responsible and how the MSC is to carry out its business.
However, the crucial paragraph with which I am concerned is paragaph 15, which says:
It shall be the duty of the Commission to make to the Secretary of State, as soon as possible after the end of each accounting year, a report on the performance of its functions".
Of course that report would be laid before both Houses. I have here the annual report of the MSC for 1986–87. It says that the Manpower Services Commission has in the past placed not only before this House and another place but the public generally and the press much of its activities and much useful information about the operation of the various aspects of the training services—for example, the number of placings in employment; the number of workers on rehabilitation courses; the number of staff on the enterprise allowance scheme; the degree of success of YTS from year to year; the degree of success of adult training programmes of various kinds; and, more controversially, the degree of impact of the job restart programme and so on.
§ As I tried to say when we debated this issue before, one could never have said of the Manpower Services Commission that it sought in any way to get across the Government in carrying out the responsibilities which it was given under the legislation. However, it always maintained an independence in monitoring the consequences and effects of those policies. The commission did this most notably in the annual report, but it also did it in the publication of its labour market quarterly reports and so on.
§ I am asking for a reassurance from the Government that this independent monitoring exercise will continue to be carried out under the new situation. I should like to know whether it will be carried out by the new training commission which 46 will not be responsible for all the services in precisely the same way, or will it be carried out by the Department of Employment itself? If so, how can we be certain of the independence and authority of that monitoring organisation? In particular, can the Government demonstrate their desire to maintain the independence of this monitoring service by agreeing to the amendment and putting it in the Bill? I beg to move.
§ Lord Rochester
My Lords, I was not quite sure and perhaps I should have endeavoured to find out precisely what lay behind this amendment; but now that I have heard that its chief objective is to ensure that the new training commission, like the Manpower Services Commission before it, to read again from the relevant section of Schedule 1 of the Employment and Training Act 1973, should:make to the Secretary of State, as soon as possible after the end of each accounting year, a report on the performance of its functions during that year; and the Secretary of State shall lay before each House of Parliament a copy of each report made to him in pursuance of this paragraph",I should like to support the idea. I am not sure whether the amendment as worded can quite achieve that purpose because the Employment and Training Act refers to the Manpower Services Commission whereas after the passing of this Bill we shall have a training commission. What the noble Lord, Lord McCarthy, really wants, I believe, is an assurance from the Government that the kind of thing which in this respect has applied under the Employment and Training Act 1973 to the Manpower Services Commission should apply to the new training commission. I support the noble Lord, Lord McCarthy, in asking the noble Lord for such an assurance.
§ 5.30 p.m.
§ Lord Renton
My Lords, if all that the noble Lord, Lord McCarthy, is asking for is an assurance, I feel fairly confident that he will get it. On the matter of whether he gets an assurance that this amendment will be made to the Bill I should not wish to encourage him. Quite frankly, it is unnecessary. When we are legislating to leave the text of previous legislation unimpaired we assume that it will continue to have force.
§ Lord Campbell of Alloway
My Lords, I rise only to say, without being too technical, that what is proposed is obviously unnecessary.
§ Lord Trefgarne
My Lords, the purpose of the amendment is apparently to make sure that the duties set out in Schedule 1 to the Employment and Training Act 1973 to which Section 1(5) of that Act refers will continue to apply to the commission after this Bill comes into force. I should like to reassure the noble Lord straightaway that the duties set out in Schedule 1 will still apply in future. There is no conflict between Schedule 1 of the 1973 Act and new Section 3 of the Act as substituted by Clause 25 of the Bill. New Section 3 is not an exhaustive recital of the commission's powers and duties. The purpose of new Section 3 is simply to say what the commission's job is and it does not affect the provisions of Schedule 1. The power to appoint advisers, for example— 47 allowing it to appoint independent researchers—is reproduced in paragraph 10(b) of Schedule 1 to the 1973 Act inserted by Schedule 2 to this Bill.
Therefore, as two at least of my noble friends have already said, this amendment is unnecessary. I hope that the noble Lord will not press it; I hope also that he will be reassured by what I have said.
§ Lord McCarthy
My Lords, when three separate noble Lords say that this amendment is unnecessary I suppose that it is better than one noble Lord saying it three times. There have been many instances of one noble Lord saying it three times. I am mildly reassured; but I still do not see why this provision cannot go into the Bill. Nevertheless I do not propose to press the matter to a Division. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 34 [Short title, commencement and extent]:
Lord Trefgarne moved Amendment No. 14:
Page 34, line 28, leave out ("Part I of this Act") and insert ("Sections 1 to 17 and 19 to 23 above").
§ The noble Lord said: My Lords, this amendment modifies the provisions for commencement set out in Clause 34 of the Bill. It means that Clause 18 will come into effect on Royal Assent rather than, as currently provided, on a day appointed by the Secretary of State by order. Clause 18 has no substantive effect in itself. It enables the Secretary of State to issue and bring into force codes of practice for certain purposes after following the statutory requirements on consultation and parliamentary approval contained in Section 3 of the Employment Act 1980. Like the provisions of Part II of the Bill which are also to be brought into effect on Royal Assent, it is an enabling provision.
§ The amendment in no way modifies the need for the Secretary of State to satisfy the present statutory requirements of Section 3 of the 1980 Act in respect of consultation and parliamentary approval before the issue of any code under the clause.
§ The Engineering Employers' Federation whose view was endorsed by the Institute of Personnel Management has urged that a code on trade union industrial action balloting should be available as soon as possible after the enactment of the Bill. The amendment avoids unnecessary delay in undertaking the required process of consultation with ACAS and in the publication of a draft code so that representations can be made. I hope that your Lordships will recognise this amendment as both positive and practical. I beg to move.
§ Lord McCarthy
My Lords, if one sits here long enough it comes to be one's responsibility to say that something is unnecessary. I really cannot understand why the Government want this amendment at all. As they always get suspicious when I propose amendments that they regard as unnecessary, I am afraid that I must reciprocate.
The plain fact is that there is nothing on earth to prevent the Government, if this Bill received Royal Assent, let us say on 15th May without this 48 amendment embodied in it, from bringing this particular part of the Bill into effect on 17th May. There need be no delay.
All that the Government are doing is preserving their position so that they can bring different parts of the Bill into effect when they want to bring them into effect. Therefore, if the Government wished to bring Clause 18 into effect two days after the whole of the Bill had received Royal Assent they could do so. So why do we have to have this amendment?
Moreover, I am bound to ask why we need to have the amendment at this late stage. On the face of the Bill in another place and on the face of the Bill here in Committee and on Report, no one suggested on the Government's part that we had to have some special provision for Clause 18. Now we are told that we have to do it instantaneously. I can only feel that the Government must have some particular form of code of practice already in mind. I ask if that is the case.
The noble Lord reinforced that feeling when he mentioned the Engineering Employers' Federation which had been involved in some activity to pressurise the Government into producing a code of practice. The Government were saying they were concerned to respond to such pressure. Well, the noble Lord knows as well as I do what some of the contents of the would-be code of practice of the Engineering Employers' Federation are. The EEF, as is entirely its right, has produced a draft code of practice and has given it the widest possible circulation. Some items in the EEF code are perfectly sensible. But there are others to which we would take great exception.
In the EEF code of practice it is suggested, for example, that trade unions when issuing a strike ballot should be under a legal obligation to put the employers' case. Anyone who knows anything about trade union administration knows that quite apart from the injustice of that—no one is insisting that the employer puts the trade union case, and quite rightly so—it is totally impractical. Unions would be the last people in the world to formulate the employer's case and put it in a ballot. That is a job for the employer. In the past few years British employers have rightly revolutionised their procedures for communicating with their own workers. That is their business; it is not the business of the trade unions. It is certainly not the state's business to say in a code of practice that that is what the union should do.
So we are very concerned about this provision. We are very suspicious. We do not understand why it has to be there at all. We ask the Government how it gives them any advantage in terms of time. If the Government are in such a hurry, surely they can give us some idea of what this code of practice, which must be already very well written and waiting somewhere in the Department of Employment, contains.
§ Lord Campbell of Alloway
My Lords, there is a problem here which transcends this Bill. It concerns the propriety of giving power to the Government to introduce a code of practice, so to speak, without your Lordships knowing what is proposed. Since the only effect of the amendment appears to be to achieve 49 just that, I will be very relieved if my noble friend can give some explanation.
§ Lord Rochester
My Lords, I see the matter rather differently from the way in which the noble Lords, Lord McCarthy and Lord Campbell of Alloway, see it. I should like to give the amendment a cautious welcome at this stage in the hope that in the end it will go at least some way towards meeting what I had in mind at Report stage. Your Lordships will recall that at that time I moved an amendment which provided that Section 17 should not come into force before the expiry of three months after the Secretary of State had published guidance for employers, employees and their representatives explaining how the provisions of the clause should operate. By those best qualified to judge, three months was considered to be the minimum period for guidance to be assimilated by those who will have to operate the clause if it is to have any chance of proving workable.
The Government rejected my amendment. At that stage, all they were willing to concede was that when the Bill was enacted they would explain the requirements of the clause along with those of the rest of the Bill, and that the code of practice on pre-strike ballots which they intended to publish under Clause 18 would necessarily refer to the provisions of Clause 17.
Since that time, I have come to appreciate that under Section 3 of the 1980 Act, publication of a code of practice on pre-strike ballots can take place only after a lengthy consultative process. I think that the noble Lord, Lord Trefgarne, did not spell that matter out. Before preparing and publishing a draft code, the Secretary of State must first consult ACAS, then consider representations on the draft code and finally ensure that it is approved by both Houses of Parliament.
I suggest that that takes care of the point which troubles the noble Lord, Lord Campbell. However, that process would clearly take many months to complete. Even with the help of the amendment, it might not be completed by the time the Government chose to bring all but Clause 18 of Part I of the Bill into force by order. I should therefore like to ask the Minister when he comes to reply to give me at least an assurance that the Government will treat the difficulties that employers and trade unions will have in understanding and operating Clause 17 as a highly relevant factor in determining the date on which the bulk of Part I of the Bill—that is, all but the section which the Government now intend to treat separately—will commence. I suggest that that is not much to ask. Such a statement would not appear on the face of the Bill. However, it might bring a bit of comfort to organisations such as the Engineering Employers' Federation and the Institute of Personnel Management, whose members are very unhappy about the inclusion of Clause 17 in the Bill.
Perhaps I may make one more comment in response to the misgivings of the noble Lord, Lord McCarthy. I suggest that if the consultative process is carried through as it should be by the Government, the representations of trade unions, along with those of bodies such as the Engineering Employers' Federation and the IPM, should be taken into 50 account. I view the matter with some reservations at this stage. However, I see it as a promising development, if the Government will give me the assurance I seek and if, in undertaking the consultative exercise, they are prepared to take account of what employers and unions have to say.
§ 5.45 p.m.
§ Lord Renton
My Lords, although my noble friend's amendment seems to be wrapped up—perhaps that is the right expression—in a certain amount of complexity, the purpose seems to be quite simple. We can best understand it by referring to Clause 18 which makes two textual amendments in the existing law—the 1980 Act—with regard to the issue of codes of practice. Although all the other clauses in Part I could perhaps well await commencement orders to be made by the Secretary of State, there seems to be no reason why the two textual amendments in Clause 18 should not come into operation with Royal Assent. That is all that the amendment would do. Therefore, I should have thought that it was a simple matter which could well be supported.
Perhaps I may add that the codes of practice or any amendment of existing codes of practice would be made under the 1980 Act and not directly as a result of a clause in this Bill.
§ Lord McCarthy
My Lords, before the noble Lord sits down, is he denying that the Government could bring the Bill in by Royal Assent on 17th May with a commencement order on 18th May for Clause 18? If so, why do we need the amendment?
§ Lord Renton
Yes, my Lords. The Government could do that. However, they decided not to do so for various reasons.
§ Lord Trefgarne
My Lords, the noble Lord, Lord McCarthy, is technically correct in saying that Clause 18 could be brought into effect very swiftly after Royal Assent. However, I suggest that it is simpler and more convenient to bring the clause into effect on Royal Assent, rather than making a separate commencement order for one clause.
As for the content of the code, the Government are committed at this stage only to covering in the code matters which I referred to in speaking to Amendment No. 1. As my noble friend Lord Renton has said, the only effect of the present amendment is to enable the process of consultation and parliamentary approval to start as early as possible.
Some reference has been made to the timescale for the issue of codes. Required statutory consultation cannot be undertaken before Clause 18 is brought into operation. The amendment can only help to expedite that process. However, there is no detailed timetable to which the Secretary of State is working. As for the period which will be allowed for consultation, no decisions have been made about that. Clearly sufficient time must be allowed for interested bodies and individuals to make representations.
Perhaps I may remind your Lordships, so far as concerns previous codes of practice, that, for 51 example, the code of practice on picketing and the closed shop, issued as a result of' the 1980 Act, required a consultation period of three months after ACAS was initially approached. When the code of practice on the closed shop was revised following the 1982 Act, a period of almost two months was allowed for consultation. I am not sure that I have provided the assurance which the noble Lord, Lord Rochester, sought. If not, I shall be happy to try to help him further.
§ Lord McCarthy
My Lords, before the noble Lord sits down, I understood him to say that the code of practice will only cover those items referred to in Amendment No. 1.
§ Lord McCarthy
My Lords, will the code of practice cover, say, ballots for elections, ballots for strikes and political ballots, or will it be more limited than that?
§ Lord Trefgarne
My Lords, the Government have not yet reached a final view on the full range of matters which the code of practice will cover. As I said, the only matter which they have so far thought it right to include in the code of practice is the matter relating to ballots prior to industrial action.
§ Lord Rochester
My Lords, I think that the noble Lord, Lord Trefgarne, gave me the opportunity to ask him a question before he sat down. As I understood what he had to say, he did not quite give me the assurance that I was seeking. Perhaps I may put the matter to him again. I asked that the Government should treat the very real difficulties that employers and trade unions will face in operating Clause 17 as a highly relevant factor in determining the date on which Part I of the Bill—including in particular Clause 17—will commence.
§ On Question, amendment agreed to.
§ Schedule 3 [Minor and consequential amendments]:
Lord Trefgarne moved Amendment No. 15:
Page 44, line 42, leave out ("each voting paper must contain the following statement") and insert ("the following statement must (without being qualified or commented upon by anything else on the voting paper) appear on every voting paper").
§ The noble Lord said: My Lords, during your Lordships' consideration of this Bill on report my noble friend Lord Mottistone tabled an amendment—No. 57—relating to his concern that unions might seek to nullify the effect of words which are required to appear on the voting paper in an industrial action ballot by making certain statements on the voting paper itself.
§ He quoted a particular example of that sort of practice which had occurred in the context of the Transport and General Workers' Union ballot of 52 members employed by Ford. He pointed out that a statement on the reverse of the voting paper could well have misled members into believing that breaking their contracts of employment during a strike was a matter of no significance.
§ I promised my noble friend to consider the problem, and the amendment is designed to remove it. The amendment will add a new condition which must be satisfied if an industrial action ballot is to satisfy the requirements of Section 11 of the 1984 Act and thereby preserve a union's immunity and protect it against application to the court by a member under Clause 1 of the Bill.
By virtue of amendments already agreed to by your Lordships, voting papers for industrial action ballots will in future have to contain the statement:
if you take part in strike or other industrial action, you may be in breach of your contract of employment".
§ The amendment provides that this statement must not be qualified or commented upon by anything else on the voting paper.
§ It may be helpful if I give your Lordships some examples of the kind of comment or qualification that would not be allowed. A comment on the voting paper such as, "We are obliged to include this statement but you should not allow it to influence you because all strikes involve breaches of contracts of employment", or a qualification such as, "This statement has no bearing upon the industrial action you are being asked to take because it will not be in breach of your contract of employment", will not be compatible with the terms of Section 11(3) as they will stand with the amendment, if your Lordships agree to it.
§ I hope that my noble friend will agree that the amendment will avoid the kind of problem which his Report stage amendment was designed to overcome, and that it will commend itself to your Lordships. I beg to move.
§ Lord Wedderburn of Charlton
My Lords, my noble friends and I were very surprised to see the amendment on the Marshalled List for this Third Reading. In our view there are three areas which make this a most serious matter. The first and perhaps the most formal—and I was a little surprised that the Minister did not refer to this matter—is that although this matter was mentioned by the noble Lord, Lord Mottistone, on 28th March (and I have re-read what he said), that was the only occasion upon which any indication at all was given that this would require attention by the Government. The matter was raised by us in a slightly different though very similar form on 14th March in an amendment the effect of which was to require that neither the section in discussion nor:any code issued by the Secretary of State, shall restrict the right of a union to insert words lawfully explaining any matter or giving lawful advice to its members".I said:We are fearful—I make no bones about it—that the Secretary of State may use his new powers to issue a code to restrict the right of trade unions to advise their members on and with the ballot paper".—[Official Report. 14/3/88; col. 1015.]The noble Earl, Lord Dundee, in reply (at col. 1016) began by saying: 53I think that I can give the noble Lord an assurance that the Government have no such plans to issue a code to require the unions to proceed as he outlined".That was about the code. However, then at col. 1017, the noble Earl, speaking for the Government and, I assume, for all his colleagues, said:There is nothing in that subsection, or indeed elsewhere in Section 11, which prevents the union from including any other statement on the voting paper provided that the nature of any such statement does not in itself amount to a breach of particular requirements. Unions have a perfect right to communicate lawful information by lawful means to their members. Neither the present law nor the provisions in the Bill will limit that right in any way. In the light of that assurance, I hope that the noble Lord will be able to withdraw his amendment".We did withdraw that amendment. I apprehend that having the support of the Government for its thrust, as we plainly had, had we pressed it the amendment might well have been carried by this House. Therefore the matter would not have been open to the Government had we not withdrawn on the basis of assurances given on that occasion.
I therefore find it quite remarkable that without any prior notice—last Friday in fact—this new incursion into trade union freedom (because, let us be quite clear, that is what it is) has now been suggested to your Lordships' House on the basis of the evidence of a single case. It is the only case which has ever been put forward. I shall come to that in a moment.
The second area that surprises us is that the Government, presumably knowing where they are going, have now made it clear that they are setting off on a further step down their step-by-step authoritarian road. As my noble friend Lord McCarthy made clear in the last debate, in a strike situation the employer will put his case. Indeed, employers have developed their ability to do so. The trade union will put its case. It still remains by law—the Government's law—the trade union's ballot paper.
The trade union already has to put in mandatory questions. Those have been changed by government decision. The union now has to put a statement dictated by the Government on its ballot paper. However, I should have thought that the Minister would have told us what "on the voting paper" means: does it include the back? If it does not include the back the example of the Transport and General Workers Union is irrelevant because the statement was on the back. Does it include any other paper affixed to the ballot paper? What kind of legislation is this?
Of course this is only the first move. The code and the 1990 Bill will tread further down that road. The Government ought to come clean and say, "We issue the ballot paper for distribution, perhaps compulsorily, by the union and it is our ballot paper—because it is now the Government's ballot paper.
The noble Lord has shown us how far this is going to go. He gave some further examples. I hope that I have the words right but he spoke quickly and I could not be sure that I wrote them down correctly. One of them was a comment about being obliged by law to include a statement on the ballot paper. That I suppose is a comment upon it. As I understand it, the second one was something to the effect that: "This 54 statement has no bearing upon the present industrial dispute because you will not be in breach of contract of employment". Therefore, in a case where workers are taking industrial action by withdrawing voluntary overtime—a case where there is no breach of contract of employment—the union will not be allowed to tell its members on, or possibly on the back of, the ballot paper that that is the case. It will have to make a statement which is untrue, the one dictated by the Government: "This may lead to a breach of your contract of employment".
What kind of industrial law is that? In this tiny amendment clarified by the Minister is a sequence of steps which illustrates the way in which basic freedoms of organisation are infringed by this legislation. It moves step by step toward a more and more authoritarian structure.
Let us take the illustration which the noble Lord, Lord Mottistone, put before the House when this Bill was discussed on Report. I appreciate that in Hansard, at col. 582, the noble Lord said that the CBI had available cases of other misleading words, as he called them. We have come to find this a difficult matter. It will be remembered that at earlier stages of our debate on this Bill the Minister had a reservoir of information which we never quite came to tap. The CBI reservoir may be full or low, but this House is being asked to decide at Third Reading on a new principle on this matter from one example.
The Minister cannot say no to that—well, he does, and since he has said no I shall explain why I think he should not do so. He cannot say no because he did not give the House any other example of what happened in fact; he only gave examples that he had drawn out of his brief. If they were from leaflets from unions, let him say so.
Let us consider a third point—the example that was given of the back of the ballot paper of the Transport and General Workers' Union. As the noble Lord, Lord Mottistone, said on Report, it is stated thereon:As required by recent Government legislation the ballot paper refers to strike or industrial action being in breach of your contract of employment. This has no special significance as all strikes involve a breach of your contract of your employment".The noble Lord said that that statement was misleading. I aver that no jury would convict that statement as being misleading, in the first place because it is true that strikes are breaches of contracts of employment and, secondly, because plainly in context—and obviously it is not merely a statement of law or of fact—it is a statement of opinion. I do not know what dispute it concerned and perhaps the noble Lord, Lord Mottistone, will tell us. I know of' course that it was the Ford dispute, but at what stage and at what point of that dispute did this happen? Why did it happen at that point on the union side, since all strikes are breaches of contract of employment? Presumably the union is saying that things have become so bad that it sees no special significance in that in the dispute that is before us.
If the union did not say that, then the noble Lord appears to be saying that the union should never call its members out on strike at all—and I am sure that he is not saying that. So to what is this one example leading us? It leads us to a situation in which the 55 Government decide what a union document should say; and that feature—that duplicity—is the mark of an authoritarian regime.
§ Lord Wedderburn of Charlton
My Lords, the noble Lord again says no. I shall have to tell him why it is so. He might consider for a moment whether he would not feel more comfortable were he to say, "All right, we shall have ballots and these will be the ballot papers and we say that this is what you do". After all, surely that is the real situation. The noble Lord is trying to bring the union ballot paper under government control.
This amendment takes the first step of a number of steps which in the Government's reasoning are quite logical, judging by past Bills and debates. We regard it as an extremely serious matter. It has been put forward on no evidence of any worth whatever, at a moment when, at the last gasp and without any proper parliamentary debate at all, a slender example can give the Government the ability to move into and grasp yet another area of trade union autonomy. We oppose this amendment very vigorously and we shall oppose what it leads to.
§ 6 p.m.
§ Lord Harmar-Nicholls
My Lord, this amendment is the best example that I have seen to justify having amendments on the Third Reading of a Bill. That is a procedure which is allowed in this House but not in the other place.
We are reaching the end of our discussions on the Bill and, as I see it, this is an example of a moment when we see a possible loophole which may undermine the purpose behind the Bill. With his amendment my noble friend is closing the loophole before anyone has had a chance to make use of it to the possible detriment of the good that will come from the Bill. I believe that to be the best justification that we have had for a long time to amend a Bill on its Third Reading.
§ Lord Campbell of Alloway
My Lords, I fail to follow either the reasoning or the rectitude of the legal presentation of the noble Lord. Lord Wedderburn. Unless he is being highly over-technical, which I am sure he is not, it seems to me that he is saying with one breath that all strikes involve breach of a contract of employment, having with a previous breath said that withdrawal of voluntary overtime is not in breach of a contract of employment.
What is the poor member of the trade union to do—an operative or fitter, perhaps? Does he have to have imputed to him knowledge of the legal distinction between a strike and the meaning in law of a voluntary withdrawal of overtime? Of course, the noble Lord teaches industrial law. Does one not have to come to grips with the realities of the situation and get away from some of these legal niceties?
If your Lordships will allow me to say so, the noble Lord was speaking so quickly that at one stage I could not understand what he was saying. I 56 understood him to be saying that there was some fear—some awful fear—about a code of practice. I accept that his sentiments of apprehension are totally reasonable from his point of view, but without knowing the substance of those fears it is very difficult to answer them. I cannot believe that this amendment does anything other than turn a voting paper into a true voting paper in accordance with fair play and the true intendment of this section.
§ Lord Wedderburn of Charlton
My Lords, before the noble Lord sits down, perhaps I may say that I am sorry not to have explained the matter to him. I know that he has been most attentive to all the debates on the Bill in your Lordships' House. Does he recall the discussion of these amendments on 14th March when the Government gave the assurance that they would introduce no such provision?
§ Lord Campbell of Alloway
My Lords, I do not think that it is in order for me to reply, so I shall not do so.
§ Lord Mottistone
My Lords, I am deeply grateful to my noble friend for having responded on this point, as he said he would at Report stage, with an amendment rather different from the one that I tabled. As a result I did not recognise it for what it clearly is. I am also grateful to the noble Lord, Lord Wedderburn, for speaking at such length because I have now been able to sort out exactly what the whole thing is about. I have also been able to understand that clearly this is a much more important amendment than I imagined, because the noble Lord, Lord Wedderburn, dislikes it so much. I have looked again at my comments at Report stage and it seems to me that this is a question of whether or not it is possible to mislead if the amendment of the Government is not included. I deduce from what I said before that that is the case.
I cannot help the House on the issue of whether we can produce some of the additional cases that the CBI has told me that it possesses. I did not have time to open all my letters before we went into bat on this Bill There may be a letter—I do not want to keep your Lordships waiting while I go to find it—which contains those very examples which the noble Lord, Lord Wedderburn, says he should like to see.
However, I shall undertake to read what the CBI has to say and show its comments to my noble friend the Minister, because he will need them. Whether they should go to the noble Lord, Lord Wedderburn, will rather depend on what they look like. I thank my noble friend very much for this amendment and for having responded to what is clearly a case of trying to remedy a mischief.
§ Lord McCarthy
My Lords, before the noble Lord sits down, perhaps he can tell us what it is in the words of the Transport and General Workers' Union on the back of the ballot paper that he thinks is misleading. We think it is just a statement of fact.
§ Lord Mottistone
My Lords, I am very sorry, but I could not hear what the noble Lord was saying. Perhaps he can repeat it.
§ Lord McCarthy
My Lords, can the noble Lord tell us precisely what he thinks is misleading on the hack of the Transport and General Workers' Union's ballot paper to which he referred at Report stage? We think it is simply a statement of fact.
§ Lord Mottistone
My Lords, I do not wish to waste the time of the House. If the noble Lord will read on, I explained why the statement is objectionable. I draw his attention to col. 582 of Hansard of 28th March. It is absolutely clear.
§ Lord Boyd-Carpenter
My Lords, I should like to ask the Minister to answer two questions when he replies. In regard to the first, I think I know the answer; in regard to the second, I do not.
First, is the prohibition from putting anything else on the voting paper sufficient to cover the risk of someone putting something contradictory to the general assertion on the back? Does "on the voting paper" include on the back of the voting paper? Secondly, would the proposal contained in the amendment be adequate to prevent a union which desired to play it that way from attaching separately, but with a paper clip, to each voting paper a statement contradicting the statement on the voting paper? In other words, is an attachment to the voting paper also excluded by this amendment? Subject to that, I am all in favour of the amendment.
§ Lord Trefgarne
My Lords, perhaps I may first reply to the noble Lord, Lord Wedderburn. Parliament has agreed that there should be a statement on the ballot paper in the terms that I read out when I was moving this amendment. If noble Lords will allow me, I shall repeat the words:If you take part in a strike or other industrial action, you may be in breach of your contract of employment".I repeat the words: "you may be in breach of your contract of employment".
Since Parliament agreed to that, the Government apprehend—and this was supported by my noble friend Lord Mottistone and others—that it may be possible to subvert the intention of that statement on the ballot paper by the addition of further statements of the kind I read out just now. The Government believe that by permitting such further statements we would be undermining the provision that Parliament has agreed upon as the words that should appear upon the ballot paper. For that reason we were persuaded, not least by the arguments advanced by my noble friend, that such additional statements should not be permitted. It is for that purpose that I bring forward this amendment.
Frankly, it seems to me that the noble Lord was seeking a provision whereby trade unions could indeed mislead their members by adding misleading statements on the ballot paper. I do not think that on reflection even he would wish to suggest that that was the right way to proceed.
In answer to the poi its raised by my noble friend Lord Boyd-Carpenter, I believe I am right in saying that a statement on the back, or attached in the way that the noble Lord suggested, would constitute an action that was prohibited by the amendment that I 58 am now bringing forward, as I believe it should be. I hope that will satisfy my noble friend.
§ Lord Boyd-Carpenter
My Lords, If my noble friend will allow me, the words used on the amendment are "on the voting paper". I apprehend that that would cover the back. However, does "on" in a statute cover an attached document?
§ Lord Trefgarne
My Lords, in the few seconds that I have had to take advice on this matter, I am advised that it does. Perhaps I can take further, more considered, advice and write to my noble friend.
§ Lord Wedderburn of Charlton
My Lords, if the Minister will allow me to intervene, this is a most important matter. The noble Lord, Lord Boyd-Carpenter, raises the issue from a different viewpoint from mine. The noble Lord has referred to a statement that would be permissible. Such reference adds the right flavour—that of freedom of expression. Is not Parliament entitled to know very clearly the Government's intention in relation to this matter? There is plainly a doubt about what "on the voting paper" means. I would choose the interpretation of the noble Lord, Lord Boyd-Carpenter. I should want the provision restricted to "on the face of the voting paper". Are the Government considering bringing in a definition of "on the voting paper" in another place so that the provision can be properly defined?
§ Lord Harmar-Nicholls
My Lords, perhaps I may ask my noble friend this question before he replies. If something is attached to the voting paper which is nothing whatever to do with it, it ceases to become a voting paper. If one has a voting paper in the booth in the normal way, one does not have a propaganda sheet connected with it. A voting paper with an attachment to it which alters its character is not a voting paper within the meaning that the Bill intends.
§ Lord Rochester
My Lords, that may be what the noble Lord, Lord Harmar-Nicholls, thinks, but I suggest that it is not what this amendment states. The amendment refers to the voting paper. The question that the noble Lord, Lord Boyd-Carpenter, has raised very properly is whether this provision extends to the back of the voting paper or to an attachment to the voting paper. The noble Lord, Lord Trefgarne, suggests that it does. I am quite clear that the amendment says nothing of the kind. The amendment is therefore flawed and this House has no business to pass it.
§ Lord Hughes
My Lords, perhaps I may ask the Minister to take the matter a little further. If a document enclosed with the voting paper is neither on it nor attached to it, can he stretch the words "on the voting paper" to include such an unattached enclosure; or, to take the question further, if the union has plenty of money and puts the document in a separate envelope but posts it at the same time as the ballot paper, where does that leave the Government?
§ Lord Trefgarne
My Lords, I am quite certain that in the latter case described by the noble Lord there would be no question of the union falling foul of this amendment. Nor is it the intention to prevent the union expressing its views to the member. We are trying to prevent the union misleading the member at the point at which he expresses his view on the voting paper. That is the purpose of this amendment. I believe that is a right and proper purpose. I believe this amendment achieves it. I commend the amendment.
§ 6.16 p.m.
§ On Question, Whether the said Amendment (No. 15) shall be agreed to?
§ Their Lordships divided: Contents, 114; Not-Contents, 71.60
|DIVISION NO. 3|
|Allerton, L.||Hooper, B.|
|Arran, E.||Hylton-Foster, B.|
|Auckland, L.||Johnston of Rockport, L.|
|Balfour, E.||Kaberry of Adel, L.|
|Bauer, L.||Kenilworth, L.|
|Beaverbrook, L.||Killearn, L.|
|Belhaven and Stenton, L.||Lauderdale, E.|
|Belstead, L.||Lindsey of Abingdon, E.|
|Blatch, B.||Long, V.|
|Blyth, L.||Lucas of Chilworth, L.|
|Borthwick, L.||Lurgan, L.|
|Boyd-Carpenter, L.||Mackay of Clashfern, L.|
|Brabazon of Tara, L.||Macleod of Borve, B.|
|Brookeborough, V.||Malmesbury, E.|
|Brougham and Vaux, L.||Margadale, L.|
|Broxbourne, L.||Marley, L.|
|Bruce-Gardyne, L.||Marshall of Leeds, L.|
|Caithness, E.||Merrivale, L.|
|Cameron of Lochbroom, L.||Mersey, V.|
|Campbell of Alloway, L.||Milverton, L.|
|Carnegy of Lour, B.||Monk Bretton, L.|
|Carnock, L.||Moran, L.|
|Carr of Hadley, L.||Mottistone, L.|
|Cathcart, E.||Mowbray and Stourton, L.|
|Cawley, L.||Munster, E.|
|Coleraine, L.||Nelson, E.|
|Colnbrook, L.||Orkney, E.|
|Colwyn, L.||Orr-Ewing, L.|
|Constantine of Stanmore, L.||Oxfuird, V.|
|Cork and Orrery, E.||Pender, L.|
|Cottesloe, L.||Polwarth, L.|
|Craigavon, V.||Rankeillour, L.|
|Craigmyle, L.||Reay, L.|
|Davidson, V. [Teller.]||Rees, L.|
|Denham, L. [Teller.]||Renton, L.|
|Derwent, L.||Rippon of Hexham, L.|
|Dundee, E.||Rodney, L.|
|Elibank, L.||St. Aldwyn, E.|
|Elliott of Morpeth, L.||St. Davids, V.|
|Faithfull, B.||Saltoun of Abernethy, Ly.|
|Feversham, L.||Sanderson of Bowden, L.|
|Fortescue, E.||Selkirk, E.|
|Glenarthur, L.||Shannon, E.|
|Gray of Contin, L.||Skelmersdale, L.|
|Gridley, L.||Stockton, E.|
|Hailsham of Saint Marylebone, L.||Strange, B.|
|Halsbury, E.||Sudeley, L.|
|Hardinge of Penshurst, L.||Swansea, L.|
|Harmar-Nicholls, L.||Swinton, E.|
|Havers, L.||Thomas of Gwydir, L.|
|Henley, L.||Thurlow, L.|
|Hesketh, L.||Trafford, L.|
|Hives, L.||Trefgarne, L.|
|Holderness, L.||Tryon, L.|
|Vaux of Harrowden, L.||Wise, L.|
|Vinson, L.||Wynford, L.|
|Ward of Witley, V.|
|Amherst, E.||Jeger, B.|
|Ardwick, L.||John Mackie, L.|
|Attlee, E.||Listowel, E.|
|Aylestone, L.||Lockwood, B.|
|Barnett, L.||Lovell-Davis, L.|
|Basnett, L.||McCarthy, L.|
|Blackstone, B.||McGregor of Durris, L.|
|Bonham-Carter, L.||McIntosh of Haringey, L.|
|Boston of Faversham, L.||McNair, L.|
|Bottomley, L.||Mason of Barnsley, L.|
|Brooks of Tremorfa, L.||Milner of Leeds, L.|
|Carmichael of Kelvingrove, L.||Morton of Shuna, L.|
|Carter, L. [Teller.]||Nicol, B.|
|Cledwyn of Penrhos, L.||Oram, L.|
|David, B.||Pitt of Hampstead, L.|
|Davies of Penrhys, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Dormand of Easington, L.|
|Elwyn-Jones, L.||Prys-Davies, L.|
|Ennals, L.||Ritchie of Dundee, L.|
|Ewart-Biggs, B.||Rochester, L.|
|Falkender, B.||Scanlon, L.|
|Foot, L.||Sefton of Garston, L.|
|Gallacher, L.||Serota, B.|
|Galpern, L.||Stallard, L.|
|Graham of Edmonton, L.||Stedman, B.|
|Grey, E.||Stewart of Fulham, L.|
|Hampton, L.||Taylor of Mansfield, L.|
|Harris of Greenwich, L.||Thurso, V.|
|Hatch of Lusby, L.||Tordoff, L.|
|Houghton of Sowerby, L.||Turner of Camden, B.|
|Howie of Troon, L.||Underhill, L.|
|Hughes, L.||Wallace of Coslany, L.|
|Hutchinson of Lullington, L.||Wedderburn of Charlton, L.|
|Irvine of Lairg, L.||White, B.|
|Jacques, L.||Wigoder, L.|
|Jay, L.||Williams of Elvel, L.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 6.24 p.m.
§ Lord Trefgarne
My Lords, I beg to move that the Bill do now pass.
Your Lordships have given close and detailed consideration to this Bill. The attention it has had at all stages of its passage reflects not only the importance of its subjects—industrial relations and trade union law, and arrangements for employment and training—to our economy and society, but also the expertise and experience that many of your Lordships are able to bring to discussion of these topics.
My noble friend Lord Dundee said during the Second Reading of the Bill that your Lordships' House could make significant improvements to the detail of the Bill. His expectation has been amply justified. Your Lordships have inserted a new clause and other new provisions, as well as making a large number of more detailed amendments. The result has made this a better piece of legislation.
It is right for us, at this stage, to reflect on the principles underlying the Bill. Despite the many amendments made in this House your Lordships have approved those principles. The Bill will help our country to develop the kind of trade unions and trade unionism needed both now and for the years ahead. It brings about change in the relevant law by building on and adjusting existing statutes. The rights of individual trade union members will be enhanced, 61 and they will be able, where necessary, to enforce the statutory rights which this Bill gives them.
Those rights are not given to members at the expense of the authority of democratic and responsible trade unions. Such unions which are willing to accord their members the rights they are entitled to expect from unions in a free society have nothing to fear from the Bill. On the other hand, any union which seeks to deny members those rights, or to impose its diktats on unwilling members in a way which could damage their interests, will find that such behaviour now risks the penalties which follow from unlawful action.
The Bill as it will leave your Lordships' House is in step with current industrial relations and trade union members' needs. It is free from any taint of slavish dedication to ideology, and many of its most significant provisions merely extend the good practices of some unions so that members in general can benefit from them.
Part II of the Bill is concerned with training. Creating a proper framework for training is of course every bit as important for our economy as getting our industrial relations right. Some unions—such as the electricians—have recognised this and are actively promoting forward-looking training schemes.
This Bill renames the Manpower Services Commission the Training Commission, to reflect its new focus on training. It gives employers a greater say in the direction of training through the creation of six extra seats.
Legislation alone cannot of itself create the sort of training systems we need to compete in European and world markets. But what this Bill seeks to do is give training a higher place on the agenda of British employers. By training I mean not simply training for the unemployed and training for school-leavers, important though both of these aspects are. I also mean the training and retraining of a company's workforce so that it can keep pace with the market and with technological change.
If I had to suggest a key word to describe this Bill it would be "reform". If I were allowed four words, I might describe it as "reform for the future". If your Lordships believe, as I do, that the Bill can help our society meet and respond to the challenges it faces and will face in the future, I urge you to speed it on its way.
I end by thanking every noble Lord and both noble Baronesses who have contributed to the passage of the Bill and to the discussion on it. They have made constructive suggestions, some of which I was able to accept but some of which we were not. I believe the Bill now deserves a firm place on the statute book. I commend it to the House.
§ Moved, That the Bill do now pass.—(Lord Trefgarne.)
§ 6.30 p.m.
§ Lord Wedderburn of Charlton
My Lords, I can join with the noble Lord the Minister over one matter; that is, in thanking noble Lords who have spoken on the Bill, in thanking my noble friends and indeed, on their behalf, in thanking the noble Lord the Minister himself as well as the noble Earl, Lord Dundee. I 62 thank the noble Lord, Lord Trefgarne, especially for steering us through the many amendments brought forward by the Government, not least those technical amendments which we had to look at with such care. I must tell him frankly, however, that he marches forward bearing a banner with the very strange device he put upon it in his speech: "Trade unions have nothing to fear from this Bill."
The Bill has been changed a great deal in your Lordships' House. The "3rd March amendments" now so important to the Bill restructured the entire part concerned with industrial action and strike ballots in Clause 1 and brought about a very new situation which no doubt will be looked upon in another place. So too, we hope, will amendments of no less importance brought before your Lordships today.
However, even if there are strike ballots, the Bill's principles, which the noble Lord has put before us again, do not, it seems, result in persons having to abide by the results of the ballot if they are in the group favoured by the Government. Of course the Government never favour the majority in a trade union. Not really. They favour the majority in a trade union so long as it produces the results that the Government want. If not, as under Clause 3, the minority can walk away from their contractual agreements and break their agreements under the union rules without any fear of discipline by reason of the contract they have voluntarily taken on. So much for sanctity of contracts and so much for the principle that this is not an anti-trade union Bill.
It is an anti-trade union Bill because it uses the individual not to protect individuals in reality but to use the notion and the machinery of the individual when he is a dissident against majority union action. There has been no evidence produced of the alleged oppression or unfair discipline over any wide area in trade unions. There has been no evidence about postal ballots being more democratic than workplace ballots. Indeed the evidence, if one actually reads it, is very often the other way.
The Government choose the mechanisms. In all sincerity, I have to say to your Lordships that when reading the debates on a trade union Bill of this sort—one of the new "combination laws", as someone said to me the other day—you do not find the same standards applied to evidence and proof as you would find on some other matters relating perhaps to the City or to an administrative matter. The accusations are made in a wide form. Indeed, your Lordships will find that in the very same week that the Sun newspaper was forced to pay £100,000 to officials of the Transport and General Workers Union in respect of accusations of ballot-rigging in a workplace ballot, the same innuendos were being advanced under the privilege of this House. I do not regard that as very satisfactory.
There was a time when the balance was struck a little differently. It did not last long. However, there was a time under this Government when that happened. I should like to quote a statement which gives the flavour of it. It comes from the debates which led up to the legislation of 1980. I remember them well. The noble Lord, Lord Prior, then Secretary of State, introducing the measure, said in 63 the other place at col. 59 on 17th December 1979 that,the rights of the individual as an individual need to be balanced by the right of individuals to act together".He went on to explain why he said that by quoting from his earlier speech on the Address. He said:The law should always give full recognition to the inherent weakness of the individual worker vis-a-vis his employer, to the need for him to be organised in a union".I quote that, not because I agree with many of the proposals the then Secretary of State went on to make, but because at least there was common ground. That common ground is not there today. We have only to look at the way in which the Government have utilised their notion of the individual to see how that is so. Take the quite extraordinary institution of the state Commissioner for the Rights of Trade Union Members. The state commissioner's only job, under the Government's legislation, is to produce massive financial aid to encourage and support individual members to bring legal proceedings against a union or its officials. And it appears to be any union. But when that same individual—and he or she is the same person—is injured at work by the acts of a manager or is dismissed by the employing company, there is no great state machine then to help him or her in the courts. There is not even legal aid in respect of the industrial tribunals.
If the individual's rights are infringed in connection with his pension fund or building society, or if he loses his savings in a company crash in a Guinness-style affair, then the great commissioner in the sky is blind and deaf to his travail. It is only when the union is the defender that all is changed and this centralised state machine descends like some godlike creature bearing gifts to give help to the individual. And to do what? To attack the trade union.
That structure is absolutely clear. The trade union is not a favoured institution of government policy. If it were, why have the Government destroyed tripartism in Part II of the Bill? Why, at this particular point in the history of the need to develop training, have they smashed the tripartite structures in the MSC and the industrial training boards?
Gradually, step by step, the balance which I acknowledge was there—although I did not always agree with the conclusions—has disappeared. To drive trade unionists out of the machinery which is needed so urgently to cope with the crisis of training by smashing tripartism is surely an act of folly and doctrinaire irresponsibility. It makes sense on the basis of understanding the Government's policy, though not to our friends and competitors in Europe. If you look at Germany, Switzerland or Italy—I have recently looked at a number of matters in Italy—you will find an industrial culture at least as conflictual as ours, if not more so. But you will not find this policy there. You will find an attempt to maintain the social consensus, with all its conflict, going forward by agreement.
What a contrast there has been in Britain since 1982. What do we find now in Britain? Some say that we find a Bill cast upon us by reason of the miners' strike. It is a favourite analysis when considering some parts of the Bill. I prefer to think that it makes 64 more sense on the basis of longer-term government policies. But even those who expected some equivalent of the Act of 1927 could not have predicted the unseemly contortions in respect of particular amendments that gradually narrowed the ground and hemmed in particular persons as presidents and general secretaries of particular unions.
On the hybridity of the Bill, we have had our say. But it is important that I put on record the fact that we do not retract one word of our Motion on hybridity. We say that developments were improper, that they represented improper use of a public Bill.
Quite apart from that, the Bill surely shows clearly, whenever other associations are mentioned, how it picks upon the trade union for no normal reason and on the basis of no normal evidence that we would understand. Indeed, the noble Lord, Lord Carr of Hadley, referred to an analogy at one point, and I appreciate that he wanted to make it only within the context in which he was speaking. When the noble Lord referred to the analogy between the trade union and the company I heard noble Lords on the Front Bench wince.
They do not like such analogies because if one takes analogies with other institutions one tends to ask questions such as: is there any evidence or reasoned argument to suggest that members should be freed from disciplinary rules only in a trade union when in every other association they are enforceable against members? Similarly, there is no evidence of a need to require a union to disclose the accounting records of any branch over a six-year period when shareholders and members of other associations have no such right. Or neither is there evidence of a need to insist that a trade union, and a trade union alone, must elect by postal ballot all those who attend at its national executive committee even though they do not have votes. Nor—and I find this to be the most offensive requirement because no reason has ever been given for it, notwithstanding everything that happened in the miners' strike—is there any evidence of a need to ban a trade union alone from indemnifying officials for past offences innocently committed in their duties in the discretion of the union as the general law allows and as companies do every day with their executives and other agents.
No real argument was ever put forward for that provision. It is a nasty piece of vindictiveness. It is a requirement which will harass the union just as will the requirement that a trade union alone among all institutions must have a scrutineer from a state-approved list. On that matter the Government may well discover that the International Labour Organisation's freedom of association committee has reached the limit of its somewhat strained patience.
When we look at the Bill and its structure we find that it is one in the list which began in 1980–82, since when the Government have gradually stepped along an authoritarian road. At the last gasp they have the effrontery to bring before this House a new limitation upon what it is permissible to say and to state and apparently to do so without much hesitation of any kind. The policies are to remove the union—although not entirely, of course—as an effective institution in the collective organisation of the labour market.
65 If the Government thought about that proposition for one moment I suspect that they would not disagree. They do not like collective organisation of the labour market. It must be a market which the state organises and that is why people should not be surprised by all the new laws which appear to advance what some people call the "nanny state". The nanny state is part of the Government's programme. It sets the market, which then works. That is what they believe. Trade unions have no part in it except as friendly societies or useful co-operators at one point or another. Certainly they have no part as equals, as we now see from the wretched history of the Manpower Services Commission structure.
It is that that we fight. It is more than a particular set of provisions and clauses. It is an attitude and belief in a society which should organise itself with more compassion and dignity and with a more adequate range of freedom for workers who will always be weak in front of their employer, as the Secretary of State said in 1979. It is for that reason that we regard this Bill as a very bad piece of legislation.
§ 6.45 p.m.
§ Lord Rochester
My Lords, we on these Benches are not much happier with the Bill as it leaves the House than we were when it arrived. The pattern normally followed before the introduction of new legislation to industrial relations is that a consultative paper is first published; account is then taken of the views of interested parties and thereafter the Bill is brought forward. In this case a Green Paper was produced but the Government have taken little or no notice of the responses made to them by employers and trade unions. I suggest that Clause 3 affords a good example.
In Committee and on Report amendments were moved by myself and other noble Lords. They sought to negate the Government's proposal that individual union members should not be disciplined by their union if they refused to take part in industrial action which had been endorsed by a prior secret ballot. That was because, above all, we do not wish to see the balloting process undermined. In the debates which took place the amendments were supported by former trade union leaders of great experience and by other distinguished Members on both sides of the House, who, in my view, had the better of the argument. However, the Government were impervious to their views.
As regards Clause 17, which deals with ballots on industrial action affecting different places of work, the Government's proposals were not even mentioned in last year's Green Paper. When revealed in the Bill they were opposed by employers and unions alike. In Committee I was unsuccessful in seeking to remove the clause from the Bill. I tried to do so partly because, in my view, it is highly undesirable that the House should pass legislation couched in language so obscure that it may be incomprehensible to those affected by it. In the light of amendments that have been passed today the clause is perhaps a little more intellgible. However, I believe that it may still qualify as being what the first Lord Montgomery called a "pig's breakfast".
66 The clause also fails to take account of the practical difficulties that employers and trade unions will have in trying to operate it. However, we must be grateful for small mercies. In response to representations made by myself and other noble Lords, I am pleased to note that in their amendment to Clause 34 the Government have now recognised that the process of consultation concerning the code of practice on pre-strike ballots which they have agreed to publish must begin as soon as possible. Therefore there will be time, if the Government will allow it, for the complex nature of Clause 17 to be made a little more comprehensible before it must be operated.
We have supported, and were in advance of the Government in advocating, the need for trade unions to use secret postal ballots under independent supervision in electing members of their principal executive committees. However, in our view the Government have not responded adequately to what we said in respect of one matter. It is that independently-supervised postal ballots will prove to be very costly for trade unions. We believe that the Government are being parsimonious and short-sighted in refusing to allow public funds to be used to help to finance the cost of employing independent scrutineers.
We also regret that, in the case of Clause 12, the Government have proved unwilling to reach the kind of consensus sought by a number of noble Lords on both sides of the House. We sought to find a way in which union general secretaries, or people holding equivalent positions, could be at least partially shielded from the full rigours of the Bill's requirements for their election.
Like the rest of society, trade unions must operate within the law. However, in our view there should be a minimum of law in industrial relations. Where the law applies it should strike a balance between the interests of employers and those of employees and their representatives. Having supported much of the Government's earlier step-by-step approach to legislation in this field, we believe that in a number of ways the Bill has gone a step too far.
However, let my last words be of thanks for the courteous way in which the noble Lord, Lord Trefgarne, supported by the noble Earl, Lord Dundee, has taken the Bill through its various stages in this House. I also compliment the noble Baroness, Lady Turner of Camden, and her noble friends Lord McCarthy and Lord Wedderburn, on their co-operation in ensuring that our discussions have been conducted, perhaps spiritedly but always with good humour.
§ Lord Houghton of Sowerby
My Lords, I promise that my few reflections upon the situation will be more temperate than my earlier speech. I recall every trade union Act since 1906 and I have been actively connected with all trade union legislation since the general strike. I was there when it happened. I reaped the harvest of the misunderstandings which arose at that time regarding the role of the public service organisations. It was the public service organisations that received punishment under the Trade Disputes and Trade Unions Act 1927. We were banished from the TUC and from all political affiliations—even those of us who had none to begin with. Restrictions 67 were placed upon membership of the unions which lasted many years and right throughout the war.
Almost every trade union law passed since the beginning of this century has been in a cause-effect situation. The Taff Vale judgment at the beginning of the century had to be remedied by the 1906 Act on the liability of unions to be summoned for damages for industrial disputes and strikes called in breach of contract. In 1913, political objectives had to be dealt with in trade union legislation to overcome the confusion created by the Osborne judgment. The 1927 Act was the direct consequence of the general strike of 1926 and, as I have already said, it lasted throughout the war.
The only Royal Commission on the trade unions and the trade union movement was that appointed by the Labour Government; namely, the Donovan Commission. That was not a happy outcome for an attempt to achieve a better perspective on trade union activity and its role in modern society. However, what we have seen in this Bill, and its predecessors, has been the direct consequence of the failure of the Conservative Government of 1970 to produce trade union legislation which was both acceptable and, even more important, workable.
I see the noble Lord, Lord Carr, in his place opposite. He and I were closely concerned with the parliamentary tragedy that we had to go through on that Bill when it was guillotined. Every night when the guillotine fell the mood on the Opposition Benches was bitter that we had to go through the night with one Division after another. We had to meet to decide whether the number of Divisions that night would be 20 or 24. It turned the events of Parliament at the time of the conflict between the Liberal Government and your Lordships' House in 1909,1910 and 1911 into a more exhausting period of parliamentary opposition than we had ever had before.
Where does this Bill take us? We have had a step by step approach, and although the Minister did not say so in so many words I think that we are entitled to assume that this is the final piece of legislation on trade union law of this Parliament and possibly of this century. What will the Bill do? It is not accompanied by any improvement in industrial relations. All that we had in the Bullock Report and that period when we were trying to find a different structure and a more satisfactory basis for co-operation between unions, management and industry has been left aside.
The aspect of the step by step approach which pains me is that it has been designed by the Government as a sinister way of pushing through in instalments what they could never have hoped to get through in one Act of Parliament. We have had each instalment after the memory of the earlier one has faded somewhat. It is not until one sees the whole series of the Acts on trade union law that one has the full perspective of what has happened.
None of the legislation has been motivated by an understanding of the history, the role and the future of the trade union movement. It has been a sort of disciplinary exercise. In the name of restoring the unions to their members, constraints have been put 68 on the unions themselves. We have not returned the unions as they were to their members; we have returned the unions to their members with claws cut, wings clipped and restraints put on the range of their activities. Therefore it is no longer the trade union movement that it was.
How can we escape the belief that much in the Bill has been placed there in more intransigent form than it would otherwise have been by the events of the miners' strike and the Wapping dispute? At one stage the Minister said, when he was a little irritated with the reception he received from these Benches, that this was a political Bill and part of government policy. By saying that, he showed that the Government were in no mood to meet criticisms of the Bill in a spirit of constructive co-operation and any spirit of good will. It has been a punitive exercise throughout.
It is the motive behind the legislation that is so painful to bear. However, what is to happen now between the enactment of the Bill and the end of this Parliament, and beyond? The trade union movement is of its own volition at a turning point in its history. It realises that it has to find a different basis for its activities in modern society and in modern industry. There is a deep conflict going on in the trade union movement at present as to the relationship between unions, management and employers. I need not dwell on that point. However, it is fundamental to the future of the trade union movement. Who is assisting that process? Who is offering a hand of help or encouragement? Is it just part of the political conflict that is now going on?
I beseech the trade unions, with what little influence I have left, not to let this Bill and its predecessors embitter them in the work of reconstruction. They must know that they have a big responsibility to the nation and it is their job to fulfil it. By that means the trade unions will earn the confidence and respect of governments, political parties and the nation; and they will restore themselves to a position of pre-eminent influence in the economic, industrial and social affairs of the country. The trade union movement has an amazingly good record of constructive activity in all the turmoil and tumult that it has had to endure. The rioting, the prosecutions and the suppression have been part of the bitter struggle from which I hope we are now emerging. None of this has emerged in these debates, and that is a great pity.
Speaking for a moment to my noble friends, I hope that the Opposition will refrain from making promises about what they will do with this legislation when they get the chance. I believe that numerous mistakes have been made in the past. After the General Strike, for example, a pledge was given that the Labour Government would repeal lock, stock and barrel the Trade Disputes and Trade Unions Act 1927. In 1946 that opportunity came. Ernest Bevin went to the Dispatch Box and said that this was the day of retribution for the 1927 Act. It was to be swept clean from the statute book.
In that triumph he overlooked the fact that since 1927 a war had taken place. One could not face the post-war period with the ramshackle legal and conventional equipment that the trade unions inherited from the war, but that was all they had to 69 go on during the period of reconstruction. Efforts were made by the Labour Government and the Labour Party to bring about a change in trade union law, but those efforts collapsed. Lessons had to be drawn from that. The Labour Party had genuinely attempted to bring a new spirit and a new framework into trade union activity. It is a painful story, all of it. However, to come to this position, it is very difficult to avoid a feeling of considerable bitterness.
I hope that this Bill and its predecessors will now be given a fair run in the period remaining of this Parliament to see how they will work in practice. We must try to look at them in a detached and a not an embittered frame of mind. Can we hope to get out of what we are doing today a new inspiration for cooperation between the trade union movement and the government of the day, whatever political complexion that government may have? I hope we can and that we shall neither in the movement nor in Parliament simply go on saying that what the Tories did shall be swept away and something put in its place, or not as the case may be.
That would be a very bad basis upon which to approach the working of the Bill in the next few years. If we can stand back a little and see how it is working, hoping that all concerned in the trade union movement will try to make the best of it, I believe that in due course we might pinpoint what is wrong, what has been proved to be wrong or what is unacceptable and relatively unimportant and trim the legislation that we have already on the statute book, leaving its fundamentals—there is no doubt that there are fundamentals in the legislation—as a future basis for trade union action.
That is how I feel at the moment and it is in a spirit of hope for the future that I leave the Bill in this House this afternoon. Probably we shall not have another debate on trade unions and their activities, trade unions in society or their place in history for the remainder of this Parliament. What happens to this legislation will occur outside. We must all feel a fairly weighty responsibility for what we are doing today, with the completion of the structure of the trade union movement which the Government have designed for us.
My last word is that I should have felt much better had we had throughout our debates on the trade union legislation a stronger sense of the Government understanding the importance of the work they were doing with a large and historic human institution. It is not something that can be lightly weakened, mutilated or embittered. I fear that that might be the outcome, but I hope that it will not be. I hope that the Bill will prove to be more beneficial than otherwise and that it will help unions to establish a closer relationship with their members. I hope that out of it the trade union movement can go into the next century with the feeling that it has a constructive role in society, leaving some of the memories of the past behind.
§ On Question, Bill passed, and returned to the Commons with amendments.
The Earl of Dundee
My Lords, assuming that your Lordships will agree with me, this will be a good time to break in order to return to business in an hour's 70 time. I beg to move that the House do now adjourn until eight o'clock.
§ Moved, That the House do now adjourn until eight o'clock. —(The Earl of Dundee.)
§ Lord Hughes
My Lords, I wish to object. The Minister of State has described the Housing (Scotland) Bill as perhaps the greatest housing Bill since that of 1980. My Chief Whip is getting behind me, and I am not going to pay the slightest attention to him.
§ Viscount Davidson
My Lords, it has been agreed through the usual channels that the House do now adjourn during pleasure until eight o'clock. The Housing (Scotland) Bill, Committee stage, will then commence.
§ On Question, Motion agreed to.
§ [The Sitting was suspended from 7.5 to 8 p.m.]