Lords Sitting of 7 March 1988

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Sheffield.

UDCs: Private Investment
Baroness Lane-Fox Baroness Lane-Fox asked Her Majesty's Government:
How much private investment has been attracted into inner city areas as a result of the public money invested in the various urban development corporations.
The Minister of State, Department of the Environment (The Earl of Caithness): My Lords, private sector investment of more than £2.25 billion has been attracted to the two urban development corporation areas designated in 1981; and considerable private sector interest has already been stimulated by the four UDCs that my right honourable friend designated last year.
Baroness Lane-Fox: My Lords, I thank the noble Earl for his encouraging reply. Can he give the House some report on the urban development corporation in the Black Country?
The Earl of Caithness: My Lords, yes; there has been substantial progress in that area. More than 20 projects involving £2.5 million have been approved and many are for highway improvement and environmental work. I am pleased to be able to tell my noble friend that today my right honourable friend the Prime Minister announced investment of some £50 million in a spine road to open up the area further.
Lord Mellish: My Lords, is the Minister aware that in 1981 —the date to which he referred—when the Docklands Scheme in London was set up, it inherited eight and a half square miles of absolute complete and utter devastation? There was dereliction every-where; there was not even a toilet to be found. Furthermore, as a result of that development, there is today over £2 billion worth of private enterprise invested there because people see that it has a future. Is this not a pattern to be followed? First the Government must find money for the purchase of land and for the putting in of the infrastructure. Secondly, having done that, they should then let private enterprise have a go.
The Earl of Caithness: My Lords, the noble Lord is right. He will know better than I do that after losing 10,000 jobs in the four years prior to 1981 alone, 660 companies have been attracted to the area. Thus some 10,000 jobs have been created. A considerable amount of housing work has been undertaken for people living in the area. I am pleased to tell the noble Lord that today my right honourable friend the
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Prime Minister announced a further two UDCs. That shows how right we were to implement the programme in 1981, and furthermore what a success it has been.
Lord Simon of Glaisdale: My Lords, can the noble Earl give the figures for Middlesbrough?
The Earl of Caithness: My Lords, I must ask the noble and learned Lord which figures he has in mind.
Lord Simon of Glaisdale: My Lords, I want the figures concerning public investment in the Middlesbrough Urban Development Corporation. I should also like to know what private interest has been shown in consequence of that investment.
The Earl of Caithness: My Lords, that is a new UDC. I understand that some £20 million has been provisionally allocated for it next year. There are already signs that the private sector is becoming interested as a result of the Government's pump priming.
Lord Dormand: My Lords, although the Question concerns public money, does the Minister agree that in fact none of that public money is so-called new money? I should perhaps declare that I am the Deputy Chairman of the Teesside Urban Development Corporation. While I readily acknowledge that so far there has been no restriction on the money available—although the Minister has said it is early days—does he agree that if new money was put into the urban development corporations, they would then be much more successful?
The Earl of Caithness: My Lords, more money is being afforded to the development corporations. As the noble Lord knows, there will be a further £20 million allocated next year for Teesside. Indeed, it is the concentration and how one spends the money that is important; that is where it has been such a success.
Lord Dean of Beswick: My Lords, does the Minister recall that a short time ago, in a debate in this House, I drew the Government's attention to the concern being expressed by private investors about the slowness in processing the scheme? At the time my information was that no additional staff had been recruited to process those schemes in a general sense; they were in fact progressing at an unbelievably slow pace. Can the Mininster give us any information as to whether additional staff have now been recruited to deal with the schemes, thus making the progress more meaningful than it has been up until now?
The Earl of Caithness: My Lords, I cannot give the noble Lord the answer that he requires. The question relates to private investment in the inner-city areas. However, I shall of course look into the matter for him.
Baroness Fisher of Rednal: My Lords, as regards the Black Country urban development, can the noble Earl tell the House whether building has already commenced under derelict steelwork sites?

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Furthermore, are the roads that the Minister mentioned a continuation of the plans that were laid by the West Midlands county authority before abolition?
The Earl of Caithness: My Lords, I am afraid that I do not have the necessary details to enable me to answer the noble Baroness's last question. Perhaps I may write to her on the matter.
Lord Campbell of Alloway: My Lords, can my noble friend the Minister explain, in this context, what is the distinction between the so-called new money and old money?
The Earl of Caithness: My Lords, the new money to which my noble friend refers is money that has been committed by the Government in their White Paper. That has been allocated and targeted to various areas, details of which were announced this morning.
Baroness Lane-Fox: My Lords, does the group of leading construction companies which is now forming an urban development company known as BUD count as new money?
The Earl of Caithness: My Lords, I do not know.
Lord McIntosh of Haringey: My Lords, when responding to the question of the noble Lord, Lord Mellish, the Minister appeared to agree that the London Docklands Development Corporation was an example for all inner cities. Is it not the case that 10 per cent. only of new jobs in the Isle of Dogs, for example, have gone to people who live in the Isle of Dogs and a further 10 per cent. to those who live in Tower Hamlets? That is not an especially good example. With regard to the new urban development corporations, is it not the case that £68 million in block grant has been taken away from those areas since 1981?
The Earl of Caithness: My Lords, the UDCs have helped considerably within, in particular, docklands where one quarter of those who purchased homes on UDC sites were former local council tenants. They have now become owner-occupiers, which is a good thing. One third of the purchasers of homes built on LDDC sites were people from the docklands area.
Lord Cledwyn of Penrhos: My Lords, the noble Earl is very properly answering a Question on urban development corporations. As I understand it, in another place Mr. Kenneth Clarke, of the Department of Trade and Industry, will be answering a question about the plans announced this morning by the Prime Minister. Who will have responsibility for the operation of the so-called new policies announced by the Prime Minister? As I understand it, she had a large number of Cabinet Ministers surrounding her this morning. The House and the country will wish to know who will carry the can.
The Earl of Caithness: My Lords, as the noble Lord the Leader of the Opposition knows, interest
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in the inner cities varies across government. The co-ordinating Minister is my right honourable friend Mr. Kenneth Clarke.
Lord Mellish: My Lords, further to the question asked by the Opposition Front Bench about London docklands, is the Minister aware that the trouble is that the Isle of Dogs forms only a small part of the East End of London, and it is about time some of them did their homework?

Care in the Community: Advance Planning
2.45 p.m.
Lord Allen of Abbeydale Lord Allen of Abbeydale asked Her Majesty's Government:
When they intend to bring into force Section 7 of the Disabled Persons (Services, Consultation and Representation) Act 1986 relating to forward planning for persons discharged from hospital after treatment for at least six months for mental disorder.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Skelmersdale): My Lords, officials of the Department of Health and Social Security have opened discussions with local authority representatives on Section 7 as part of a continuing dialogue on implementation of the Act. It will be necessary to involve health authority representatives later as the section places obligations on them as well. Officials are seeking to agree a timetable as soon as possible for bringing Section 7 into force.
Lord Allen of Abbeydale: My Lords, I am much obliged to the noble Lord for that Answer, which is slightly more encouraging than I had expected. The Act, which was supported on all sides of the House, received the Royal Assent on 8th July 1986. Here we are almost in sight of a time when two years have elapsed before we have a firm date. Does the Minister accept that, if a mentally ill or mentally handicapped person is to be discharged from hospital, an essential part of any policy of care in the community must be that plans should be made in advance for that person? Does he further agree that the present position up and down the country is rather patchy and highly unsatisfactory?
Lord Skelmersdale: My Lords, to put a slightly different gloss on the question asked by the noble Lord, Lord Allen of Abbeydale, since the noble Lord asked a Question of the Government Front Bench on 2nd March last year, six sections of the Act have been implemented. As I say, discussions are under way to bring into force Section 7. The Government have consistently made it clear that the provisions of the Act would have to be introduced gradually, and so that will come as no surprise to the House.
On the other point, Ministers have repeatedly emphasised the importance that they attach to professional teams agreeing individual care plans with each long-stay patient. I made the point in the House last week in answer to a Question from my noble friend Lord Mottistone. Individual care plans are essential for each long-stay patient including,

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where appropriate, with their families at the time of discharge from hospital.
Lord Campbell of Croy: My Lords, the progress made to enable people with mental disorders to live in the community is welcome. But does my noble friend agree that care and supervision are needed in case of possible relapse and to arrange, if necessary, for return to hospital?
Lord Skelmersdale: Yes, I must certainly agree with my noble friend. A measure of our concern for effective after-care is that we plan to issue detailed guidance about that in two or three months in relation to mental illness. In relation to mentally handicapped people, the problem is much better known and much more widely understood. In terms of the supplementary question asked by the noble Lord, Lord Allen, the situation is not nearly so patchy.
Baroness Faithfull: My Lords, does my noble friend agree that to achieve good community care there must be a sound relationship between health and social services? Does he agree that the training of social workers is vitally important? Will more money be available for the training of social workers?
Lord Skelmersdale: My Lords, yes, I most certainly agree with the premise advanced by my noble friend Lady Faithfull. A £10 million training award was announced recently by my right honourable friend the Minister for Health.
Lord Ennals: My Lords, in view of the increasing number of hasty discharges and the all too frequent re-admissions of those discharged too early, do the Government accept the urgent need for the implementation of the section? Are resources a reason for further delay and, if so, what sort of sums are involved?
Lord Skelmersdale: My Lords, so far as the sums are concerned, this is something which we are discussing with the local authority organisations. It has been suggested in certain quarters that we are talking about up to £25 milion but I would not put too much reliance on that. As regards the general premise of after-care, as I said in my original answer, this is a joint operation between social services departments and district and sometimes regional health authorities. This is another point on which discussions will have to be pursued.
Lady Kinloss: My Lords, is the Minister aware that in 1986, 25,000 people were admitted to hospital with schizophrenia and 90 per cent. of those were readmissions? Can he say whether there was adequate care for them in the period between their admissions? Is it the responsibility of the health authority, or whose responsibility is it?
Lord Skelmersdale: My Lords, no, I could not say that there was adequate care in 100 per cent. of those cases. I should have to look at the individual cases to establish whether there was. Ultimately it is the responsibility of the district health authority.

Riverside Health Authority Proposal
2.51 p.m.
Lord Ennals Lord Ennals asked Her Majesty's Government:
Whether they will call in for consideration the proposal of the Riverside Health Authority to re-organise hospital and community services including the closure of the Westminster Hospital and the Westminster Children's Hospital.
Lord Skelmersdale: My Lords, at present we have no plans to call in the Riverside proposal. However, any major capital scheme for a new Westminster and Chelsea Hospital proposed by Riverside Health Authority would need the approval of Ministers.
Lord Ennals: My Lords, is the Minister satisfied with a plan for a massive new 655-bed hospital in traffic-jammed Fulham, leaving no hospital services at all in Pimlico, Victoria, Westminster, Belgravia and Mayfair for residents, the working population or indeed visitors? Secondly, is he satisfied with the quite inadequate costings of this project?
Lord Skelmersdale: My Lords, since my right honourable friend has as yet made no decision to call in the proposal, I think it would be a mistake for me to answer the noble Lord directly. However, this matter is out to consultation. I have no doubt that the community health council for the Riverside Health Authority will establish in its own mind the validity of what the noble Lord has just said.
Lord Ennals: My Lords, is the Minister aware that his noble friend the Minister for Health has twice been publicly referred to as having given his approval to this proposal? That is why I asked the Minister whether he would call it in.
Lord Skelmersdale: My Lords, I can give a categoric assurance that no formal approval has been given by the Government.
Lord Northfield: My Lords, can the noble Lord say what is supposed to be wrong with the Westminster Hospital that we now have? It is not an old building; it was built just before the Second World War. A new wing was built recently, which cost a lot of money; it has a fine reputation for research and a fine reputation for teaching. In every sense it is one of the best hospitals in the country. Why is there a proposal to close it?
Lord Skelmersdale: My Lords, the Riverside Health Authority has established that it no longer meets present-day criteria and that in the authority's view it is in the wrong place. That is the substance of the consultation paper: to reformulate the provision of hospitals within the health authority area.
Lord Wallace of Coslany: My Lords, is the noble Lord aware that any proposal to close Westminster Hospital will be met with considerable anger and resentment by all sections of the Palace of Westminster? Many of us have received its services and no doubt look forward to continuing to have its support.
Lord Skelmersdale: My Lords, there is clearly intense interest in the hospital among Members both of your Lordships' House and of another place as well as among the staff of the Palace of Westminster, although they may not be the most numerous of the people served by it. The health authority is very well aware of that and I understand that the implications of any change are being discussed with the relevant officers of both Houses.
The Earl of Selkirk: My Lords, is my noble friend quite sure that the Riverside Health Authority does not want the money from selling that piece of land?
Lord Skelmersdale: My Lords, the authority has produced a large scheme which affects three hospitals. There is no doubt that this money is included within the total cost of those hospitals.
Lord Ennals: My Lords, is the Minister saying that the money from the sale of those hospitals will come to the district health authority automatically for its expenditure? Is he satisfied with the consultative arrangements by which only one plan is put out for consultation and no others are considered?
Lord Skelmersdale: My Lords, as far as one plan is concerned, it is quite normal for a district health authority to make up its mind what it wants to do and then to put the matter out to consultation. The procedure is just the same now as it was in the noble Lord's day.
Baroness Phillips: My Lords, bearing in mind that the hospital is sited in the borough which sold cemeteries for 10p—I am sorry, I overstated the amount; for 5p—would it not be wise for the Government to consider whether much revenue will be gained before it disposes of this very valuable hospital?
Lord Skelmersdale: My Lords, I was not aware of the value which the local authority presumably, rather than the district health authority, put on cemeteries in the area. However, I would make the point that Riverside has three district general hospitals: Charing Cross in the east; St. Stephens, Fulham and Westminster in the west. The district health authority considers that only two district general hospitals are needed. That is the rationale for putting this plan out to consultation.

Abernethy Forest RSPB Purchase
2.56 p.m.
Lady Saltoun of Abernethy Lady Saltoun of Abernethy asked Her Majesty's Government:
Whether the Royal Society for the Protection of Birds has given any undertaking with regard to stalking and wildfowling in the Abernethy Forest following its recent purchase of the estate.
The Earl of Caithness: My Lords, we approved the Nature Conservancy Council's offer of grant towards the purchase of Abernethy Forest by the RSPB only
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after receiving assurances that shooting would be allowed to continue at levels which were compatible with conservation on this important site. We understand that the RSPB will lease back the deerstalking and grouse shooting rights on the open moor to the current owners for 30 years in the first instance. There is no significant wildfowling interest on the site
Lady Saltoun of Abernethy: My Lords, I am most grateful to the noble Earl for that very satisfactory Answer. Since there is considerable concern among neighbouring farmers and estates lest the RSPB's purchase of Abernethy Forest will lead to a proliferation of vermin, can he say what the RSPB regards as vermin and whether it will control such pests as foxes, rabbits, rats, mink, black game and birds of prey?
The Earl of Caithness: My Lords, I think that the RSPB's interpretation of "vermin" will be in accordance with the requirements of the wildlife and the countryside legislation. But it will depend also on the area, because the area is in two parts. First, there is the SSSI and the national nature reserve where there will have to be control of red deer in order to allow natural regeneration of the forest. On the open hill, where the RSPB will be the owner and therefore responsible for vermin, I am sure that it will take account of the fact that it will be its responsibility as a good neighbour to keep down the foxes, hooded crows, etc.
Lord Taylor of Gryfe: My Lords, since assurances have been given with regard to the wildfowling and stocking interests, may I ask the Minister whether similar protection is being given to the people who earn their living on the estate—foresters and others who have to work in the area—or is it strictly for the birds?
The Earl of Caithness: My Lords, there will be a management agreement for the SSSI between the Nature Conservancy Council and the RSPB which will involve a certain number of forestry workers, as the noble Lord knows. But the mere fact that the RSPB has leased back the shooting rights on the open hill, and quite rightly so, will allow employment to take place.
Lord Morris: My Lords, may I ask my noble friend, in accordance with the Answer to the original Question, how the Royal Society for the Protection of Birds reconciles that role with its determination to encourage the shooting of grouse?
The Earl of Caithness: My Lords, there is no doubt that there is a natural link between conservation and shooting. Indeed, those who do shoot often prove to be the very best conservationists.
Lord Grimond: My Lords, is the Minister aware that up to now experience at any rate in Orkney shows that the Royal Society for the Protection of Birds is not the keenest to keep down hooded crows? Has the Minister received any specific undertaking that the society will keep down such things as hooded crows in this area or is he only hoping for the best?
The Earl of Caithness: My Lords, on the matter of the management of the National Nature Reserve (which will be a matter between the Nature Conservancy Council and the RSPB) we do have a bit more locus than we do with an ordinary landowner. I am sure that we should like landowners to behave in a responsible way, but we should not care to interfere with their rights in perhaps the way that the noble Lord and his party would like to.

Business
3 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Employment Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the Committee stage of the Betting, Gaming and Lotteries (Amendment) Bill will be taken.

Procedure of the House
3.1 p.m.
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move that the Second Report of the Select Committee on Procedure of the House be agreed to.
In the debate last November on the working of the House it was pointed out that there are no procedural rules to cover privatised industries. In Item 1 of this report the Committee recommends guidance which would limit the tabling of questions on privatised industries to those matters for which the Government have retained responsibility.
In Item 2 the Leave of Absence Committee has recommended and the Procedure Committee has endorsed a proposal which would greatly simplify the leave of absence scheme. It will operate from the next Parliament on the principle that leave of absence should be granted only to those Peers who ask for it and not by default.
With regard to Item 3 the Committee has twice deliberated on the recommendation by the informal group on the working of the House that the digits of the Clock should turn red after 15 minutes. There is clearly a deep division of opinion in the House and the Committee recommends that this proposal should not be proceeded with for the moment. I hope that otherwise the report speaks for itself. I beg to move.
Moved, That the Second Report of the Select Committee be agreed to.—(The Chairman of Committees.)
Following is the report referred to:
1. STARRED QUESTIONS ON THE PRIVATISED INDUSTRIES
The Committee have considered whether questions on privatised industries are desirable and in order. Procedural rules have existed since 1978 governing the tabling of questions to the Government on nationalised industries (First Report of the Procedure Committee 1977–78, item 1), but up to now no procedural rules have been devised to give guidance about privatised industries.
Since 1979 the Government have followed a privatisation programme which has involved either legislation (in the case of the
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statutory public corporations) or a simple disposal of shareholdings and other interests acquired otherwise than by statute. Privatisation has not followed any consistent pattern, and the method of disposal chosen and the extent of Government interest in controls have depended on the circumstances of the industry concerned. For this reason, the extent of Ministerial responsibility for privatised undertakings is very variable. Where undertakings have been disposed of to the private sector there is no further Ministerial responsibility but where the Government or parent corporation retains an interest in the undertaking, usually in the form of a power to give directions or a shareholding, there remains a degree of responsibility. In some companies, the Government retain a "special" or "reserve" share to protect them from a foreign takeover, or otherwise to protect the national interest.
In the light of these considerations, the Committee recommend that the following guidance in regard to the tabling of questions on privatised industries should be observed:—
"The tabling of questions on privatised industries is restricted to those matters for which the government has retained responsibility. For instance, statutory power may be retained by Ministers to give directions either directly or indirectly through a regulatory body or to exercise rights conferred by a "special" shareholding. Questions on the day-to-day administration of privatised concerns do not fall within government responsibility and are therefore undesirable."
2. LEAVE OF ABSENCE
The Leave of Absence Committee have considered the operation of the leave of absence scheme, following experience of administering the scheme at the beginning of this Parliament. They noted that, when the scheme was initiated some 30 years ago, the proportion of Lords who took advantage of the scheme was higher than it is today, when the activity of the House and numbers who attend regularly have risen sharply. An elaborate administrative machinery exists for the purpose of identifying those Lords who should be granted leave of absence. For the majority of Lords, the inquiry whether they do or do not wish to be granted leave establishes what is already self-evident.
The Leave of Absence Committee have concluded that in modern circumstances the scheme is of marginal relevance and does not require a general trawl of Lords, which takes months to complete and which, in the current Session, produced the result that of the 162 Lords who applied for leave, 124 were already on leave at the end of the last Parliament.
However, the Committee recognise that the scheme does give to those Lords who take seriously the demands of their Writ of Summons, but who, for whatever reason, cannot attend, the opportunity to have their position regularised. For this reason, the Committee do not recommend that the scheme be abolished but, instead, propose that it be reformed to operate on the principle that leave of absence should be granted only to those Peers who ask for leave and that it should not be granted by default.
The Committee accordingly recommend that in future:

(a) At the beginning of each Parliament the Clerk of the Parliaments should write to those Lords who were on leave at the end of the previous Parliament asking them if they wish to apply for leave for the new Parliament. Leave will be granted only to those Lords who so apply;

(b) To ensure that all Lords are made aware of the leave of absence scheme, the Dissolution Notice, which is sent to all Lords giving details of the opening of a new Parliament and the procedure for taking the Oath, will include the following notice:

"Leave of Absence
Letters asking all Lords whether they wish to apply for leave of absence are being sent only to those Lords who were on leave at the end of the last Parliament. Other Lords who wish so to apply are asked to communicate with the Clerk of the Parliaments.";
(c) Details of the scheme will be included in the "new Peers' Kit" of general information which is given to Lords on their introduction and to hereditary Lords when first taking their seat.
3. CLOCKS
The Committee returned to the subject of clocks, and the suggestion made by the Group on the Working of the House that the digits of the clocks should turn red after fifteen minutes. They received further technical advice that a clock as recommended by the Group would be less practicable and economical than one with hours and minutes and a flashing colon. After lengthy deliberation, they came to the conclusion that there was a deep division of opinion in the House on the subject and recommended that no action be taken at present.
4. PUBLIC BILL COMMITTEES
The Committee have reviewed the procedure for Public Bill Committees, in the light of the Pilotage Bill experiment, the Report by the Group on the Working of the House (paragraphs 21–28), and views expressed in the debate on the Group's Report on 4 November.
The Committee have considered:

(a) whether Public Bill Committees in future should sit in the mornings; and

(b) the method of holding divisions in Public Bill Committees.

Time of Sittings
Under existing procedure as stated in the Companion, Public Bill Committees normally sit between 3.15 and 5.45 pm, except on Thursdays, when they sit from 3.45 to 6.15 pm. The Committee adjourn for eight minutes during divisions in the House. The majority of those taking part in the Pilotage Bill Public Bill Committee experiment thought that morning sittings would have been more convenient, but opinion was divided whether the sittings should last only 2½ hours, or longer. This change would allow Public Bill Committee participants to attend business on the Floor of the House, and would not face conscientious members with a conflict; but, on the other hand, it would require members and staff to give additional time to the House.
The Committee recommend that the times of sitting should in future be left at large to be decided by the Committee itself in each case.
Divisions
At present, when there is a division in the Committee, the doors are locked two minutes after the question has been put and challenged. A majority of those taking part in the Pilotage Bill believed that a delay of longer than two minutes was desirable.
The Committee recommend that six minutes would be a reasonable time to allow, unless all members were present within that time. They also suggest that a division in a Committee should be broadcast on the TV screens, to summon members of the Committee from other parts of the House.
5. POSTPONEMENT OF BUSINESS
In the First Report, Session 1984–85, the Committee proposed the introduction of a procedure to enable business to be postponed without notice in certain circumstances. The Committee recommended that the procedure should be introduced, in the first instance, on an experimental basis, which was to be reviewed. Accordingly, the Committee have reconsidered the matter.
On 29 April 1985, the House agreed "That, notwithstanding the terms of Standing Order 37, business may be postponed without notice with the unanimous leave of the House until further order …". The procedure has since been used only once, on 19 May 1986. On that occasion, the procedure did not work entirely smoothly. In accordance with this Committee's recommendation, it was necessary for the Bill, which it was desired to postpone, to be called on by the Clerk before the motion to postpone it could be moved. This fact, however, was not fully understood in the House at the time, and some confusion resulted. Furthermore, when the postponement motion was moved, no reference was made to the right of any noble Lord to object and thereby to prevent the motion from being moved.
The Committee recommend that the experiment should continue, and that it would be premature to recommend a permanent change to Standing Order 37.
On Question, Motion agreed to.

Employment Bill
3.3 p.m.
The Minister of State for Defence Procurement (Lord Trefgarne): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Trefgarne).
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Right to a ballot before industrial action]:
The Chairman of Committees: My Lords, in calling Amendment No. 1 I have to point out that if this amendment is agreed to, I cannot call Amendment No. 2:
Lord Trefgarne Lord Trefgarne moved Amendment No. 1:
Page I. line 9, leave out from ("endorsed") to end of line 15 and insert ("any industrial action in which members of the union (including that member) are likely to be, or have been, induced by the union to take part or to continue to take part").
The noble Lord said: In rising to move Amendment No. 1, I wish to speak at the same time to Amendments Nos. 4, 98 and 104. Those amendments are necessary to clarify the original intention behind the clause; namely, that a member should have the right to restrain his union from inducing members, including himself, to take industrial action without majority support for the action from a proper secret ballot.
Clause 1 would now give a union member the right to restrain his union from inducing him and others to take any kind of industrial action without a proper secret ballot. Union members will not and should not need to establish whether the union's inducement involves any breach or interference with the performance of employment contracts or any kind of tort.
One (and a sufficient) reason why the member needs to be able to seek a court order regardless of the tortious nature of any act of his union done or likely to be done without the support of a proper ballot is that the member's job is potentially at risk whatever the nature of the industrial action concerned. The Faust case, with which I feel certain Members of the Committee opposite will be familiar, established that an employee can face dismissal and loss of right to claim unfair dismissal for taking industrial action involving no actual breach of his employment contract.
It may be suggested that the widening of Clause 1 to require a ballot where any industrial action is proposed is a significant extension which demonstrates again the Government's antagonism towards trade unions. But that would not be correct. Industrial action would fall within Clause 1 as it stands at present in the very large majority of cases.
It is surely far better that unions and their members should know that a ballot is needed whenever industrial action is proposed than that they should be left in a state of uncertainty as to whether a ballot is needed when certain forms of industrial action are proposed. To leave the clause in its present form would create that uncertainty and that would not be in the interests of either unions or their members.
Trade unions can avoid the risk of a court order against them by simply making sure that they do not induce members to take industrial action of any kind without the support of those members in a proper secret ballot. A proper ballot which produces majority support for the union's inducement will protect a union from legal action either under Part II of the 1984 Act or under Clause 1 of this Bill.
I shall touch briefly on Amendments Nos. 98 and 104 which are proposed to Clause 16 and which have

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a bearing on this matter. These amendments are simply consequential to the amendments that I have now spoken to. In themselves they make no change to the effect of the clause as it stands in the Bill. I beg to move Amendment No. 1.
Lord Wedderburn of Charlton: We can thank the Minister for his explanation. He would not be surprised if my noble friends and I said that we felt that we had never seen such an elegant proposal for clarification by way of amendments that are so obscure.
The new amendments in fact present the Committee with a new version of the Bill. We are not only presented with a new version of this Bill but, as the Members of the Committee will see when they come to Schedule 3, we are presented with a new version of the 1984 Act as well and a new system in respect of the demand for ballots. Our disagreements in respect of ballots are very often centered—quite apart from the fact that we see no reason why the employers should be enabled to enforce them—upon just this issue of how they are to be drafted and enforced.
In broad terms, new Clause 1 and many of the amendments that go with it—although they cannot, as the noble Lord has said, be all debated at once—reshape and widen the areas in which a dissident member or an employer, as we come to him, can demand a ballot. One of the things we are saying is that by taking that area beyond the boundaries of that which is in any way unlawful, the Government place an unreasonable and quite unjustifiable limitation upon the action of the majority.
In terms of the practicalities, we say that far from clarifying the position, this new Bill with which we are presented confuses the issue. I pause to say that it is quite clear that we shall have to come back to all this on Report because the amendments were put down last Thursday as I understand it at 12 o'clock. The Government have had since last October to find out that their Clause 1 was so fundamentally inept that it now needs uprooting from its fundamentals. Indeed, the 1984 Act has been in force since that year and the Government now see that that Act was wrong all the time.
We can discuss this Bill in Committee. But if this is a revising Chamber then if ever there were a case for having further consideration of a Bill on Report surely this is it. The noble Lord and I have debated these matters before, and I know that we agree that one of the problems is the technicality of the area of law itself. Therefore in terms of the practicalities rather than the technicalities, we say that the Bill is so wide and vague with these amendments that a trade union, workers, and in some ways employers, will never know what must be done. We say that the Bill will produce a situation in which a union official—a general secretary, for example—who comes out of negotiations and says that the employer's offer is unacceptable will not know whether he ought immediately to hold a ballot.
I shall try to spell out a few of the points in detail, as one must try to do in Committee. First, the old Bill, as the noble Lord has said, spoke of a trade union authorising an act which was or would be an
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inducement to its members to break their employment contract or to interfere with the contract. We shall come to consider interference later in the Faust case, and perhaps in a few other cases as well. However, that was reasonably clear; it is a well-known legal formula
The new Bill speaks of the need for a ballot when the union is authorising industrial action in which members are likely to be induced by the union to take part in industrial action. It is in respect of the word "likely" that the first problem arises. A statement that the wage offer from the employer is unacceptable has to be judged against likelihood, and "likely", in the words of Lord Justice Salmon in 1970:
"is just one of those words that have a wide range of meanings which vary according to the context in which they are used and which have been subject to considerable differences of judicial opinion".
For example, the noble and learned Lord, Lord Denning, decided 15 years ago that in one context "likely" meant "it may well be", and in a different context—that of whether a worker was likely to be dismissed—Mr. Justice Slynn said in 1978:
"In this context it means a 51 per cent. probability".
I ask the noble Lord whether or not that is what it means here. Do union officials now have to calculate whether what they are saying as a statement of union policy carries a 51 per cent. probability that someone may be induced to engage in industrial action?
That would be difficult enough. But the clause, when we read on, will include the first half of the present subsection (5), which I invite the Committee to look at on some occasion. It says that an inducement includes a reference to an inducement which is or would be ineffective. It used to say that the likely ineffectiveness should be disregarded. However, that will be repealed by another of the noble Lord's amendments, as I understand it. That is to mount a Pelion of perplexity upon an Ossa of obscurity. If a businessman were to be surrounded by a web of mystery of this character, he would appeal to the noble Lord, Lord Young of Graf ham, and say that it was a burden on business. And he would be right.
That is bad enough. However, there is a further point early in the amendment which I mention briefly. The phrase that used to be there, which referred to action taken in the course of an actual proposed strike or industrial action, was understandable because the words "in the course of" have a clear meaning. Now we have a phrase which tells us that the test is to be whether it induces or is likely effectively to induce action in which the worker takes industrial action. There are problems there which I hope the Minister will explain during the Committee stage.
Thirdly, I ask the Minister whether I am wrong in thinking that no amendment has been put down and whether one will be put down in respect of Section 10(3) of the 1984 Act. Section 10(3), if it is not amended, will cause a test to be placed on the obligation to hold a ballot if the employer goes to court which is different from the test which the amendments would insert if a union member goes to the courts for an order. Such points are not mere technical details of drafting. Cases are won or lost on

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the difference between phrases such as "in the course of" or "in which" and on such words as "likely".
Perhaps I may pass to the amendment to page 2, line 1. We find there an equal if not a worse case. When the court is approached, the amendment says that it:
"shall make such order".
One would have thought that, with the amount of problems that have already been introduced, the court might be allowed a discretion. The Government do not give courts any discretion. They tell the courts that they must make an order. They must do that to ensure that no further inducement of the members to continue the action takes place. On that point the logic of the Government is quite understandable. However, it is not understandable that the amendment then states:
"that no such member engages in any conduct after the making of the order by virtue of having been induced before the making of the order to take part or to continue to take part in the action".
I ask the noble Lord why the words "any conduct" are used. An order that the member should not continue to take part is understandable, at least on the Government's logic. But why are the words "any conduct" used? Many different types of conduct can be induced by a statement.
Perhaps I may give a final and practical illustration. In such consultation with trade union and other colleagues as I have been able to make since last Thursday at 12 o'clock—I register again that that is the point at which the Government placed before the Committee a rewrite of the Bill—some examples were put to me which were perplexing. The draftsmen in the union TASS, or the MSF as it is now, were the first, I believe, to invent the form of industrial action that students sometimes adopt—that of working without enthusiasm. However, today there is an example of what some people have called "thinking action". When unions meet macho management which tries to get them to do more and more without recompense, one of the things which happens is that the flow of ideas that skilled workers of that sort so often keep sending to management and on which management often relies tends to slow up. That has been known to be encouraged by those who speak for the union.
If that sort of thing happens, presumably it needs a ballot. We shall come later to the definition of all forms of industrial action in an amendment which I shall speak to at a later time. However, the noble Lord says that all forms of industrial action are covered. Therefore, the member—or indeed the employer, because they will be equated in the procedures—goes to the court. The court sees that there has been some encouragement of "thinking action". Therefore, what is the order to be? Will it be to tell the union that they must not take part and engage in any such conduct? The union is to be ordered by the High Court to ensure that its members think.
There is a similar situation with other forms. As the noble and learned Lord, Lord Donaldson, said in one of his judgments many years ago, the forms of industrial action, like real life, are infinite or are only
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bounded by human ingenuity, which is almost the same thing. Is the High Court to be asked to make orders to abstain from all the types of varieties of conduct which may have been likely to be ineffectively induced by the statements made?
That is a first shot at understanding what the clauses mean. However, we know they mean one thing. A court is to tell a union to do something to its members. That is another example of what Lord Devlin called, in his well-known inquiry into the port industry in 1965, asking trade union leaders to be policemen. He said then that trade union leaders cannot be asked to be policemen and they cannot be called in by employers to enforce the law. The mechanism which is now being set up makes that mistake all over again. Perhaps one might say that at the very best that will produce unofficial actions and a rash of actions for which one has no officials to bring in for negotiations and to conclude an agreement.
The fragile Meccano set which was put together in the first Bill that we saw in the debate on Second Reading has begun to fall apart because its nuts and bolts were not very good. What is being attempted is to stick in some Lego that makes no contact with the machinery or in many ways with real life. I know that we shall not agree on that conclusion but I ask the Minister to answer some of the specific questions that I have raised, such as that relating to Section 10 of the 1984 Act. I give notice that so far as we can see at the moment we shall be opposing this and the consequent amendments.
Lord Campbell of Alloway: Perhaps I may say a word in support of Amendments Nos. 1 and 4 and the other grouped amendments. The structure of Clause 1, which incidentally is to be opposed as standing part of the Bill, is of crucial consequence. The access which it affords to the courts is affected by Clause 2. It impinges to some extent on Clause 3 as implemented by Clauses 4 and 5 as regards unjustifiable expulsion and disciplinary penalties, also incidentally to be opposed as standing part of the Bill.
As Amendments Nos. 98 and 104 acknowledge, it has to be construed in context with Clause 16 concerning ballots before industrial action intended to prevent manipulation of the vote for selective industrial action. That provision was not canvassed in the Green Paper but is wholly justified in the light of experience. However, that is also to be opposed as standing part of the Bill. Is it not rather idle to talk about Lego or Meccano? What we are considering is a hull-down opposition to the principle of the Bill.
It is not realistic to consider the government amendments to Clause 1 or to speak to other clauses without bearing in mind the impact of Clause 1 on the other clauses of the Bill. With the greatest respect to the noble Lord, Lord Wedderburn, well known legal formulae tend at times to outwork themselves, turning into unreal and unworkable distinctions or proving wholly inappropriate for the establishment and the protection of a new right. This Bill seeks to establish and protect a new right, a new freedom, and the discretion of the court must be wide if it is to be able to protect that freedom.

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Clause 1 is a key provision of the Bill. Therefore, Amendments Nos. 1 and 4, seen in their true perspective, are also key provisions having particular regard to the fact that Clause 16 amends Sections 10 and 11 of the Act of 1984 to require a trade union intending to organise industrial action to conduct separate ballots at each place of work where the members are entitled to vote. It is not an easy patchwork but it is intelligent. In turn, Clause 16 is affected by Clause 14. I hope that when we come to it Amendment No. 93 will commend itself to the Committee.
Clause 1 and Amendments Nos. 1 and 4, in context with the other implementing clauses to which I have referred, are designed to establish and protect by appropriate legal process this new fundamental freedom of a member of a trade union to apply to the courts to restrain his trade union from authorising or endorsing any industrial action unless there has been support for such action in a ballot.
As there is clearly opposition in principle, it is right that the Committee should remember that this provision was canvassed in the Green Paper at paragraph 2.24. Comments were sought and 41 out of the 55 were in favour. It is however fair to say that the unions were equally divided—not totally opposed. In a MORI poll 70 per cent. of trade union members, 64 per cent. of them Labour-voting, were in favour. In the 1987 Labour Party manifesto a right for union members to have secret ballots on decisions relating to strike action was promised. Any form of hull-down opposition would be contrary to the thinking then in the Labour Party and to the thinking, in the past at all events, of many Labour-voting trade unionists.
These governments amendment are much to he welcomed because of the drafting of the Bill in its present form. Without the amendments the Bill lacks the requisite clarity and precision. It reflects the archaic and wholly unrealistic distinction between breaking a contract of employment and interfering with the due performance of a contract of employment. That distinction was recognised as unrealistic and irrelevant a long time ago—in 1969—when the noble Lord and I were on opposite sides in a certain case which involved a blockade of oil supplies by the Transport and General Workers Union at the Imperial Hotel in Torquay. It was a common law decision in which the noble and learned Lord, Lord Denning, delivered the leading judgment. It is arcane, out of date and irrelevant to the creation of this new right.
That form of drafting in relation to a proposed strike or actual strike is limited by the use of the word "strike" to a withdrawal of labour but then extended without limitation to other industrial action. As my noble friend Lord Renton no doubt will explain authoritatively, this is very unsatisfactory because the judicial interpretation could be limited quite unreasonably to a form of limited ejusdem generis construction.
In plain terms, is it not right that we should establish a ballot before industrial action? Should we not enable a trade union member to complain to the courts if any industrial action is called without a
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ballot? Is it not right that the courts should be able to protect this right of a trade union member, if infringed? Such is the essence of the matter. If these three things can be done, surely it can only enhance the status of trade unions generally and reverse the decline in membership. I hope that we shall not hear the cry of "union bashing". On this side of the Chamber we believe in the process of collective bargaining which only trade unions can afford. Without that one can never achieve cost predictability.
These provisions sweep aside archaic legal technicalities which reflect the development of the law since 1906. They sweep aside conflicting legal decisions as to whether there is, or is not, any such thing as a political strike. They sweep aside questions as to whether a political strike can be a trade dispute as defined by the Act. The proposal in plain terms is that any industrial action authorised or endorsed by a union without a ballot may be subject to complaint by a member of the union. That is a broad, realistic approach; it is certainly sound and I hope that it will appeal to the Committee.
3.30 p.m.
Lord Molloy: I have listened carefully to the contribution that we have had from the noble Lord, Lord Campbell of Alloway, and I have been deeply touched by it. Never before in my life had I believed that the Tory Party was deeply in love with the freedom-loving British trade union movement. Every piece of official legislation passed in the British Parliament that has impeded the trade union movement or in any way helped to discredit it has always been introduced by a Conservative Government. When one realises that the endeavours of Toryism have been mimicked by Fascists in Europe—
Lord Vinson: Oh no, no.
Lord Molloy: Oh yes. The first thing that the Fascists of Europe had to do was to destroy the trade union movement. Many trade unions—the French, the Belgian and the German—based themselves on the British trade union movement. I for one am very proud of the fact that it was the British trade union movement that faced up to that challenge.
When one looks at the Taff Vale dispute one feels particularly ashamed of what has happened in the British Parliament as it has affected the mass of ordinary working men and women who are members of trade unions. When he comes to reply I want the Minister to say quite clearly that when this Bill becomes an Act, if all the conditions, including those in his amendment, are adhered to, employers must accept the fact that trade unions which adhere to these rules and regulations through their ballots will be strenuously supported by Parliament. I hope that he will make it transparently clear and say without any doubt whatsoever that if these rules are adhered to the trade unions will receive the full support of the British Parliament.
There is another answer that I want from the Minister. If, for example, a number of free Britons who are not members of any trade union or

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employees' association in this free land of ours decide to withdraw their labour, will he confirm that in as much as they are in no way members of any trade union the provisions of this Bill when it becomes an Act will in no way have an effect on them? I believe that free working men and women who do not happen to belong to any trade union and who desire to withhold their labour should be able to do so without being harassed through the provisions of this Bill when it becomes law.
I believe that these matters have to be made transparently clear. There have been many instances in the distant and recent past in which governments have completely misinterpreted the desires of the trade union movement. There have been occasions when some people in the trade union movement who have not properly understood the principle of freedom in the trade union movement have abused that principle also. Generally speaking, however, the British trade union movement has an exceptionally good record for civilised and decent behaviour in the defence of freedom and democracy. It may well be that on occasion—and there have been occasions—extremist trade unions have reacted to extremist Right-wing Tory Governments and one has to take note of that. That is part of history.
Lord Vinson: May I interrupt—
Lord Molloy: In a moment—I have a few things to say first. In a few moments the noble Lord will be much more angry even than he is now. I want to say this. I want it to be quite clear when the Minister replies that he will acknowledge that there are bands of Britons, British men and women, who may not feel too safe with any trade union movement at present but who band themselves together without calling themselves a trade union, and that if they take any action whatsoever to ensure that their point of view is fully understood by their employers and the people of this country, then those people will in no way be harassed by a Bill which refers to trade unions or trade unionists. The Minister must acknowledge that there will be complete and total freedom for those people to take whatever industrial action they like without being harassed by the provisions of this Bill. I hope that when he replies he will make that transparently clear.
Lord Vinson: Before the noble Lord sits down perhaps he would clarify one point. I understood that the full name of the Nazi Party was the National Socialist Party. Was that not the case?
Lord Molloy: Of course it was the case. The Nazis lied about everything. Even their title was a lie, was it not? They lied about my nation, did they not? They lied about Europe. They lied about the Jews, did they not? Everything was a lie. Does not the noble Lord agree with that or does he believe that sometimes they were in fact what they said they were? That is a matter for his conscience. My conscience knows that in 1936 the British trade union movement marched against a Right-wing fascist party in this country. We marched in the East End of London. We wanted to make the
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British people understand how passionately opposed we were to every principle—if such they may be called—that upheld the Fascist movement.
I deeply regret that the harassment of Jews by Fascists causes a smile to appear on the face of the noble Lord. I find it very distasteful. I am very proud to have spoken out againt the Nazis of Germany when there were a number of Right-wing people in this country who tried to imitate them. British trade unions, particularly those in Wales—
Lord Campbell of Alloway: If I may—
Lord Molloy: Just a moment. British trade unions —dockworkers, coalminers and steelworkers—marched to London to oppose the principles of Nazism which some people were trying to advance in this nation of ours. I am very proud that we did. I am very proud that we won.
Lord Campbell of Alloway: I rise only in the hope that we can cool the temperature of this debate and return to the principles of the very important measure which we ought to be discussing. The charge of harassment so far as trade unions are concerned against the party to which I belong, repeated I believe six times by the noble Lord, Lord Molloy, is not a charge to which I plead guilty. I am one of those who believe that one of the reasons why the Conservative administration subsists today is the trade unions' efforts.
Lord Renton: I hope that my old friend the noble Lord, Lord Molloy, will not take it amiss if I return to the amendments. However, before I do so, perhaps he would just allow me to follow up something that my noble friend Lord Campbell of Alloway has just said and remind him that in our election manifestoes of 1979, 1983 and 1987 we gave a very clear and good forecast of what we intended to do to modernise trade union legislation, and indeed to ensure that an element of real democracy was brought into that legislation in the sense of restoring to union members the power which should belong to them over the decisions taken in their name. If the noble Lords want to have the most recent example of that, no doubt over the weekend he will have heard of the decision, taken by ballot, of the National Union of Mineworkers to end the overtime ban which Mr. Arthur Scargill, and other trade union leaders no doubt, wanted to continue.
If I may now return to the amendments, I have to confess that although I was in the Chamber on Friday I did not pick up the amendments that by then had been tabled and did not see these amendments until this afternoon. That of course is my own fault. However, having seen the amendments perhaps I may make a suggestion which I hope will help my noble friends on the Front Bench in the future. Plainly, when one gets down to it, two of the amendments, Amendments Nos. 4 and 5, replace the two existing subsections, subsections (2) and (3), that are in the Bill; but they are wrapped up and presented in such a way that a slow old mind like mine takes a few minutes to understand exactly what has happened.

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Let us therefore realise that we are now discussing two new subsections as well as the amendment to subsection (1) and indeed a very small amendment to subection (4). It is only a matter of presentation and of assisting Members of the Committee. I am grateful to my noble friend Lord Campbell of Alloway for his exposition of the effects of Clause I and of these amendments as he sees them. He tried to involve me in an elaboration of the ejusdem generic rule for the benefit of the Chamber. However, I am afraid that I must disappoint him because I think that his explanation was quite sufficient.
Clause 1 is surely fundamental. If we are to have trade union democracy we must make sure that the members have the right of ballot before striking—and striking is very serious, not only for the country but perhaps especially for individual members. If we are to have a provision of that kind it is only right that we should have the only sanction that is effective in legislation of this kind—resort to the courts.
Having considered new subsections (2) and (3), I prefer their drafting to that of their predecessors. It puts the matter perfectly plainly. There is no need for me to elaborate.
I tried as hard as I could to follow the rapid speech of the noble Lord, Lord Wedderburn, who always speaks with great knowledge of the law. However, I did not understand how two of his points fitted into the amendments. He said that the flow of ideas between management and trade union members that is of such great benefit very often to management and to the concern, whether it be public or private, in which the people are working should be allowed to continue. This flow of ideas has depended until now, and will depend in future, upon the good relations between management and the men and women in the trade unions. I cannot think that it would make for had relations if we had a provision whereby before vital decisions are taken the men shall be consulted. We have heard it said so often that before employers make important changes that affect their workforce there should be consultation. We are writing into this clause that there should be consultation with the workforce.
Lord Wedderburn of Charlton: I am obliged to the noble Lord. I agree very much with some of the points that he has just made. The example that I gave involved a different question. What sort of order would the court make when approached under these amendments in the case that he repeated? Would the court order the men to work, the trade union to make them work or the trade union to make them think? What sort of orders will be put forward?
Lord Renton: I hope that I am not begging the question that the noble Lord has quite rightly put when I say that the nature of the order must depend upon the circumstances. It must depend upon, for example, the distinction that my noble friend made: an actual breach of contract or an inducement to breach of contract. It must depend upon that to some extent and the court can take cognisance of that. There is no problem there.
Lord Wedderburn of Charlton: Hear, hear!
Lord Renton: However, what has that to do with impeding the flow of ideas? I do not understand.
The noble Lord also said that we were asking trade union officials to be police. That is something that Lord Devlin some 22 years ago in a most interesting and valuable report quite rightly said that the trade union official should not be expected to do. But there is nothing about that here. There is nothing that arises here in the nature of their being turned into police. It could be said that implicit in the clause is that the trade union official shall not become an agent provocateur: but that is an entirely different situation.
I do not wish to weary Members of the Committee with the various points that—so far as I could glean them because he spoke so fast—the noble Lord, Lord Wedderburn, made. I simply return to this point. This clause, and these amendments to it, are fundamental to trade union democracy. Fundamental to this application of trade union democracy is the right of effective application to the court and effective power on the part of the court to make such order as may be needed.
3.45 p.m.
Lord Sefton of Garston: I was rather intrigued by the dispute between my noble friend Lord Molloy and other Members of the Committee. It seems to me that my noble friend Lord Molloy tried as best he could to establish a principle connected with this amendment. The principle was that the amendments and this clause deal only with trade unions. I do not think that anybody on the other side of the Chamber, any employer in this country, or any student of history over the past 150 years, will not accept that the trade union movement has been a very essential part in maintaining the stability of our infrastructure. If anybody disputes that, they should be honest. They should stand up and say so.
If they do not dispute that, then certain logical matters follow. There are two instances in the history of this country that stand out quite clearly in my mind. I am old enough to remember both of them. One was the general strike of 1926; and the other was the last great war, and to some extent—although I do not remember that so much—the First World War. This country was protected from what could have been a revolutionary situation in the last war and in 1926. We had a well-established, recognised trade union movement that organised the working class.
When the issue became the internecine battle between the working class and the employing class—let no one forget it, in particular those who were smiling and besmirching their faces when reference was made to the trade union movement's fight against Fascism—this country, a Tory Government, and the employing classes of this country, were thanking God for the existence of an organised trade union movement that had for some of us become part of the establishment.
The principle that the noble Lord, Lord Molloy, was trying to point out was that nothing in this clause deals with what, in the First World War, was called

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the shop steward movement; nor does it deal with the same movement's actions in the general strike; nor does it deal with the shop steward movement that nearly wrecked the trade union movement in this country during the last war.
Nowhere does the clause, so far as I can see, propose any action or give anyone redress in the courts against an organised movement which is not registered as a trade union. Thus we arrive at this situation. If the Bill is to go ahead without those references, it will put a premium on people in our society who are coming to the view that the establishment does not meet their needs for a decent society and therefore a plague on both your houses—the trade union movement, and the employing class and Parliament.
I ask the Committee not to be misled. Within our society there are movements which want to disrupt society. It was Karl Marx who said that the trade union movement would be the bastion and the defender of a capitalist society. That was what he meant.
Let me conclude by asking the Government to think again. Over the years and throughout the development of our kind of industrial society, the trade unions have had a stabilising effect on society. I see that the Minister on the Front Bench is amused by that. But pushing them too far will break the loyalty that exists between the working class in our society and the trade union movement. If we arrive at that situation, it bodes very ill for the future of our nation.
One simple question was asked by my noble friend Lord Molloy. Will the Bill be brought into effect if an unofficial strike is called in a certain factory by people who are not trade unionists? Will the Bill act against them, or will it not? That is a simple, straight question and within it is contained a very important principle. I believe that the Government have set out on this course without thinking it through properly. They have set out with prejudices against the trade union movement. By and large, the Government want to return to what they consider to be the halcyon days when the poor man was at his garden gate; they want to make damn sure that he stays there.
Lord Rochester: At Second Reading I said that my noble friends and I would consider the main provisions of the Bill on their merits. As has already been said, the principle underlying Clause 1 is that individual union members should be enabled to take legal action to restrain their union from authorising or endorsing industrial action which has not been supported by ballot.
In the debate on the Green Paper initiated by the noble Lord, Lord Boyd-Carpenter, last April, I said that we sympathised with the view that such a right should be seen as a natural development of those already accorded to employers, to customers and to suppliers under the 1984 Act. I start, therefore, with a predisposition to support what the Government have in mind in this instance. But, as the noble Lord, Lord Wedderburn, has said, it was only last Thursday that the Government tabled a whole series
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of new amendments, of which Amendments Nos. 1 and 4 are two. I therefore find myself in a quandary. In my view, it would have been preferable—instead of obliging the Committee to accept or reject these amendments today—if the Government had given us a little more time in which to form a considered view upon them.
Lord Trefgarne: I am very much obliged to the noble Lord, Lord Wedderburn, for his considered intervention with regard to the amendment and indeed to other noble Lords who have spoken. The noble Lord, Lord Wedderburn, is a considerable practitioner in this area, but I fear that it sometimes is the case that experienced practitioners—I dare say that I have done this myself in those few areas where I have any expertise at all—have fallen into the trap of failing to see the wood for the trees. The basic thrust of what is proposed in the Bill (amended as I now suggest by what is before your Lordships) is that there should be no industrial action without a ballot. That is to say that trade unions who seek to persuade their members to take industrial action of whatever kind should first ascertain their views. The corollary, if I am to believe noble Lords opposite, is that there may be occasions when trade unions would like to induce their members to take industrial action, maybe against their views or certainly without ascertaining their views; and that that is desirable. I do not agree.
The noble Lord went on to say that there might be some difficulty in defining what is industrial action. He referred to some difficulty about the flow of ideas. If, for example, the flow of ideas dried up, would that constitute industrial action? I suppose it might, but that would have to be determined by the courts and not be me. That is exactly why we have to have a provision that the appropriate court is consulted when there is difficulty. It is no good just expressing the pious hope that unions will consult their members before inviting them to take industrial action. We have to write into the legislation a provision for enforcing it by reference to the appropriate courts.
The noble Lord, Lord Wedderburn, asks about the tests in Section 10(3) of the 1984 Act. They are designed to achieve the same ends as those in Clause 2(3) of the Bill and the Government are persuaded that that is what is achieved. Indeed the Bill does not fundamentally restructure Sections 10 and 11 of the 1984 Act as he suggested. They continue to require a ballot only to preserve immunity in tort. The Bill requires a ballot of those who are likely to be induced to take part in industrial action.
I touch on the point made, if I may say so, at some length by the noble Lord, Lord Molloy, and, at equal length, by the noble Lord, Lord Sefton, about the freedom of individuals to withdraw their labour. Of course, that freedom is not affected by the Bill. Clause 1 requires a ballot where a trade union organises official action. It in no way diminishes the rights of individuals as noble Lords may have feared. All that reference to the Nazis before the war is not appropriate in this case.
Lord Sefton of Garston: I am sorry if I am being long winded, but that was not the question that was posed.
Baroness Phillips: Exactly.
Lord Sefton of Garston: The question posed was quite simple. The amendment deals only with trade unions. If a majority of people employed by a certain individual organise themselves but do not become a trade union, can the Bill be used against them?
Lord Trefgarne: The noble Lord answered that question in the first sentence that he uttered. The Bill relates to the actions of trade unions not to the actions of individuals. In respect of this amendment the basic proposition that I bring before the Committee is that no one should be induced by his union to take industrial action unless his views have first been determined. I believe that to be a wholly unobjectionable proposition. I invite the Committee's agreement to it.
4 p.m.
Lord Molloy: Before the noble Lord sits down, will he try to understand clearly that many people have suffered from anti-trade unionists within the trade union movement; the extremists. What will happen when members of a trade union are induced to try to take industrial action by the actions of an expelled member who has been an extremist? Will they then be supported by the legislation? What will be the position if an expelled extremist trade unionist induces members of the union to take action which cannot be regarded as trade union action? Is it right that this Bill will not apply to those extremists!
Lord Trefgarne: I repeat that the proposition is that no member of a trade union should be invited or induced to take industrial action unless his views have first been determined. I do not believe that the noble Lord's question arises from that simple proposition. I again invite the Committee's agreement to my amendment.
On Question, amendment agreed to.
[Amendment No. 2 not moved.]
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 3:
Page 1, line 16, after ("may") insert ("on giving no less than three days notice to the trade union save where the court gives leave for shorter notice").
The noble Baroness said: This is a simple amendment. I do not wish to add to the excellent arguments put forward by my noble friend Lord Wedderburn in dealing with Clause 1. The Committee knows the feeling of Members on this side about the clause. The Bill as it stands allows a member of a trade union to apply to the court for an order if he believes that an attempt is being made to induce him to take action in defiance of what will be the law if the Bill is passed. In tabling the amendment we are seeking to ensure that the union has no less than three days' notice of the intention so to do. We believe that notice to be good and reasonable. The
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union has a right to know in advance that an application is being made to the court. Three days seems to be a reasonable, if rather short, period to allow, and the amendment proceeds to state:
"save where the court gives leave for shorter notice".
I hope that the Government will consider this to be a reasonable amendment and will accept it. It would be most unfortunate that a member should have access to the courts without first indicating to the union that that was being done. The union could then investigate and perhaps put matters right before the case came before the court. I commend this reasonable amendment to the Committee.
Lord Campbell of Alloway: I should have liked to be able to support the amendment, because its sentiments are reasonable. It accepts that the court can shorten the notice. My knowledge is at one remove, unlike that of the noble Baroness. I have appeared only for employers and trade unions in courts and have not had the privilege of being a distinguished trade union official. However, having made that concession, I fear that this amendment could give rise to victimisation and to pressure being put on the individual. I speak personally in saying that I find it difficult to support the amendment.
The Earl of Dundee: I am grateful to the noble Baroness for giving her explanation of the amendment. I agree with my noble friend Lord Campbell of Alloway that the sentiments contained in it are reasonable. From the terms of Clause 22 of the Bill it is apparent that the Government believe that, on an application under Clause 1, the court needs the power of ex parte injunctions and to grant such interlocutory relief—which in Scotland would be an interim order—as it considers appropriate pending the full trial of the action. I do not believe that there is any reason to put a restriction on the ability of the court in respect of its entirely proper discretion to grant relief on, for example, an ex parte application where it deems it right to do so.
If a member seeks an order from the court under Clause 1, he must establish a number of facts concerning the inducement, or possible inducement, by his union without a proper ballot of breach or interference with employment contracts. For example, he must show that that has happened, or is in prospect, and that he was, or should have been, accorded entitlement to vote in any such proper ballot. In the circumstances of a strike, or pending strike, it may be vital that the union member can activate his right to seek a court order with the minimum possible delay. In deciding whether to award interlocutory relief, the courts weigh the strength of the case before them and the balance of convenience between the two parties concerned.
It is possible that in an action under Clause 1, heard on an ex parte basis, the court will decide that the applicant had not made a sufficient case for it to issue an injunction against the union. There is no need to impose, or any justification for imposing, any special requirement in terms of notifying the union of an intention to apply to the court or of an application to the court. The Government have faith in the ability of the courts to do their job properly.

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The amendment tabled by the noble Baroness appears to attempt to put an arbitrary figure of three days' notice into effect but then undermines that by providing that the court may somehow give leave for a shorter period to apply. Is it seriously intended that an applicant should go to the court especially to obtain leave for a shorter period to apply? That would be a rather convoluted and contradictory process. In view of the reasons that I have given, I wonder whether the noble Baroness will see fit to withdraw her amendment.
Lord Wedderburn of Charlton: Before the Minister sits down I should like to clarify one point. I understood him to say that a member would obtain an order—as it is called in Scotland and rather more sensibly so than an "injunction"—if he showed an actual threatened inducement to breach his contract or an inducement to him to interfere with his contract. I wonder whether I heard the Minister correctly because, when speaking to the last amendment, his noble friend took a long time to tell the Committee that it would no longer be necessary to prove such legal matters. One would merely need to show industrial action in which he had been induced to take part. Will the Minister help as regards that point? Is it not the case that remedies will flow from the old "legalisms", as they have been called, or from the new language?
The Earl of Dundee: I am grateful to the noble Lord for asking that question. The position will be that the member must convince the court that there has been an irregularity which was to induce members to behave in a way which is not permitted without a proper ballot.
Baroness Turner of Camden: I do not intend to press the amendment at this stage.. However, I must say that I am disappointed with the response of the noble Earl. In the real world it often happens that there may be a local action where a member feels that he is being induced to take part in a dispute at local level. The National Executive Council may know nothing about that matter. If he can push off to the court and there seek an injunction or relief without first going to the union, he may be involving himself and the public purse in quite unnecessary expenditure of time and money. If I have read the Bill correctly, it appears that individual members will have access to public funds in respect of some issues. On the other hand, if he had first gone to the union and given notice, a court case might not have been necessary because the union might have brought its activities into line with the law. For that reason I believe that it would have been reasonable to have accepted the three days' notice that we have suggested. In view of the fact that the Minister does not feel able to do so, I shall withdraw the amendment. However, we may consider the matter further at the Report stage. Those were the reasons that I advanced.
Amendment, by leave, withdrawn.
Lord Trefgarne Lord Trefgarne moved Amendment No. 4:
Page 2, line I, leave out from ("satisfied") to end of line 13 and insert—
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("(a) that a trade union has, without the support of a ballot, authorised or endorsed any industrial action;

(b) that (whether or not the action has already commenced) members of the union are likely to be, or have been, induced by the union to take part or to continue to take part in that action; and

(c) that the members of the union who are likely to be, or have been, so induced include the applicant,

the court shall make such order as it considers appropriate for requiring the union to take steps (including the withdrawal of any relevant authorisation or endorsement) for ensuring that there is no, or no further inducement of members of the union to take part or to continue to take part in that action and that no such member engages in any conduct after the making of the order by virtue of having been induced before the making of the order to take part or to continue to take part in the action.").
The noble Lord said: I spoke to this amendment earlier. I beg to move.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 5:
Page 2, line 15, leave out from ("endorsed") to ("is") in line 28 and insert ("any industrial action if there has been—

(a) such an authorisation or endorsement of an act which has been done for inducing any member of the union to take part or to continue to take part in that action; or

(b) such an authorisation of any proposed act for inducing such a member to take part or to continue to take part in that action,

as requires that member, or if the act were done would require that member, to be treated for the purposes of this section as induced by the union to take part or, as the case may be, to continue to take part in that action.
(3A) For the purposes of this section a person shall be treated as induced by a trade union to take part or to continue to take part in any industrial action if he is subjected to such an inducement to take part or to continue to take part in that action as is or (if it constituted an inducement to break a contract of employment or to interfere with the performance of such a contract) would be taken, for the purposes of any such proceedings as are mentioned in subsection (2) of section 15 of the 1982 Act (liability of unions for official action), to have been done by the union.
(4) for the purposes of an application under this section an authorisation or endorsement by a trade union of any industrial action").
The noble Lord said: As before, I have already spoken to this amendment. I beg to move.
4.15 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved, as an amendment to Amendment No. 5, Amendment No. 6:
Subsection (3A), at end insert ("provided that the act has not been repudiated in accordance with that section by the time the application is made.").
The noble Lord said: It is important to have the procedure right and I apologise for hesitating as to the right procedure. Unless the Minister has any objection, with the leave of the Committee, I will move the amendment and also address a few words which are interlinked with the clause.
The particular problem which is envisaged in the amendment may be put in this way but in view of what the noble Lord, Lord Renton, said, I am trying to meet his point by making my points rapidly while speaking slowly. I shall do my best to please him in that regard.
Lord Renton: That is an admirable way for the noble Lord to proceed.
Lord Wedderburn of Charlton: I am much obliged and hope that we can reach agreement on some later points in the same way.
Two matters puzzle those of us on this side of the Committee, and the Minister may care to help us on them at a convenient point. First, we always feel that it is very odd for us to be lectured about ballots. The British Labour Movement has been having more ballots during the last century than this Government have had hot dinners. The British Labour Movement knows about ballots and is far from being opposed to them. However, it has ballots in particular forms. The issue before the Committee today is not a Second Reading point of principle on ballots but is directed to this form of ballot on these new rules which were pin down last Thursday. You cannot appeal to some general principle of being in favour of ballots and say, as the Minister and other members of the Committee appear to be doing, that the amendments are therefore correct. It is rather like saying that you are against sin and then saying that that proves that you should not drink particular types of drink. There would be disagreement about the second and not much disagreement—in most places anyway—about the first.
The Green Paper, which is relevant to the amendment, stated that union members should have a new form of right in respect of ballots in regard to industrial action, but it also stated:
"They should have a right to a ballot being called to take industrial action in breach of the contract of employment".
Of course, that is what the Green Paper was about. That is why last Thursday's amendments constitute a new Bill, because they run away from that point which workers can understand and managers can understand. This amendment asks the question: why do the Government, as they did in the old Bill and do in these new amendments in a new form, tie in union responsibility for inducements to the principles laid down in Section 15 of the 1982 Act? That section writes a new code of vicarious responsibility for trade unions different from the common law tests. The 1982 Act laid down the people for whom and when the union would be liable, and that definition was different from the normal rules of law. That test being in operation, the Government apply it here so that the general secretary's statements, if they are a likely although an ineffective inducement, will always be binding on the union whereas a shop steward's statements will be binding only if he has authority. I ask the Government whether it is clear that the principles of repudiation in Section 15 are also included in the new language of the Government's amendment?
This is a matter of no little importance because Section 15 of the 1982 Act allows a certain type of act and statement to be repudiated by those in certain categories; for example, senior officers and the National Executive Committee. It is not abundantly clear that the wording of the first part of Amendment No. 5 incorporates that notion. I appreciate that it is not clear that it does not do so but I wonder whether or not the Minister would be happier with this amendment if it were made quite clear that that were so.
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The wording in the amendment to which this amendment is directed—Amendment No. 5— adds to the strangeness of the matter. I could not speak to it before and will do so now. The difficulties amount to this: that people are entitled to know when they ought to have a ballot under the law. Leave it to the rule book and they can decide for themselves. That is quite a sensible thing to do for the most part. However, if a law is passed, it must be made clear. As we have seen in the first amendment, it is certainly not clear and there is an added obscurity here because subsection (3A) refers to a person being treated as induced by a trade union to take part in the action if he is "subjected to an inducement". Why does that not read, "If he is induced"? There must be a difference between "Subjected to an inducement" and "induced" otherwise it would have read "induced". The Government are very cautious in many ways but they also like economy and do not like to waste print; it is bad for business. I suspect and some of my noble friends suspect that this is meant to cover a case—remember that the inducement may be ineffective—where the member is not reached in any real way. I give an example. If the union issues a pamphlet saying that members should not work without safety helmets on constructions sites where two people are killed every week, does there have to be a ballot before they can issue the pamphlet or before the workers read it? Are they "subjected to an inducement"? The wording is very strange. I am sure that the Minister will explain it. I raise the point with him in moving the amendment, which I beg to move.
Lord Renton: At first sight, this amendment has something to commend it because obviously nobody wants to go to the trouble, expense and delay of court proceedings if it is found that there have been second thoughts by those in the union who were responsible for the act complained of. It is worth noting that in the original version of subsection (3) which we arc replacing with subsection (5) the possibility of repudiation is mentioned; that is to say, on page 2, line 20, it states:
"would fall to be so taken if it were done without being repudiated for the purposes of that section before being done".
Therefore, the noble Lord, Lord Wedderburn, has a point which requires very careful and earnest consideration.
However, there is more to it than appears on the face of this amendment. In particular, it would be important to know before accepting this amendment or something on these lines at what stage the repudiation has to take place. If the repudiation takes place very soon after the act complained of, then that would be what we have in mind. It would make court proceedings quite unnecessary. On the other hand, if the repudiation does not take place until the court is just about to make an order saying that the act complained of should not have taken place, that is an entirely different matter. As I have brought that point to the attention of the noble Lord, Lord Wedderburn, he may care to explain his intentions before my noble friend on the Front Bench replies.
There is a further uncertainty that arises on this amendment. It is rather important to know by whom the repudiation has to be made. The clear case would

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be if it were made by the person who did the act complained of; made the inducement, or whatever it may be. That would be the straightforward case. Of course, if it were the resolution of the management committee of the union, the executive committee, the responsible governing body of the union, that would be a plain case where the original act complained of is by that body and repudiation is made by it.
I hope I am not being oversubtle if I suggest that repudiation could be by a relatively minor official of the union and that his colleagues on the executive committee of the union may not agree with it. That would be an entirely false situation. Therefore, that is another point to which I invite the attention of the noble Lord, Lord Wedderburn. However, I consider the question of repudiation should seriously engage our attention.
Lord Wedderburn of Charlton: Before the noble Lord sits down—I hope I have managed to intervene before he does so—is he aware that there are two reasons why I hope that he will join us in this amendment? First, coming at the end of new subsection (3A), as it would, it ties in with Section 15 of the 1982 Act. That Act has clear and rigid rules about who can repudiate and when. Obviously those rules would apply. Secondly, the amendment is clear about the time; namely, that repudiation has to take place by the time the application is made to the court. I hope that in the light of those two points the noble Lord will join us in asking his noble friend to treat this amendment seriously.
Lord Renton: Subject to what my noble friend may say, I consider that the noble Lord has given answers to each of the questions; and they may be the right answers.
Lord Trefgarne: Very likely they may be. I hope that during the course of my few remarks I can persuade the Committee, in particular the noble Lord, Lord Wedderburn, that the amendment is unnecessary and would add nothing of substance to the effect of the clause.
The clause gives a union member the right to apply to the court if his union has induced, or is likely to induce, him and other members to take industrial action without proper secret ballot. It is clearly necessary to have a definition of what constitutes an act of inducement by the union, and Clause I, as the noble Lord, Lord Wedderburn, said, is therefore linked for this purpose with the provisions of Section 15 of the 1982 Act.
Section 15 sets out, in subsection (3), the circumstances in which an act is to be taken as authorised or endorsed by a union. Subsection (4)(b) makes clear that if an act is repudiated by the principal executive committee or by the president or general secretary it shall not be taken to have been authorised or endorsed.
Subsections (5) and (6) lay down further and proper conditions that must be satisfied to establish whether an act is to be treated as repudiated.
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The precise detail of Section 15 is a somewhat technical matter but the basic point is a simple one. If a union repudiates an act, in accordance with the provisions of that section the member will not have grounds for applying to the court under Clause 1 of the Bill. I believe, therefore, that the amendment, while no doubt well-meaning, in fact adds nothing to the effects of the clause, and I hope that the noble Lord will withdraw it.
Lord Wedderburn of Charlton: I still think that there is an ambiguity, but I am so pleased to be on common ground with the noble Lord about being well-meaning that I ask leave to withdraw the amendment.
Amendment to Amendment No. 5, by leave, withdrawn.
On Question, Amendment No. 5 agreed to.
The Earl of Dundee The Earl of Dundee moved Amendment No. 7:
Page 2, line 30, leave out from ("of) to end of line 32 and insert ("that action:").
The noble Earl said: With the leave of the Committee I shall speak also to Amendments Nos. 8, 9 and 10. We have already discussed the amendment which extends the scope of the clause to cover any industrial action, and these amendments are consequential. They are designed to ensure that the balloting requirements of the clause are framed to cover any industrial action organised or endorsed by a trade union. I beg to move.
Lord Renton: The only point I wish to make is one that I have already made in a minor way; it relates to presentation. It seems to me that this large batch of amendments in the name of the Minister are all amendments to Clause 1. They replace a great deal of what is already in Clause 1. It would be much easier for us all to follow if, instead of their being tabled as individual amendments, we were simply asked to leave out Clause 1 and insert a new clause. We would then all know far better where we sat instead of having to put metaphorical wet towels around our heads.
Lord Wedderburn of Charlton: The degree of agreement between myself and the noble Lord, Lord Renton, is becoming quite alarming. The point that he makes is one I intended to make to the Minister. In fact, our position is that we wish not to make what I am afraid are the many points on this part of the new draft because we are not sure that we have the sticking and pasting and the details quite right. Threfore, we will come back on Report. On that basis, and partly because there is one more major issue to come in Amendment No.11, to which we have an amendment, we think that it would perhaps be the view of the Committee that we concentrate now on what we think is clear to us and that we should come back to the issues in Amendments Nos. 7, 8, 9 and 10 when we reach Report stage.
The Earl of Dundee: Perhaps I should say by way of reassurance to the noble Lord, Lord Wedderburn, and my noble friend Lord Renton that while I have sympathy with the points they have made I hope that

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when we see the reprints of the Bill incorporating the amendment we will be less unclear, or clearer, as the case may be.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 8:
Page 2, leave out lines 40 to 43 and insert—

("(i) in the case of action which consists in a strike, to a question (however framed) which requires the person answering it to say, by answering "Yes" or "No", whether he is prepared to take part or, as the case may be, to continue to take part in a strike;

(ii) in the case of action which consists in action short of a strike, to a question (however framed) which requires the person answering it to say, by answering "Yes" or "No", whether he is prepared to take part or, as the case may be, to continue to take part in such action;

(iii) in the case of action which consists in action to which both of the questions mentioned in sub-paragraphs (i) and (ii) above are applicable, to the questions or questions applicable to that part of the action in which the applicant is likely to be, or has been, induced to take part or to continue to take part;

and").
The noble Lord said: We have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 9:
Page 2, line 44, leave out from ("that") to ("at") in line 47 and insert ("industrial action and in the case of any action which has been authorised rather than endorsed, the commencement of the action occurred or is likely to occur"),
The noble Lord said: My noble friend has already spoken to this amendment. With permission, I should like to move Amendments Nos. 9 and 10 together.
The Principal Deputy Chairman of Committee (Baroness Serota): As we are at the Committee stage of the Bill the amendments will have to be moved separately. The question is that Amendment No. 9 be agreed to.
On Question, amendment agreed to.
The Earl of Dundee The Earl of Dundee moved Amendment No. 10:
Page 2, line 48, leave out from ("date") to end of line 6 on page 3.
The noble Earl said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
The Principal Deputy Chairman of Committees: In calling Amendment No. 11 I should point out to the Committee that if this amendment is agreed to I cannot call Amendment No. 13.
Lord Trefgarne Lord Trefgarne moved Amendment No. 11:
Page 3, line 10, leave out from ("reason") to ("nothing") in line 23 and insert—
(' (5A) In this section—
"date of the ballot" has the same meaning as in Part II of the 1984 Act;
"industrial action" means any strike or other industrial action by persons employed under contracts of employment;
"strike" means any concerted stoppage of work.
(5B)").
The noble Lord said: I beg to move.
4.30 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved, as an amendment to Amendment No. 11, Amendment No. 12:
Line 7, leave out ("under") and insert ("in breach of their").
The noble Lord said: I feel a certain element of common struggle to get through this in the right way. I hope that we have now reached the point of Amendment No. 12 as an amendment to Amendment No. 11. I fear that what I have to say will break the thin crust of common agreement which was building itself.
This is a key matter. It is expressed, having taken out, I understand—with great respect to the noble Earl—the test as to when a court will enforce a ballot or an order in respect of any conduct, in a very draconian way. We shall come back to that at Report stage. The test of deciding whether it is a tort of inducing a breach of contract or inducing interference was taken out and replaced by whether it is likely to be an inducement, effective or ineffective, to members to take part in industrial action. That would be a strike or industrial action. I say no more about the definition of "strike" because it is not that which will cause the difficulty. In the discussions within my own party and in the Labour movement there has always been great clarity in debates and ballots about strikes because people know roughly what is involved.
In the British system of law it involves a breach of the contract of employment. Under a Bill of this kind it is important for the individual worker, whether he is a trade union member or not, to know. Whether there is to be a ballot or not will affect the unionist and non-unionist. The minority or majority of union members, the union, and of course the employer, will all want to know.
The common-law test was for the most part clear. I say "for the most part" because, as the Minister has said, the issue was of interference with contracts of employment. That had some obscurity. To stand on this ground if one is having a Bill of this kind has always seemed to us to be reasonable. Where people were going to do something they were not legally entitled to do, one could expect some kind of procedure or penalty. But where all were going to do something they are legally entitled to do, then other people—third parties and persona in the drama of industrial relations—really did not have much right to ask that they go through procedures to do what they were entitled to do.
That was, and is, different from a breach of the employment contract which, I readily admit, most forms of industrial action are. It is sometimes said that only abstention from overtime when it is voluntary rather than obligatory—a clear case of, in common parlance, industrial action—is not a breach of the contract of employment. There are other instances which are not clear. What we say in this amendment is that the breach of the workers' obligations should be the test of whether the procedure should be gone through. If that is not so, then not only do the workers not know where they stand, but the union, the employer, the non-unionist and the rest do not know where they stand.
In saying, "Before you decide not to take that step that you are entitled to take"—it may be not to do overtime you have been offered but are not obliged to take it—it has to be remembered that what happens on the factory floor, or perhaps today one should begin with the office desk, depends upon good will. A certain amount of good will will be contractual because there is a duty to co-operate. But there will be other species of good will which no one would regard as a contractual obligation. Everyone knows what really happens when industrial relations' difficulties arise is that people begin to withdraw co-operation. The management becomes more difficult, the worker gets more difficult. And at some point the line of breach of contract is perhaps crossed.
Until that point is reached it is quite ludicrous to say that every form of industrial action must be subject to a ballot—every time someone from the office floor says, "We are fed up with this macho management and we are going to withdraw a bit of good will," and the shop steward says, "I think you have a point." It is necessary to remember that he has only to induce them ineffectively; so it does not matter if they are already convinced. The Minister did not speak about ineffective inducement; I hope, one day, he will. I suspect that "ineffective inducements" are to cover the situation where workers were quite clear from the start what they intended to do. Therefore the statements from the union made no difference.
In the example I have given, does the Minister really think that that should to be a case where either the union member—let us also remember that this occurs in Schedule 3—or the employer can demand a ballot on pain, in the first case, of an order of the court of unknown proportions? Presumably it will be an order of conduct that good will is restored. I believe that judges would be hard put to it to frame such an order. I understand the point made by the noble Lord, Lord Renton, that each order is suited to the circumstances of the case. I ask him whether he can really imagine the High Court framing an order that tells the trade union, as would be necesseary under this Bill, to ensure that its members restore good will. There is also a principle of the High Court that it will not make an order which is brutum fulmen and which it cannot supervise. I should have thought that was pre-eminently within that category.
It sounds great to say, "Let us get rid of old legalisms." If we say it from this side of the Committee we are always called law breakers; if it is said from the other side, that is called common sense. It sounds great here to say, "Let us get rid of all those old law books inducing breach of contract. That was just something that people wrote about years ago. Let us get on to every form of industrial action."
The argument that it is needed because the state of the statute book is such that every form of industrial action—although the extent is not very clear —displaces the jurisdiction of the industrial tribunals in a case of dismissal which is alleged to be unfair, really beggars belief. First of all the Government can change that position if they do not like it. I can assure the Minister that we would.
Secondly, the Minister knows as well as I that "strike" and "industrial action" are defined differently for different purposes in different parts of the employment legislation. In terms of the continuity of the employment of employees, it is defined in Schedule 13, paragraph 24 (which I am sure is rarely absent from the Minister's mind) in a way quite different from anywhere else. In Section II of the 1984 Act "strike" is defined differently. This is not uncommon in systems of labour law. But the definitions of "strike" and "industrial action" tend to vary from one place to another. Not only is it rather pointless to quote Faust v. Power Packing in 1983 as though it proved the case here, but also, in parenthesis, if the Minister looks at the case of Express and Star Limited v. Bunday in 1987 he will find the matter put differently. Those comparisons can be made on Report.
There is no case there by appealing to precedent. This is the point: there is an attempt to win an argument. I will put it in the nicest possible way and with no aggravation meant. It is an attempt to win the argument lost in 1984. The Government are bringing back through the window what was kicked out of the front door in 1984. In that year they went through the whole Committee process in another place trying to have a ballot provision tied to interference with employment without breach. The Government got into such a muddle that on 2nd April 1984 at col. 683 of the Official Report, the Minister, Mr. Gummer, came to the House at Report stage and capitulated. He introduced breach of contract into both of the questions.
I do not particularly like the breach of contract test, but if you are going to have a test then have a test that people can understand. Breach of contract of employment is a test that people can understand. It has its difficulties in application, but we know where we are. The only alternative is to say, as the Government are planning here, that all forms of industrial action are covered. Are they surprised that we are rather suspicious when they cannot tell us anything other than that?
I put an example to the Minister, and what does he tell me? He tells me that the courts will have to decide. When you ask the Government whether this or that is industrial action, we never get, as we never got in another place, a clear answer. My honourable and right honourable friends put many examples of overtime bans, work-to-rule, thinking action and working without enthusiasm. They asked which of those would be industrial action and when would they be industrial action. The Government always replied that the courts would have to decide. The Minister has given that reply again today.
That is not good enough. Citizens of a free country have a right to know when it is that they can band together, and discuss something and decide to do something which is lawful. The Minister has made it quite clear that what is entailed in industrial action will not necessarily be unlawful. All of this is aimed at Schedule 3. The Minister is saying that in order to impose this very specific type of regulation the employer will be able to enforce an order or an injunction in any form of industrial action. That is the more serious aspect of the matter.
The Government have tied the two together and they are trying to prevent workers, through their trades unions, jointly discussing industrial problems and taking action which is not in breach of any obligation that they have assumed. In a free society that is improper. If they break contracts of employment, I see the argument and we can argue about the form; but with this sort of definition of industrial action the Government are going over the top. I beg to move.
Lord Renton: I am afraid that I cannot support the noble Lord on this amendment. In the first place he ought to consider the drafting a little further, if I might suggest it. If this amendment is accepted, instead of,
"strike or other industrial action by persons employed under contracts of employment."
which is how it reads at the moment, we would have,
"any strike or other industrial action by persons employed in breach of contracts of employment".
That is a rather strange proposition. It might have been better if the amendment had been drafted in this way: "strike or other industrial action by employed persons in breach of their contracts of employment". That would have put it right, but that is not what we have before us. So much for the drafting, I hope I have been helpful and constructive for once.
Let us go to the substance of the matter. The noble Lord, Lord Wedderburn, has conceded that voluntary overtime is generally not part of a contract of employment. In its terms it cannot be part of a contract of employment because it is voluntary. If industrial action—let us leave aside the word "strike"—is suggested by the union to stop voluntary overtime, one wonders where the rights of individual workers will be if they want to continue with voluntary overtime.
Voluntary overtime often has the advantage of very good wages of time and a half or weekend working at double time. Therefore the individual worker who does not want to be deprived of voluntary overtime just by an order by his union might feel at a disadvantage. I must confess that I cannot think at the moment of other occasions when industrial action involves no breach of contracts of employment. A more imaginative and experienced person than myself could perhaps think of other examples. It may be that there are Members opposite who could do so. However, to accept the noble Lord's amendment, even when it has been put right in the way that I suggest, would amount to a limitation of the definition of industrial action. I cannot think that it would be in the interests of individual workers that the definition of industrial action in this context should be limited in that way.
4.45 p.m.
Lord Houghton of Sowerby: What I cannot understand is why the Government at this stage in the consideration of the Bill are seeking to loosen the meaning of the words "industrial action". The term "industrial action" is almost meaningless when one comes to examine it. It is euphemistic. It is not even a term of art. It is something which trade unions have
458
used because they have not liked the real terms that can be applied to some of the actions they are taking. My union, a public service union, did not like the word "strike". It did not like the words "working to rule". None of the things which by tradition were included in the scope of industrial action were by themselves either enough or acceptable as they stood. I am surprised that this vague phrase or term, which is not a definition, should now be incorporated in the law.
The Minister is taking refuge in a manner that we are tending to adopt in drafting our legislation: finding the most comprehensive and vaguest term and then saying that it is for the courts to decide what it means.
One of the principles of English law—and the noble Lord, Lord Renton, is surely an authority on this—is that it should be clear and unambiguous; it should do its best to say what it means. Therefore, one goes to the courts only in an extreme case or in the act of splitting words to resolve some dispute. Here it seems to me that one will have to go to the courts right way in many cases to find out the meaning of "industrial action". I have been pondering this since the beginning of the debate.
In three places in Clause 1 the Government have removed, as my noble friend Lord Wedderburn said, the test of the industrial action upon which a ballot has to be taken or a court action can be taken in default of a ballot. That is what we are talking about. This clause concerns what is to be done if a strike or other industrial action as it says is called, without a pre-strike ballot and a member wishes to stop the union in its tracks. However, we have not so far got down to what we mean by "industrial action" I thought we had made an attempt to do so in Clause 1 as it stood before amendment. The words were,
"to break their contracts of employment; or to interfere with the performance of their contracts of employment".
That is specific. Now it is to be removed. We are told in Amendment No. 11 that:
" 'industrial action' means any strike or other industrial action by persons employed under contracts of employment".
It does not say that they are to be in breach of anything. It does not say that they are in breach of their obligations, or that they propose to withdraw some of their normal duties. It says nothing. I doubt whether the unions have got close enough to the definition of "industrial action" themselves to know what it really means.
What about teachers? That is an example which comes to mind. They are not regarded as under an obligation—certainly not under contract—to perform certain duties in connection with the service of school meals. On an occasion they even decided to withdraw their voluntary services to extend to other works out of school hours—other duties which they did not regard as an obligation—and yet they are an important part of the totality of their work. That has played an important part in the decisions of the unions when they have been involved in a dispute with the employing authorities. But is that aspect included?
There are some contracts of employment, some obligations of employment, that do not include the

459
obligation of working overtime. In my time, at least in one department of state, we regarded the working of overtime as purely voluntary. It was only when voluntary means failed that the department would seek to impose such an obligation on people to do it. Those people who are voluntarily doing overtime may decide to cease to do so. The union may then say, "Let's withdraw voluntary overtime".
It is probably sufficient to withdraw something which is voluntary because of its effect on the state of the work. How does that issue stand? It seems to me that an attempt should be made to extend the tail of this kite so that we can recognise more clearly what the term means. Otherwise I think, as my noble friend pointed out, that the employer may say, "What you are proposing to do is going to be such an inconvenience to me and will have an effect on the state or work or output of production; therefore I want a ballot taken". Alternatively, a member of a union may say, "I am affected by what it is proposed to do".
I have discovered in my time that there has been a heavy involvement in overtime for the benefit of the remuneration which it brings. Indeed, in some firms or works, applicants for jobs ask whether there is any overtime, and when they are told that there is not they say, "Well, I want overtime; I shall go to a place where there is overtime". Therefore there is considerable interest in the availability of overtime in some places. Let us then suppose that the union say that they will stop it. A member may subsequently say, "This has an effect on me. I want to take proceedings. I want a ballot". All those matters provide difficulties.
It may be that the Minister will say, "How can we spell out all those hypothetical cases or examples in the legislation?" I certainly do not think that the alternative is to have no attempt whatsoever at definition. Surely the only conditions under which a ballot should be required by law—certainly action to be taken in the courts under the legislation—must be breach of contract, or breach of the performance of a contract. That seems to me to be a basis which is clear enough, because anyone can tell what is in the terms of their employment and what may interfere with their obligations under the terms of such employment. I think we should give attention to that matter.
I conclude by saying that I think that having Committee stages on Mondays has one great drawback: one does not see the important amendments until one comes to the middle of the day. That is not good enough. This is a key amendment. I cannot undertand why it is introduced at this stage of the Bill's progress. The Bill is supposed to have gone through the mincer in another place, but here we are altering it very substantially. That consideration has to be borne in mind when we are asked to deal with key amendments—this is certainly one of them—at very short notice.
Lord Renton: Before the noble Lord sits down, he may be interested, and perhaps reassured, to know that the term "industrial action" appears in Section 62 of the Employment Protection (Consolidation)
460
Act 1978, as amended by Section 9 of the Employment Act 1982. Therefore it would be wrong to say that it is no longer a statutory term. It is a statutory term, and to that extent it is a term of art.
Lord Houghton of Sowerby: I do not walk about with Acts of Parliament in my pocket all the time. That is yet another drawback of our procedural methods. Why then is it necessary to interfere with what the Government have put into the Bill, and have stuck to right through all the stages in another place? Here it is again, in Clause 1, where they propose to amend it. I ask: why?
Lord Campbell of Alloway: I shall try to deal with the point raised by the noble Lord, Lord Houghton of Sowerby. It is true that this term "industrial action" was used in a previous statute; but it is equally true, so far as I am aware—I shall be corrected, no doubt, if I am wrong—that its meaning has never been clearly defined. The nearest we ever came to a definition was that in the old Act of 1971 of an unfair industrial practice, and so forth. The answer as to why it ought not to be defined, with respect, lies in Amendment No. 1; whereas if you seek to define the phrase in the way that the noble Lord, Lord Houghton of Sowerby, suggested, you would limit it to breaches of contract. That would be far too narrow a definition. One would have to extend it beyond breaches of contract to the archaic distinction of threatening to induce interference with the performance of a contract, and that would not do.
What about picketing? Surely that is industrial action. In other words, it is safe to leave industrial action to the courts to decide as it arises, in accordance with the circumstances of each case. I am not trying to pick at the point made by the noble Lord, Lord Houghton of Sowerby, but merely to show that, however you try to define the term, such interpretation will not meet all the circumstances. This new right requires the protection of the courts. We must leave the courts to protect the right.
Lord Trefgarne: We discussed this matter at considerable length in relation to Amendment No. 1, a few minutes ago. Therefore I do not wish to labour the point. Of course the noble Lord is entitled to return to the subject, in the guise of another amendment, should he think fit.
The arguments in support of the noble Lord's amendment appear to revolve around the proposition—if I am to listen with care, as I always do, to all those who have spoken in support of the noble Lord—that industrial action can ony be defined as a breach of contract of employment. I endeavoured to explain, when I moved the earlier amendment, that it was not as simple as that. We preferred a rather wider definition. I happen to think that trade unionists are sensible people. Indeed, I am one myself. I have long been a member of a trade union and am proud to be so today. I think that trade union members are well able to understand the essential meaning of the words "industrial action".
Of course at the extremities of the definition there will be one or two occasions, such as those referred to

461
by the noble Lord, Lord Wedderburn, where it is not clear whether a proposed course represents industrial action. Frankly I cannot see that that would present any difficulty to trade unions. If they are in any doubt all they have to do is have a ballot. Then they are properly covered.
The essential proposition that we bring before the Committee in this clause, incorporated in the amendments that I have suggested today, is that there should be no industrial action save when the members have first been consulted. For the life of me I cannot see the difficulty with that proposition. In the light of those arguments and the ones deployed on the earlier amendment, I hope that the noble Lord will see tit not to press the amendment.
5 p.m.
Lord Wedderburn of Charlton: Before we reach Report I am sure the Minister, as I will, will read the debate and derive a great deal from it. First, I say to the noble Lord, Lord Renton, that I am happy with the style of the amendment, but no doubt we could discuss that later. I think that it works. Secondly, surely my noble friend Lord Houghton gave a large number of good examples of the way the failure to define—that is what it is—amounts to everything that is inconvenient to the employer, not necessarily things that are incovenient to the individual union member. That is what is so important about the link between this clause and the new Bill on employer-enforced ballots.
Industrial action is normally understood—certainly in the cases to which the noble Lords, Lord Renton and Lord Campbell, referred—to involve pressure aimed at the employer. Everything that is inconvenient to the employer will be included in the phrase "industrial action". What kind of lopsided system of industrial relations law is that supposed to be? These cries—I might almost say strangled cries —of "Leave it to the courts" or "Sensible people will know what it means on the day" are the mottoes of a slovely legislature that either does not care to get it right or wants to include everything that the Government want to include. I believe that the debate will show that the second is true.
The Government know perfectly well what they are doing; they do not want to meet the point about the teachers. They have already abolished collective bargaining for them anyway. Of course they want to catch the teacher who shows good will for a couple of weeks and with his colleagues organises sports outside the contract of his employment. The teachers then say, "Well, in view of what the employers have done, we do not think we will do that any more". They must have a ballot. It they do not the employer will obtain an injunction. Why should they have to do that? Their wives want them home. They will say, "There is that good will in the sports ground for an hour after school every day. We want to see you home". A man has a right to decide that.
A man and a woman have the right in a free society to discuss together that they will jointly not take certain action because they are not bound by contract. Why should they have to go through the Minister's ballot? This is authoritarian. It is worse
462
than authoritarian. The Minister always smiles when he does not know the answer, but the answer is that the requirement is authoritarian. To make people go through one's procedures is the first stage towards making them go to one's destination. The Government have done that with the teachers. They have shown them where the door is. It is not to collective bargaining. They have legislated that out; and so the system begins to make sense. We begin to see it for what it is.
I shall not press the amendment because we have to look at the clause as a whole; but it is an amendment which has brought out the core of the meaning of this clause and the clauses that go with it. I beg leave to withdraw the amendment.
Noble Lords: No.
The Principal Deputy Chairman of Committees: The Motion is, That the amendment be withdrawn.
Lord Trefgarne: I believe that it needs the consent of the Committee to withdraw the amendment.
The Principal Deputy Chairman of Committees: Is it the Committee's pleasure that the amendment be withdrawn?
Lord Trefgarne: No.
The Principal Deputy Chairman of Committees: The Question is, That the amendment be withdrawn. As many of that opinion will say Content?
Noble Lords: Content!
The Principal Deputy Chairman of Committees: To the contrary, Not-Content?
Noble Lords: Not-Content!
The Principal Deputy Chairman of Committees: I think that the Contents have it.
Lord Trefgarne: I believe that the correct
procedure is—I am sure that I shall be corrected if I am wrong—that if the Committee has not agreed to the withdrawal of the amendment, the Question should be, That the amendment be agreed to?
The Principal Deputy Chairman of Committees: The Question is, That the amendment be agreed to? As many of that opinion will say Content?
Noble Lords: Content!
The Principal Deputy Chairman of Committees: To the contrary, Not-Content?
Noble Lords: Not-Content!
The Principal Deputy Chairman of Committees: I think that the Not-Contents have it.
On Question, amendment to Amendment No. 11 negatived.
On Question, Amendment No. 11 agreed to.
[Amendment No. 13 not moved.]
On Question, Whether Clause 1, as amended, shall stand part of the Bill?
Lord McCarthy: We gave notice that we wished to oppose the Question, That the clause shall stand part of the Bill, because we rather suspected that we should end the day without passing any amendments to improve it. That is the case. The Government have argued throughout, in this place and in another place, that all they are doing is something which they said they would do at the time of the general election and at the time of the publication of the Green Paper. They are merely giving to trade union members that which they gave to employers in Part II of the 1984 Act—the right to stop a strike not subject to an authorised ballot under the terms of the 1984 Act.
If that were all that the Government were trying to do, and if in addition they would put in place of a clause which gave that right to union members something which they put in Part II of the 1984 Act for employers, we should not be debating the clause. We should be prepared to accept it. But the Government are putting the clause in in addition to Part II of the 1984 Act. We have always argued, and we argue still, that whether a union is entitled to a particular area of industrial action and to do something for which it is immune from action should not be left to employers. It should be left to the law or to the individual worker.
If all that the Government had done was to put in place of Part 11 of the 1984 Act provisions along those lines—for example, if they had said that the individual union member had that right in his contract of employment with the union and that the courts were able to read into the union rule book such a provision—we should have no objection to the clause. But we have objected to it. We have sought to put on the Marshalled List a series of amendments, because the closer we looked at the clause, the worse it became. The clause was bad enough when it came out of the other place, but when it was changed by the series of amendments moved this afternoon by the noble Lord, Lord Trefgarne, and when we look at the changes wrought by those amendments, I am afraid we must oppose the clause in it original form and even more in its amended form.
We have tried to put down a series of amendments which we hoped would improve the operation of the clause. None of those amendments has found favour in this place, and therefore we have a clause worse than it was when it came from the other place. My noble friend Lord Wedderburn has sought to argue how the clause creates all kinds of uncertainties, partly because of the use of vague terms such as "interference"; partly because it introduces all kind of additional concepts, such as "industrial action" and "ineffective inducement", which are undefined; and with unions told that they must take various steps which are undefined. We have tried to give
464
examples of how we feel that this vague, unsettling provision would have deleterious effect upon trade union organisation and solidarity. We have not succeeded.
All our amendments have met with the usual dichotomy of view from Members opposite that they are either unnecessary or unacceptable. If they are not unacceptable then they are unnecessary and whatever it is, it cannot be done. What the Government wish to do is to create a penumbra of doubt around the use of industrial action. As my noble friend Lord Wedderburn said, all these additional provisions will be read back into the rights of employers under the 1984 legislation as a result of the schedules. The Government want to give to trade unionists, to dissidents and to employers all kinds of vague powers to create a penumbra of doubt around the use of industrial action. For that reason we oppose this clause.
Baroness Seear: We on these Benches had originally intended to support the Government on Clause 1. However, for two reasons regretfully we find ourselves unable to do so unless the noble Lord, Lord Trefgarne, will say that he will look again at some of the controversial points which have been raised this afternoon.
As the noble Lord, Lord McCarthy, has pointed out, the Government's amendments have come very late and have given little time for consideration of matters which change this clause in certain important particulars. We are very unhappy about the Government's reaction to Amendment No. 12, which, as the noble Lord, Lord Wedderburn, explained I think very convincingly, would put a limit on trade union ability to take action quite regardless of and outside the question of contract which in our view would hamper proper trade union activity. Because of this, unless the Government say that they will give more time for consideration of government amendments and will look again at Amendment No. 12, I fear we shall have to vote against the clause standing part of the Bill.
Lord Houghton of Sowerby: I oppose this clause because the Government have widened its purpose. I do not think they are justified in doing that at this stage in the consideration of the Bill; I do not think that it is necessary.
I also want to reply to what the Minister said a few moments ago. I hope I give a fair account of what he said. It was that trade union leaders are sensible people, they are well aware of the world in which they live and work and they know quite well what industrial action is. There should be no difficulty about that, he said, but if there is, when in doubt let them take a ballot. That is not good enough. They do not know all the time what is industrial action within the law. It has not been necessary for it to be dealt with in this way before.
Moreover, the Minister must bear in mind that this controversial legislation is being thrust on the unions very much against their will. I do not go so far as my noble friend Lord Molloy in his description of the Bill; I think that that is carrying it much too far. Nevertheless, it is a Bill which has been met with

465
some very bitter comments and some very large demonstrations. The noble Lord cannot assume that either the trade unionists or the trade union leaders will necessarily be sympathetic to its provisions when it becomes an Act of Parliament. There may be some quite bitter disputes as to the meaning of the words "industrial action".
My final words are these. It is all very well to say when in doubt take a ballot, but let us consider what the Bill will do about ballots—how much more expensive it will make them, how much more elaborate the conditions under which they are held. These are probably important points and I am all in favour of holding foolproof ballots, if you hold them at all. But with that in mind, with large memberships and postal ballots, let us not minimise the cost to the unions of taking a ballot. It is not the sort of thing yew do just to settle a doubt; it is something you do because you must do it under the law or under the rules of the union. This casual way of disposing of the enlargement of the scope of Clause 1 is scarcely justified in the circumstances.
5.15 p.m.
Lord Campbell of Alloway: Without repeating anything that has been said on this clause, if the noble Lord, Lord McCarthy, were totally frank he would agree that it would have been opposed by Members opposite in its original form. It is now opposed in its amended form. Would it not be fair to assume that even in some further amended form in principle it would also be opposed? It is concerned with the right of ballot for industrial action. The noble Lord said that he might have accepted it if it were part of some mandatory rules. But he knows as well as I that it is wholly impractical to achieve statutory model rules for the trade unions without being guilty of a serious form of interference or oppression. He and I would probably have joined forces to oppose the imposition of statutory mandatory rules on trade unions. Like him, that is something which I do not think is correct.
Taking another point, I understand the noble Lord to say he might not have opposed this if it had been part of the contract of employment with the employer. But on reflection what on earth has this to do with the employer? It is a matter for us, the members, the trade union and with the establishment of the new freedom for the trade union member vis-à-vis his union, not vis-à-vis his employer. It would be wrong to re-enter the arena on industrial action, but when the noble Lord, Lord Houghton of Sowerby, says that this is a casual approach, I feel, with the greatest respect, that there is nothing casual about it. True, it may be empiric, but the situation warrants an empiric solution if you are going to protect this right.
Lord Trefgarne: I think it goes without saying that industrial action, however you define it, is designed to cause damage to the employer. The noble Lord referred to it as "inconvenience" to the employer, but whether or not it represents a technical breach of the contract of employment of the employee, very often it brings serious damage to the employer. Sometimes that damage is so serious that the very livelihood of the employees is at stake. The whole future of the firm is called into question.
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It seems to me therefore a reasonable proposition that before the trade union is authorised to pressurise or induce trade unionists to take such action it ought to seek the views of those involved. I cannot see what causes Members of the Committee such difficulity in that proposition.
The noble Baroness, Lady Seear, said that her difficulty was that we had now widened the definition of the sorts of cases that needed a ballot and that this changed her from supporting the clause to opposing it. But under the earlier arrangements what was proposed was that a ballot was necessary only when a contract of employment was to be broken or where inducement was going to take place for that effect. But I think that in the minds of trade unionists and even in the minds of the more sophisticated and senior trade union officials there might well be difficulty in knowing whether the action proposed was or was not a breach of the contract of employment.
We now propose, and I invite the Committee's agreement to this, that any industrial action suggested should be preceded by a ballot to determine the views of those who were directly involved not only in taking the action that was proposed but possibly in something affecting their very livelihoods. I venture to suggest that it is right and proper that before trade unionists are asked to embark upon this course they should have their views consulted and taken into account. They may vote against, but if the majority are in favour of the action it is protected as we propose under this legislation. That is the simple proposition contained in Clause 1. I believe that it should remain part of the Bill and I invite the Committee to agree to that.
5.20 p.m.
On Question, Whether Clause 1, as amended, shall stand part of the Bill?
Their Lordships divided: Contents, 131; Not-Contents, 89.

DIVISION NO. 1

CONTENTS

Allenby of Megiddo, V.

Coleraine, L.

Allerton, L.

Colnbrook, L.

Ampthill, L.

Cottesloe, L.

Arran, E.

Cox, B.

Auckland, L.

Craigavon, V.

Bagot, L.

Craigmyle, L.

Bauer, L.

Crickhowell, L.

Beaverbrook, L.

Davidson, V. [Teller.]

Belhaven and Stenton, L.

Deedes, L.

Beloff, L.

Denham, L. [Teller.]

Belstead, L.

Dundee, E.

Bessborough, E.

Eccles, V.

Blatch, B.

Elibank, L.

Boyd-Carpenter, L.

Ellenborough, L.

Brabazon of Tara, L.

Faithfull, B.

Broadbridge, L.

Ferrers, E.

Brougham and Vaux, L.

Fraser of Kilmorack, L

Butterworth, L.

Gainford, L.

Caithness, E.

Glenarthur, L.

Cameron of Lochbroom, L.

Gray of Contin, L.

Campbell of Alloway, L.

Greenway, L.

Campbell of Croy, L.

Gridley, L.

Carnegy of Lour, B.

Grimthorpe, L.

Carnock, L.

Hailsham of Saint Marylebone, L.

Charteris of Amisfield, L.

467

Halsbury, E.

Nelson, E.

Hardinge of Penshurst, L.

Newall, L.

Harmar-Nicholls, L.

Nugent of Guildford, L.

Harvington, L.

Orkney, E.

Havers, L.

Orr-Ewing, L.

Hemphill, L.

Oxfuird, V.

Henley, L.

Peyton of Yeovil, L.

Hesketh, L.

Pym, L.

Hives, L.

Rankeillour, L.

Holderness, L.

Renton, L.

Home of the Hirsel, L.

Renwick, L.

Hood, V.

St. Davids, V.

Hooper, B.

Saltoun of Abernethy, Ly.

Hunter of Newington, L.

Sandys, L.

Hylton-Foster, B.

Selborne, E.

Ironside, L.

Selkirk, E.

Jenkin of Roding, L.

Shannon, E.

Johnston of Rockport, L.

Sharples, B.

Joseph, L.

Skelmersdale, L.

Kaberry of Adel, L.

Somers, L.

Killearn, L.

Stockton, E.

Kinloss, Ly.

Strange, B.

Kitchener, E.

Sudeley, L.

Lane-Fox, B.

Swansea, L.

Long, V.

Swinton, E.

Lucas of Chilworth, L.

Terrington, L.

Lurgan, L.

Teviot, L.

Lyell, L.

Teynham, L.

Mackay of Clashfern, L.

Thomas of Gwydir, L.

Manton, L.

Thurlow, L.

Margadale, L.

Trafford, L.

Marley, L.

Tranmire, L.

Massereene and Ferrard, V.

Trefgarne, L.

Merrivale, L.

Trumpington, B.

Mersey, V.

Vaux of Harrowden, L.

Milverton, L.

Vinson, L.

Morris, L.

Ward of Witley, V.

Mottistone, L.

Wise, L.

Mowbray and Stourton, L.

Wolfson, L.

Munster, E.

Wyatt of Weeford, L.

Napier and Ettrick, L.

Wynford, L.

NOT-CONTENTS

Airedale, L.

Hatch of Lusby, L.

Amherst, E.

Hirshfield, L.

Ardwick, L.

Houghton of Sowerby, L.

Attlee, E.

Hunt, L.

Aylestone, L.

Jacques, L.

Basnett, L.

Jay, L.

Birk, B.

Jeger, B.

Blease, L.

John-Mackie, L.

Boston of Faversham, L.

Kilbracken, L.

Bottomley, L.

Kilmarnock, L.

Callaghan of Cardiff, L.

Lawrence, L.

Carmichael of Kelvingrove, L.

Listowel, E.

Carter, L.

Llewelyn-Davies of Hastoe, B

Chapple, L.

Longford, E.

Cledwyn of Penrhos, L.

Lovell-Davis, L.

Cocks of Hartcliffe, L.

McCarthy, L.

Cudlipp, L.

McGregor of Durris, L.

David, B.

McIntosh of Haringey, L.

Davies of Penrhys, L.

McNair, L.

Dean of Beswick, L.

Mason of Barnsley, L.

Diamond, L.

Mulley, L.

Dormand of Easington, L.

Murray of Epping Forest, L.

Elwyn-Jones, L.

Northfield, L.

Ennals, L.

Ogmore, L.

Ewart-Biggs, B.

Oram, L.

Falkender, B.

Paget of Northampton, L.

Fisher of Rednal, B.

Peston, L.

Foot, L.

Phillips, B.

Gallacher, L.

Pitt of Hampstead, L.

Galpern, L.

Ponsonby of Shulbrede, L. [Teller.]

Glenamara, L.

Graham of Edmonton, L. [Teller.]

Rea, L.

Ritchie of Dundee, L.

Grey, E.

Rochester, L.

Hampton, L.

Seear, B.

Hanworth, V.

Sefton of Garston, L.

Hart of South Lanark, B.

Serota, B.

468

Stedman, B.

Underhill, L.

Stewart of Fulham, L.

Wallace of Coslany, L.

Stoddart of Swindon, L.

Walston, L.

Strabolgi, L.

Wedderburn of Charlton, L

Taylor of Blackburn, L.

Whaddon, L.

Taylor of Gryfe, L.

White, B.

Taylor of Mansfield, L.

Wigoder, L.

Tordoff, L.

Willis, L.

Turner of Camden, B.

Resolved in the affirmative, and Clause 1, as amended, agreed to accordingly.
5.30 p.m.
Clause 2 [Right not to be denied access to the courts etc]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 14:
Page 4, line 17, at end insert—
("(4A) The court shall dismiss any proceedings with respect to a relevant matter where the rules of the union require that matter to be determined in accordance with those rules and the person instigating the proceedings has unreasonably declined or failed to be determined under the rules of the union.")
The noble Baroness said: The object of the amendment is to attempt to ensure that union rules are complied with by dissident members. As I am sure the Committee will be aware, all unions have rules under which individual members who have a grievance may have that grievance aired and dealt with. In my union, we have a very elaborate process in which everything possible is done to ensure that the individual receives a fair hearing and that the case is dealt with in accordance with the rules of natural justice.
First, there is a hearing on the spot which is conducted by an investigating committee of members of the executive council who have not previously been involved. There is then an opportunity for a full hearing by the national executive council. If the decision is not acceptable to the individual, there is a further right of appeal to a separate appeal body which does not include officers or executive council members but consists of other members holding no other national office whose sole function is to listen to appeals by individual members and decide on them. The individual member may be accompanied and has every opportunity of stating his case.
That is the kind of procedure which applies in many unions. The proceedings are scrupulously fair—so much so that no decision has ever been successfully challenged outside the union for at least the last 30 years. There seems to be no reason why an individual member should have the right to go to a court without going through union internal procedures where they exist and where the member has decided that he does not want to avail himself of them.
If there is concern that a dispute has been ordered without a ballot, the individual member in my union and in many others would have immediate access to the national executive council who would have the obligation to investigate. To allow a union member, possibly with public funds—that is what the Bill is about—to go to court without going through the procedures to which he is a party through acceptance of the union's rules and to have the court determine the issue without reference to whether the union had

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had an opportunity through its own procedures to deal with the issue seems to be quite inequitable. It is also undoubtedly a waste of public time and funds in some instances. It is another instance of unwarranted interference with the internal affairs of unions. Unions have procedures which have been established over a long period of time and the mass of members have given consent to them because the rules of the union must be decided by rules conferences which are representative of members as a whole. I beg to move.
Lord Mottistone: In view of the first line of subsection (1) of Clause 2, it seems to me that the proposed amendment directly contradicts that line. I do not understand why the noble Baroness, Lady Turner, does not remove the words:
"Notwithstanding anything in the rules of any trade union"
in order to make it consistent with her amendment.
Lord Campbell of Alloway: The noble Baroness has given a wholly objective account of the general domestic procedure under the rules of trade unions. However, in the case of Leigh v. National Union of Railwaymen, which was decided before the Act of 1971 and in which I appeared for the union, it was decided that although the courts have an overriding discretion to decline to entertain such proceedings, if there is an alternative remedy under the rules, they are not bound to exercise their discretion one way or the other.
The amendment to the clause, if carried, would seek to fetter the discretion of the courts after six months in the circumstances of Clause 2(1)(a) to (c). With respect, that does not appear to be a sensible and realistic provision to ensure that access is not denied to the courts in such cases which, in effect, reflects the reasoning and the decision of the court in the Leigh case.
The objection to the amendment is that it seeks to put the authority of the trade union rules above the authority of the High Court and to alter the common law procedure dramatically in favour of trade unions in that regard if the member has unreasonably failed or declined to have the matter determined by the union. That qualification seeks to fetter the exercise of judicial discretion which, as a rule, is exercised in favour of accepting the complaint and jurisdiction.
That fetter is not only unacceptable; it would be impractical. We come again to the question of model rules. There are no such model rules in general application; nor can or should there be. The rules as such and the circumstances in which they have been administered or in which it is feared by a member that they may be administered are all in point. It is also in point to mention the domestic appellate procedures according to the rules within the union, especially when, within the domestic procedure the decision that the member wishes to bring to the attention of the High Court is made contrary to natural justice, contrary to breach of rules or containing some other error of law. Those are the only ways in which the court could have jurisdiction.
In those circumstances, we have only to look at Rule 29 of the 1985 edition of the National Union of Mineworkers:
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"No member or person claiming under these Rules shall make any application to any court until the procedure established by these Rules is exhausted".
In effect, what warrant is there to put the authority of the rulebook above the authority of the High Court? That could well be the effect of the amendment.
The Earl of Dundee: I agree entirely with the noble Baroness concerning the principle that members' first resort should be to the union's internal grievance procedure. However, the amendment is unnecessary to achieve that as subsection (1)(b) ensures that the clause applies only where members have already submitted a valid application to the union for a grievance to be resolved. Where no such application has been made, the courts retain their powers to dismiss, stay or adjourn an application.
If the intention of the amendment was to go so far as to override that discretion, as my noble friend Lord Campbell suggested it might where a member has declined to use internal procedures, it would be too sweeping. I do not believe that the noble Baroness intended that. However, if one takes the amendment literally, one would have to say that that is its effect.
Members may have good reasons for not following internal procedures. For example, they may have evidence that a fair hearing will be denied to them. In such cases it is only proper that courts should have discretion as to whether or not they will hear a case. In the large majority of cases, the courts will decline to hear a case if the member has made no attempt to use the internal procedures available. With that explanation, perhaps the noble Baroness will see fit to withdraw the amendment.
Baroness Turner of Camden: t note that the Minister says that the amendment is unnecessary because the wording of the proposed legislation provides for it in another way. However, the intention was not to override the discretion of the courts, as the noble Lord, Lord Campbell, seemed to indicate. We refer clearly in the amendment to a member who has "declined". In other words, the procedures were there and available for the member and he has unreasonably declined to utilise them. We had thought that our wording coped with that situation, just as we thought that the authority for this clause rested with the fact that the member himself in joining the union has accepted the union's rules and those rules have been arrived at as a result of the democratic decision of the members. However, in view of the statement by the Minister 1 shall not press the amendment at this juncture. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Right not to be unjustifiably disciplined]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 15:
Page 4, line 36, at beginning insert ("For the purposes of this section").
The noble Lord said: This amendment seeks to place at the beginning of subsection (1) the words:
"For the purposes of this section".

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Clause 3 creates a new wrong of unjustifiable discipline, as it clearly states in subsection (1). In our submission there is an ambiguity in the subsection which needs to be cured. I trust that the Minister will not say that it is not necessary.
The subsections that follow provide a definition of unjustifiable discipline with a subsequent remedy in the industrial tribunal. Indeed, subsection (2) begins with the words,
"For the purposes of this section".
obviously to govern all of that machinery and definition. Subsection (1) as it stands appears to be wider. It is arguable at least that it might be used to found a wrong in the High Court on which others could rely.
It is well known that breaches of statute sometimes allow persons who are not pursuing the remedies set out in the statute to bring an action—usually an action in tort—against a defendant on the ground that he has used the unlawful means of the statute to damage that plaintiff. Here it would not be beyond the boundaries of imagination to see circumstances in which an employer or some other third party who had suffered damage by reason of subsection (1) relating to the unjustifiable discipline would bring such an action.
In my submission there are two points to add, although if that argument is right plainly those words are necessary in order to qualify the whole of Clause 3 as subsection (2) and the following subsections appear to be qualified. First, the argument is not answered by reference to subsection (7), which provides that the only remedies for infringement of the right conferred by this clause are those in the tribunal; that is to say, the action for compensation which might be brought in the tribunal by the union member. There are many precedents to show that even though a clause sets out a particular remedy—and the only remedies for the infringement of the right conferred by the clause are set out—the right of the clause is inherent in the disciplined member. The third party plaintiff would not be relying upon the right given by the clause but on the wrong established by subsection (1).
Secondly, it is true that in the decision of the Judicial Committee of your Lordships' House in 1982 in the case of Lonrho v. Shell their Lordships made it clear that a plaintiff who brings an action of that kind, which I may perhaps call damage caused to him by way of unlawful means established by contravention of a statute, must show that it was the intention of Parliament that he be allowed such an action. Parliament's intention is one of the main crutches on which lawyers win their cases, although often in our debates I wonder just where that intention lies.
This is a problem which has arisen many times before. When I thought of examples I thought that it would be appropriate to give a bipartisan example. The old prices and incomes or counter-inflation legislation (now of course not the kind of legislation which this Government espouse) in the Labour Government's Act of 1966 and the Conservative Government's Act of 1972 included sections which
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were almost exactly the same, albeit that the statute provided for criminal penalties for contravention, which made it clear that breaches of those sections created no liability in tort so long as there would be no difficulty with that particular principle.
In view of the fact that as the main principle the Judicial Committee expressly relied upon the fact that it had to seek the intention of Parliament on this matter, I urge the Minister to look at this amendment with a kindly eye because it could save litigation and therefore save cost and a great deal of time and trouble. I beg to move.
5.45 p.m.
Lord Campbell of Alloway: Apart from the Act of 1980 which to some degree applies in a closed shop situation, as regards expulsion from the union in the ordinary way the courts cannot entertain any complaint by a trade union member of unjustified expulsion or of disciplinary action unless there has been either a breach of rules or breach of the principles of natural justice.
In this day and age, having regard to the establishment of the new right and the new freedom, this is a wholly unsatisfactory situation. It is a situation which in the past has led to a measure of victimisation, abuse and intimidation. The proposals for Clause 3 were canvassed in the Green Paper (paragraph 2.10 and following paragraphs). In the MORI poll 75 per cent. of voters (and 60 per cent. of Labour voters) were in favour of protection against union discipline for not striking. It is true, however, that that view was not taken on the new form of drafting.
At one stage there was a measure of justified concern, which is met in the tailpiece to subsection (3) As that affects trade unions and their relations with their members, it is right to state roundly that Bridlington is in no way disturbed by Clause 3. Protection is still afforded for any trade union member expelled by his union for failing to comply with a TUC ruling on the Bridlington principles. For those reasons, this amendment is not open to the objections advanced by the noble Lord.
Lord Trefgarne: I must confess that when 1 first saw the noble Lord's amendment I was somewhat puzzled about exactly what it meant. To be perfectly honest, I am not very much clearer now having listened to the noble Lord. The problem is mine, however, and not his. Therefore, if the noble Lord will give me an opportunity to study what he has said I shall undertake that the matter will be looked into in case there is a problem of the kind that he has identified. At first blush, I do not think that there is; but I may be wrong. I should like an opportunity to look into the matter further, and on that basis I invite the noble Lord to withdraw his amendment.
Lord Wedderburn of Charlton: I am very grateful to the Minister. I hope that when he reads Hansard it will be a little clearer. If not, perhaps I may adopt the practice used by him and his colleagues and write to him to make it even clearer. On that basis I am very happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Principal Deputy Chairman of Committees: Before calling the next amendment I should point out to the Committee that if Amendment No. 16 is agreed to I cannot call Amendment No. 17.
[Amendment No. 16 not moved.]
Lord Rochester Lord Rochester moved Amendment No. 17:
Page 4, line 47, after ("(a)") insert ("(i)'').
The noble Lord said: In moving Amendment No. 17 I should like to speak also to Amendment No. 20 which has the same purpose as Amendment No. 16, which the noble Lord, Lord McCarthy, has not now moved. I hope that means that he will support Amendment No. 20.
For the convenience of the Committee I hope that it will be generally agreed that we can have a broad debate on a subject which, I think I am right in saying, was judged by all sides of the House at Second Reading to relate to the most important clause in this Bill. Under Clause 3 the Government now propose that an individual union member should be protected from being disciplined by his union if he refuses to join in industrial action even when that action has been endorsed by a prior secret ballot.
At Second Reading, speaking on behalf of my noble friends, I opposed that clause partly because of practical problems which I then instanced to which it would give rise in the case of employers but much more because in our view the introduction of this clause would invalidate the balloting process itself. Against that argument it was said at Second Reading by a number of noble Lords opposite that in considering whether to join in industrial action, a union member had to take account not only of his loyalty to his union but also of loyalties to his family and to his employer. Inherent also in the Government's case is the proposition that where there is a conflict between individual and collective rights the right of an individual to go to work should be allowed to take precedence over the right of his union to discipline him for refusing to take part in industrial action, even when it has been endorsed by ballot.
I can see the force of those counter-arguments but also know from experience that increasingly industrial success now has to do with the management of change and that if change is to be managed effectively it must be done by persuasion rather than imposition. To bring that about it is desirable that the law should strike a balance between the interests of representatives of management (employers) and of those who are managed (trade unions). However, the position in this country, unlike that in other countries, is that there is no collective right to strike and if there is a strike the employment contract is terminated. It is not suspended; it is judged to be broken. To cap everying, despite the fact that under this Bill the closed shop is now to be made unenforceable in all circumstances, the Government are insisting on introducing this clause. Therefore, so far from there being a balance in these matters the scales are being weighted very heavily—in my view much too heavily—against the unions.
All I can do—but in doing it I am backed by almost every reputable organisation of employers and
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employees in the land—is to warn the Committee against the possible consequences of agreeing to the inclusion of the clause in the Bill. It will not only prove damaging to the balloting process, it will undermine the authority of responsible union officials and be detrimental to our industrial competitiveness. I beg to move.
6 p.m.
Lord McCarthy: This side of the Committee withdrew Amendment No. 16 so that we could participate in support of Amendments Nos. 17 and 20 tabled in the name of the noble Lord, Lord Rochester. I hope that on this amendment we can find very widespread agreement on all sides. As the noble Lord, Lord Rochester, said, there is widespread agreement outside the Chamber and outside the confines of the Government in areas where the Government can normally expect to find support; namely, the CBI, the BIM, the Institute of Directors, the Institute of Economic Affairs and even the Conservative Trade Unionists' Association.
There is widespread concern about the consequences of this clause should it form part of the Bill as it stands. The Industrial Society said:
"We are very concerned that if the individual union member has a legal right to circumvent a properly taken majority decision and thus may be held to have no responsibility towards his/her union, there will be no reason why anyone should take the balloting process seriously. The likely consequence is that the value of the beneficial measures already introduced will be lost".
The IPM said:
"The Green Paper appears not to accept that a trade union (when properly run) is a body, which, no less than a commercial organisation, disciplines people behind a legitimate purpose. The use of the law to deny such a body any opportunity to discipline members when they infringe rules which go to the heart of the contract between the union and its members is coming close to denying the body any legal standing. This is a far cry from action to ensure that trade unions are democratically run".
Finally, the Confederation of British Industry stated:
"The principal argument against the proposal is that it could undermine the balloting process itself, so productively encouraged by the 1984 Trade Union Act insofar as it was seen to provide a form of statutory protection for those refusing to be bound by the results of such a ballot. It is a measure of the importance that employers attach to the proper pursuit of balloting procedures that the CBI believes it would be right, for the time being at least, to take this proposal no further".
It seems to us that in fact there are four arguments to adduce against this clause. First, as the Institute of Personnel Management rightly argues, all voluntary organisations, all democratic institutions and all institutions and bodies which claim to be democratic claim the right to have rules. They claim the right to consider the behaviour of their members by reference to those rules, and if members sufficiently disobey those rules, breach them or go against the collective policy and collective decisions of those organisations, in the last analysis they claim the right to discipline and even to expel them. It is not just a feature of clubs and girl guides' organisations. It is a feature of employers' associations and professional associations; and under this clause it continues to be a feature of every other sort of association except trade unions. We do not think that that is justified.
Secondly, as the CBI points out and as is so evidently the case, the only way to preserve coherence

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and unity in a voluntary organisation is by the principle of majority decisions, the principle of majority rule. That is why the employers are so worried about this clause. If there is no right to discipline the minority who remain at work, what validity is there in disciplining the minority who in other circumstances refuse to go back to work, or the minority who refuse to wait for a ballot? I know what the Minister will say. At least he would have said it if I had not said that he would say it. He will say that they are not taking that right away. But that does not make the clause any more acceptable in our eyes, or in the eyes of many other people.
How can it be fair to say that you give the union the right to discipline people who will not go back to work, or who strike without the sanction of the union, but you do not give the union any right to discipline people who take no notice of a majority decision and a legal ballot to come out on strike? What kind of justification can be found for that?
As the noble Lord, Lord Rochester, said, the third reason we give is on the argument that Members opposite may put forward about the abuse of trade union power, about people being excluded from unions and dismissed from their jobs because of the operation of the closed shop. The Government have acted in a series of legislation since 1980 to make that unlawful. There were provisions in the 1980 Act; there are further provisions in the Bill to which we shall be coming later tonight, that make the closed shop completely unlawful. Already, unreasonable expulsion from a union can be caught, placed before an industrial tribunal, and compensation can be given. Therefore if any argument based upon the abuse of trade union power had any conviction, meaning and plausibility, the Government have taken it away.
Finally, the Government do not propose to do anything about the disciplinary sanctions of the employer. This Government introduced selective dismissal rights in the 1982 Employment Act. This Government have taken out of any protection from unfair dismissal all workers with less than two years' service. If the employer is to retain his disciplinary sanctions, if he can now dismiss instantly—as he can—for all forms of industrial action that breach the contract, how can we say that it is fair and right to prevent the trade union from having a sanction which in practice is bound to be much weaker than that? In any circumstances where it might be at least as strong as that, the Government have taken it away by what they have done about the closed shop.
We say that if one looks at the circumstances and the facts one cannot find any examples today of the abuse of trade union power in the use of its disciplinary sanctions. Certainly one cannot find anything of the size or scope to justify legislation of this kind. I know that the Government in the Green Paper give a few examples of individual unions which have imposed discipline on their members, such as the National Union of Railwaymen and the Confederation of Health Service Employees with specific offences in their rule books to discipline strikers. There are the 1,200 members of the National
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Union of Mineworkers who in 1982 were disciplined or fined. In addition, the Transport and General Workers Union and the National Union of Journalists at various times are said to have imposed severe fines upon their members. In my experience these fines are hardly ever carried out. In the Green Paper, as the Government say quite rightly, where those sanctions are carried out in a draconian way, the union lives to regret it.
The Government say in the Green Paper that the National Union of Mineworkers' expulsions contributed very decisively to the growth of the Union of Democractic Mineworkers. That is why most people in the trade union movement consider that it was extremely ill advised. As the Green Paper said, the National Union of' Railwaymen's penalties, never severe, led to a very large number of resignations, and in Unity House they have drawn the right conclusions.
Unions today, especially as a result of what the Government have done about the closed shop, use their penalties very scarcely and very carefully. Nevertheless, if they are to march into the world of endless ballots that this Government wish to place around them, they must have some chance, some opportunity, to create some unity, solidarity, and a measure of control among their members. That is why not only we on this side, but also some in other parts of the Chamber, and a very large number of employers outside, do not wish to see this clause put into the Bill.
Lord Boyd-Carpenter: Members of the Committee discussed this issue at some length during the Second Reading of the Bill. Indeed, some of us expressed the view that it was one of the important aspects of the Bill from the point of view of its major policy of restoring power to the individual trade unionist as against the leadership of the unions. It is obviously very relevant to that because it involves some redistribution of power within a union.
The noble Lord, Lord McCarthy, simply brushed aside the position of the individual trade unionist who finds that his union, after a ballot, has decided upon strike action. Whichever way the individual trade unionist has voted in that ballot—and I do not think that the issue is very much affected by whether he voted for or against it—he is faced with an individual and a personal problem. If he comes out on strike or takes other industrial action, he is liable to be dismissed by the employer and to lose his job without any legal rights, as I understand it, to compensate him.
For that individual, in particular if he happens to be a family man with dependants, it is a very serious matter. I do not think that it is to be assumed that his loyalty to his union necessarily, and in all circumstances, must take precedence over his duty to look after his wife and family. Moreover, he may also have a loyalty— as I am glad to say many people in this country have—towards his employer. He may feel—as, for example, someone who works for the Rover company may feel at this moment—that industrial action will endanger the stability and continuance of his employer and therefore the chance

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of himself and his colleagues continuing in good and well-paid jobs. He may well feel that the continuance and continued prosperity of his employer is at least as important as his loyalty to the union.
I am not saying that anyone faced with these difficult problems has necessarily a very easy decision to make. I do not think he has. He is in a difficult position. However, the purpose of the Bill, as I understand it, is to leave that decision to him so that he, as a responsible citizen, can decide without fear of punishment or victimisation whether to take part in the action that the union is taking or, on the other hand, to continue to work and to help preserve his employer's business and his own rights in supporting his family.
For that reason this is a very important matter. The noble Lord, Lord McCarthy, rather brushed aside the penalties that are apt to be imposed by a union on those who do not take part in its action.
Lord Graham of Edmonton: Will the noble Lord give way?
Lord Boyd-Carpenter: Yes, though it is not a very convenient moment, but I have such an admiration for the noble Lord that of course I shall give way.
Lord Graham of Edmonton: I am grateful to the noble Lord. He makes the case for the minority members of a union in a dispute who lose their argument and find themselves in a minority. We are arguing about the right of a trade union to discipline such people. How would the noble Lord react to people in a minority working for the employer by, for example, taking payment or giving out leaflets encouraging the members of the union to work? Will the noble Lord say how he would view the right of a trade union to discipline its members in such circumstances?
Lord Boyd-Carpenter: That is not a point that arises on the amendment. The point that arises on the amendment is that the union member should be protected if, notwithstanding the decision of the union to take industrial action, he continues to work. I have suggested that there may be factors in his mind which will weigh in favour of so doing. The noble Lord asks a fascinating question: what happens if the union member goes further and takes action against his union as he describes? That raises an interesting matter, but it is not a question which arises on the amendment. With great respect to the noble Lord, I propose to stick to the amendment.
The noble Lord, Lord McCarthy, sought to dismiss the penalties that unions impose and said that very often they are not enforced. He may remember—indeed it was quoted on Second Reading—that during the Wapping dispute the National Union of Journalists imposed fines of 1,000 on 95 of its members who had, in the view of many of us, put their loyalty to their newspaper and their loyalty to their jobs ahead of their loyalty to their union.
Lord McCarthy: May I suggest—
Lord Boyd-Carpenter: Just wait a moment. I shall give way of course. Those members made that a priority and the union imposed the substantial fines. Now the noble Lord may intervene if he wishes.
Lord McCarthy: Does the noble Lord agree that the best way to have protected the workers at Wapping would have been to protect both sides? Would it not be better if the Government were to protect the worker against the employer who sacked thousands of people at Wapping because they broke their contracts and at the same time protect the workers against the union? The trouble with the Government is that they want it one way and not the other.
Lord Boyd-Carpenter: Again, the noble Lord is trying to widen the scope of the amendment which he is supporting. I hope he will not mind if I bring him firmly back to this amendment. The issues he raises are fascinating. They may well arise on other amendments. They do not arise on this one. On the present amendment I am quoting the Wapping case against what he said—that is, that the penalties are very often not enforced. In that particular case substantial fines were imposed on members of that union who had, in the view of many of us, properly decided to support their newspapers against a wholly irresponsible and foolish strike—
Lord Renton: Will my noble friend allow me?
Lord Boyd-Carpenter:—and one which, as the noble Lord may remember, ended in failure for the union.
Lord Renton: May it not be that some of those members who did not comply with their union's request paid great attention to the freedom of the press and that that was why they decided to take the action that they did?
Lord Boyd-Carpenter: That may well he. It certainly adds to the view that some of us take that they acted more responsibly as well as more sensibly than their union in the course of a very foolish and unsuccessful industrial action.
We have now to consider the issues between the power of the union—which admittedly may be weakened a little by these provisions—and the rights of the individual, which will be very much strengthened by these provisions. This is a matter of judgment. During the Second Reading debate it was suggested that we need not worry about the position of the individual because he could always leave the union altogether if he did not like what it was doing. I do not think on reflection that that is a very valid argument because many union members desire to remain members of their union. They have a respect for it. They find it useful. They may well be involved in its welfare and other activities and there is no reason for them to be driven out of the union because the union takes action of which they do not approve.
It seems to me that the Bill as it stands is a sensible and deliberate readjustment of power in favour of the individual against union leadership. I personally am very much in favour of that.
6.15 p.m.
Lord Wyatt of Weeford: My Lords, I am sorry to have for once to disagree with the noble Lord, Lord Boyd-Carpenter, but I feel that the Government will be making a bad mistake if they do not accept the amendment moved by the noble Lord, Lord Rochester, and supported by the noble Lord, Lord McCarthy. We are now moving into an area which strikes at the very heart of what trade unions are all about; collective action. So far the Government have done very well in their legislation. They have proceeded carefully to make the unions thoroughly democratic in the election of officers and in the right to have a ballot before a strike. That is fine. I am all in favour of that, but once one starts saying that when a majority in a properly conducted ballot has voted for a strike, but nevertheless the minority can take no notice of it, one begins to make that union ineffective in any sensible way whatsoever.
During the miners' strike I was in frequent contact with the working miners. Again and again they assured me that if Mr. Scargill had allowed a properly conducted ballot, as provided for in NUM rules, and if that ballot had agreed that there should be a strike, they would all have supported it because that is the nature of union loyalty. That is what unions are all about. It is a justifiable tradition, because otherwise they can be defeated and scattered too easily. I want unions to be strong and democratic. I have only ever opposed unscrupulous trade union leaders who manipulated votes or caused false elections to take place or who took power which union members did not really want them to have.
I also want to make sure that union members are in charge of their own decisions. I believe it is possible and that it would be right to have in strike ballots a secret postal ballot as well as in all other ballots. It might delay the starting of a strike. But that would be a good thing for it would provide a cooling-off period. If a secret postal ballot can be held for all other elections it makes sense to have a secret postal ballot to decide whether to strike.
However, I feel that the Government, in not accepting the amendment or in acting in such a way that the amendment has to be voted on, are going over the top and are missing the point of what trade unions are all about. They will start risking the support of those trade union members who so far have been very enthusiastic about the reforms which have given them the power to elect their own leaders and to make their own decisions.
Baroness Seear: I should like to ask the Minister four questions. Do the Government believe that good industrial relations are essential to the economic development of the country and of companies? Does the Minister believe that responsible trade unionism and responsible trade unions are essential for good industrial relations? Does he believe that responsible trade unions, playing their part in industrial relations, require that there should be an equilibrium between the power of the employers and the power of the union, not unduly weighted on one side or the other? If he believes that, does he believe that the clause will not upset that equilibrium, taking into
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account the extent to which other Government legislation is already biasing the balance of power in favour of the employer?
Lord Mottistone: I should like to intervene because I was quoted by the noble Lord, Lord McCarthy, on a couple of occasions. At Second Reading I suggested that this clause should remain part of the Bill and that the objections to it were not as valid as they may have been in the past. I shall not repeat what I said on that occasion. The important point is that the CBI has been quoted as being on the side of those who are against the clause. After I had spoken against it I received a letter from the CBI stating that my views on Clause 3 were shared by a substantial number, albeit a minority, of CBI members. I should like to get that in proportion.
Finally, in answer to these questions, I should like to say that the disciplining can be fierce. Members of the Committee know very well that in earlier times it has been fierce in threat if not in fact. The majority of the bodies of people who join together do not have fierce rules and the ability to penalise their members who do not agree with them. For example, if I make many speeches against the noble Lords among whom I sit, my only ultimate penalty will be an invitation to sit on the Cross-Benches. Some of the laws of some of the unions are considerably more fierce than they ever need to be.
I honestly do not believe that the objections raised against the clause are as real as they are thought to be. The clause will not upset industrial relations throughout the land. People are perfectly capable of running their industrial relations satisfactorily with the clause enacted. The clause has been greatly exaggerated, not only by noble Lords opposite, from whom one can understand it, but also by noble Lords sitting on the Liberal Benches, if I may call them that. They are attaching much more importance to the clause than in practice will be found to be the case in industrial relations terms.
Lord Prior: I crave the indulgence of the Committee. I had no intention of making a maiden speech during the Committee stage of a Bill. Nor, when I came into the Chamber this afternoon, did I intend making a speech. However, this subject has interested me for a number of years. I have listened to the debate and I think that it is probably a proper occasion for me to say something which I hope will not be regarded as too controversial but which will, according to the rules, give Members who follow me an opportunity to say that they hope to hear me again on some future occasion.
In some ways I feel a responsibility for the course taken by the Government over the past eight years in industrial relations law. I believe that the step-by-step approach of the Government in gradually introducing law into trade union affairs has been absolutely right. I strongly support what my right honourable and honourable friends in the other place have sought to do.
I have always felt that at the end of the day there must be a balance. I believe that this clause goes over the top as regards balance. I believe that it prevents

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trade union leaders who are seeking to do their job—and, let us face it, there are bad trade union leaders but there are many good ones—from exercising the kind of discipline which is sometimes necessary. I accept what the noble Lord has said. Some of the discipline is harsh and extremely stupid, and it has generally resulted in the trade union and its leaders being brought into disrepute. That certainly happened in the case of the National Union of Mineworkers and also, I suspect, in the case of the National Union of Journalists. In the case of the NUJ, it merely resulted in many journalists leaving the union and joining the Institute of Journalists or not joining a union at all. To that extent I believe that there must be some disciplines.
In other legislation the Government have instituted a whole range of secret ballots. Generally speaking, I was in favour of voluntary secret ballots and not particularly in favour of compulsory secret ballots. However, we now have compulsory secret ballots, which seem to be working tolerably well. Therefore I believe it to be right that if a secret ballot, conducted in a proper way, goes against certain people they must obey the verdict of the majority.
Above everything else, I want this legislation to work. I believe that it has brought about a considerable improvement in the conduct of our industrial relations over the years. I should not like a clause in the Bill to start the process of undoing an immensely successful and important part of recent legislation. I urge the Government to think the matter through again. It is not that certain people or organisations are for or against it. I can well understand that there are mixed views within the CBI, and there are probably mixed views within a number of other organisations. I believe that it is a matter of where one seeks to draw the balance. I believe that the balance is in favour of the secret ballot and in favour of accepting the fact that when the verdict is one way that is the way in which other people must also honour it.
Lord Murray of Epping Forest: I suspect that there will be considerable competition for what is indeed the privilege and the honour of congratulating the noble Lord on his maiden speech. I am sure that those congratulations would have been offered had he made a speech of a different kind. His speech has reflected the experience, wisdom and judgment which have always shaped his attitude towards industrial relations. If I may be partisan for a moment, I should like to say that I believe that has also reflected his common sense and wisdom acquired through his previous experience of legislating. I am quite sure that we shall hear the noble Lord often. I hope that I shall always agree with him as I agree with much of what he has said today. However, whatever the noble Lord says we shall always listen to him with respect and affection.
In the discussions today we have heard much about ballots. In that context the Minister has emphasised the rights of the members and we are told that this provision is designed to improve those rights. Indeed, it enhances to a point the rights of certain trade union members, not against some mythical faceless trade union boss but against fellow members. It enhances
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the right against those who, with him and his predecessors, have after a period of time designed the conventions, practices and rules of that union. I find odd the claim that the right to work of this group of people should in some way be superior to his responsibility to the rest of his fellow members in abiding by the results of a ballot in which they have jointly engaged. From the point of view of the employer, if I were an employer I should not particularly welcome fellows engaging in that kind of activity. This clause will favour the worst kind of employee: an employee who ignores ballots; an employee who disregards his responsibility towards his fellows. Therefore—and here I wholly share the view expressed by the noble Baroness, Lady Seear—I do not believe it will be conducive to the good industrial relations which both sides of this argument purport to be seeking. I find this offensive in trade union terms.
If I may stray somewhat from the amendment, I find it even more offensive in democratic terms. I remember arguments—and there were arguments caused by the noble Lord who has just spoken—with people coming to me and calling for the trade union movement to ignore laws that had been passed, describing them as Tory laws, offensive laws and laws which did not command respect. My argument to those people was: "I do not like the laws either; I do not like the motives behind them. However, those laws have been carried by an elected Parliament. The way to deal with this is to go to a further election, get rid of the people who carried the laws and change the laws". The answer is not to ignore the law. It is not to fight against the law with disruption and violence.
If this clause is carried, that argument will not hold one drop of water against people who go to trade union leaders in the future and urge that acts of that sort should be taken. It will cut the ground from underneath those who seek, however much they dislike it, to uphold law and order and the rule of law and order.
6.30 p.m.
Lord Campbell of Alloway: Surely, it is really a question of balance on which one cannot dogmatise? Many Members of the Committee including myself believe that the Government have it right. The question is: is it right to continue to expose trade union members to these substantial penalties? Let us not minimise them. There have been not only the problems at Wapping and the events concerning the NUM. The Committee will know the nature of the penalties involved, albeit—if the noble Lord, Lord McCarthy, says so I accept it—seldom imposed. Why should they be seldom imposed? Why should they be imposed at all? Is it necessary, to maintain the status of the great trade union movement, that unions should be able to impose these penalties?
One hopes that we shall hear my noble friend Lord Prior speak again on many occasions. It is somewhat embarrassing for me to say this. Although we part company tonight on a question of policy, we parted company many years ago also on a question of policy. But we have always remained close personal friends.
Lord Houghton of Sowerby: I hate strikes; I hate coercion or intimidation in any form designed to ask people to change their minds. However, we must bear in mind the history of the trade union movement and the deeply entrenched loyalties which membership of a trade union requires. Why does a person join a union in the first place unless he is prepared to accept the obligations of his membership? One of those obligations, in many cases, is to obey a strike call if it is lawfully given in the name of the union. In Parliament we have imposed conditions on unions which have to be satisfied to make that strike call lawful. Therefore, we have strengthened the position of the individual member of the union against irresponsible, unrepresentative and unlawful calls upon his services.
In those circumstances, the loyalty of the member to his union is stronger than when he joined it. He is now protected to an extent that the rules did not give him. Therefore, he is now under a stronger obligation than he used to be. The difficulty about divided loyalties is sometimes in failing to sort them out at the start. If one joins a trade union, one has declared a loyalty. And that loyalty is within the rules of the union and the obligations of membership. By a voluntary decision to join a union, a member has placed that loyalty very prominently in his behaviour. If he joined a union because he was coerced afterwards or became a reluctant member of a closed shop, he probably did not decide what his loyalties were at the proper moment. I believe that you cannot submit yourself to the coercive disciplines of a union when you join it and then repudiate them later on. I believe that the time to make the choice of loyalty is on joining the union.
There is no worker more despised in the eyes of many wives than a husband who does not support his mates at a time of crisis. Many times men have gone forward in strike action because their wives have said, "We must not give in. We will bear whatever has to be borne at home. The kids will not go short. We will have to do our best". That spirit has been behind strike action many times in the past and, indeed, quite recently too. In those circumstances we cannot put the choice of loyalties of a person first at this time. We cannot allow him to put it first either. He has to be loyal to the choice he made when he joined. That is a simple question of loyalties.
Many Members of the Committee have never been members of unions. They have never been through this; they have never had to endure the conflicts of mind and personal interests that are involved. Great sacrifices are involved in strike action. In those circumstances, it has to be conceded to those of us who have spent our lives in the trade union movement when we say that this is so fundamental that if the Committee rejects the amendment, it will make the gravest error. There will be nothing but chaos in many workshops afterwards. Another Bill will be needed to rectify the mistake.
Members of the Committee on the Benches opposite probably do not realise and cannot understand how deeply felt is this matter. 1 urge the Committee to accept the amendment and to accept the logic and the sincerity of the noble Lord, Lord Prior, who, from this side at any rate, we warmly
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congratulate for the courage and temperate approach he has shown towards a difficult matter over many years.
Viscount Massereene and Ferrard: Perhaps I may point out that one of the reasons a man joins a union is that if he is trained in a certain trade and he does not join that union, then he cannot find a job. I once owned a small factory, so I know something about the matter. I just wanted to make that point.
Lord Callaghan of Cardiff: Like the noble Lord, Lord Prior, I had not intended to speak. However, I feel that I cannot let this occasion go without expressing how profoundly wrong I believe the Government are in this matter. I believe that I should state my view. I always understood that the view of successive governments was to hold the balance fairly between the employer and the employee. Because of what has happened in recent years, the Government have felt impelled to take action.
There have been occasions when the balance has fallen one side or the other with the decisions taken and the new legislation put on the statute book. On this occasion I want to say to the Committee with as much sincerity as my noble friend that the Government are hopelessly wrong. They are tipping the balance far too much on the side of the employer. They are tipping it against good, viable trade unions.
I do not know whether my noble friend is right to say that there will be chaos and anarchy; often when one prophecies that, it does not happen. It may or it may not happen. I do not know whether there will be chaos as a result of this measure, but I do know that millions of trade unionists will believe that the Government are operating unfairly against them. They will believe that the Government have tipped the scales in favour of the employer and against them in such a way the Conservative Party will now be departing from an attitude that it has taken ever since trade unions were first formed.
The Government have made a very serious decision and I suppose that Members of the Committee opposite will follow it. If I may say so, I should have thought that the Government would take note when such staunch supporters of Government legislation—I do not mean of the Government—as the noble Lord, Lord Wyatt, or someone with the experience of the noble Lord, Lord Prior (whom we should all congratulate on his maiden speech, whatever our views on it) take the same view as someone like myself to whom perhaps the Committee does not listen so much. The Government Benches should be influenced by what has been said by people who are taking this view, perhaps for the first time in public, having supported the Government so far.
The Government will convince a great many trade unionists—not necessarily the rank and file, but active, good, patriotic trade unionists who want the best for their country and for their unions and who are in no sense militants—that the Government are operating against them, and operating unfairly against them. If the Government pursue this clause they will sow the seeds of discontent in the same way

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as the Trades Disputes and Trade Union Act 1927 did after the General Strike, because it was penal in its operation. It sowed the seeds of discontent until it was repealed in 1946. I say to the Government that that will happen again. I do not know how long it will take but if the Government pursue this clause I promise that is what will happen.
6.45 p.m.
Lord Joseph: Like my noble friend Lord Prior, who, of course, we shall all want to hear again and again, 1 did not intend to speak when I came into the Chamber today, and I have not heard the whole of the debate. However, I want to pick up an assumption that the noble Lord, Lord Houghton, implicitly laid before us. He spoke as if an individual has to choose, when joining a union, whether his loyalty is to be to his union or to his employer.
I believe that that assumption, which may conceivably have been justified in the remote past, has been one of the causes of this country's relative economic decline. Of course we all think (do we not?) that the real interests of the worker is for the trade unions' perceptions and the employers' perceptions to be the same—to serve the customer, who, after all, provides the jobs, effectively. I therefore do not think that we should follow the noble Lord, Lord Houghton, who if I may say so, generally talks such extraordinary robust good sense, in the assumption he laid before us that the unions and employers are, as it were, permanently in a relationship of conflict. It is from that assumption that so much of our trouble has come in this country.
We all know that behind the strike lie the customers and behind customers lie jobs. It is possible, as we have seen in the case of Wapping, that the judgment of the unions was very damaging to the future prospects of its members. I am passionately in favour of a high earning, low cost, fully employed economy. I do not see that this particular clause goes against that prospect.
Lord Trefgarne: I shall start by dealing with the specific amendment before us and then perhaps saying a few words rather more widely about the clause itself because I fancy that the Committee, having had such a full debate on this amendment, will not wish to dilate at such length when we reach clause stand part. However, that is not to prevent Members of the Committee from intervening when they think if right to do so; but Members may agree to proceed in that way.
Members of trade unions which organise industrial action have a number of conflicting obligations: to their employer, their union, their family and to those affected by their work, whether the firm's customers or people dependent on their services. That proposition has been the theme of many of the speeches we have heard this evening. The individual surely has the right to decide for himself which of these must take priority.
A strike ballot is of direct benefit only to the union. It must hold one to retain its privileged position of immunity from legal proceedings. The result of a ballot gives the member a useful indicator of the
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opinion of other employees, but the decision whether to strike is, necessarily, a decision for each individual. The ballot does not affect what the employer is entitled to do if the member does strike: it does not (nor should it) protect the member against dismissal or legal action by his employer.
In addition, a member could be in some doubt as to whether a ballot satisfied the 1984 Act. In the final analysis, this could rest on a court case; the member's protection under the clause should not depend on the outcome of other potential legal proceedings. In practice, people may change their minds after voting in a strike ballot. If they do, the only way they may have to express this is to "vote with their feet" by returning to work. Moreover, the circumstances shift constantly; the situation when the member makes his decision will hardly ever be the same as it was at the time of the ballot.
A member who belongs to a union which organises industrial action but declines to take part in it himself is not in an inherently self-contradictory position. What is peculiar is the assumption that all those called to take action must do so on pain of discipline. This total view of union solidarity is not shared by unions in many other civilised countries. As it is, the individual alone must decide which of the conflicting obligations to honour and whether or not to strike. It would be unreasonable to protect against union discipline only those who did not join an unballoted strike.
Doubts have been expressed about the need for the protection offered by this clause. Because we have quoted only a few occasions of union disciplinary action the impression appears to have taken hold that the Government arc motivated by ideology rather than by the existence of an abuse requiring correction. I shall come to the principles in a moment.
Perhaps I may remind the Committee of the famous NUR case, which involved 12,000 members—a staggering figure. The National Communications Union is reported to have expelled 1,000 members and to be currently considering disciplinary action against a further 1,300. One of the teachers' unions is said to have expelled 500 members, with as many again resigning just before they were expelled. The NUM disciplinary action after the miners' strike involved several hundred miners.
Nor are they the only cases. I remind the Committee of one or two others. In May 1984 the NGA chapel of the West Country plant of a printing group directed its members to withdraw their labour in support of workers taking industrial action in a different part of the group. Nearly one-third of the members took the view that, as it probably constituted unlawful secondary action and as no ballot had been held, they ought not to stop work. The general secretary of the NGA then wrote to the non-strikers suggesting that the dispute was a primary one of concern to the whole group and implied that if they joined the industrial action at that point their branch would not institute disciplinary proceedings against them. In the light of that the non-striking members ceased working and only resumed when the dispute was over. However, the

487
NGA took disciplinary action against the members and they were each fined £2,000. I agree that that figure was later somewhat reduced, but in addition to the fine the union penalised the members by excluding them from overtime for 200 hours, which amounted to approximately £1,200 per person.
There was also a Mr. C—I shall not identify him personally—
Lord Howie of Troon: Does not the Minister agree that the law has been changed somewhat since 1984 and that the example he has just given is wildly out of date and not relevant to the debate?
Lord Trefgarne: No, I have been careful to choose cases which are relevant and which might cause continuing problems had we not brought forward the proposition contained in this clause. I give your Lordships another example.
Lord McCarthy: Is it true that the case about which the noble Lord spoke would have been covered as unreasonable exclusion under the 1980 Act?
Lord Trefgarne: That is what the members thought. Unfortunately they were fined £1,000 and then excluded from overtime at the cost of another £1,200.
There was then the case of a Mr. C who was a member of the TGWU. He was employed at the main depot of a bus company. In October 1985 his local branch decided to support the call of the union for a 24-hour stoppage of work. After much reflection Mr. C, who had been hired out as a driving instructor to another bus company at the time, decided to go into work on the day in question. The reason he did so was that he felt under an obligation to commence the training of the three new bus drivers who had been formerly unemployed. He was later fined £30, which was the maximum penalty under the rules of the union for failing to comply with the decision of the branch to strike. He was also threatened with expulsion from the union if he did not pay. This might have led to the loss of his job, which was at that time within a closed shop.
Members of the Committee may wonder with me how unions can consider it to be in their best interests to operate in this way. Even more surprising is the argument that union members having found themselves in disagreement with their union should voluntarily withdraw. Are the unions so flush with members that they can view losses on this scale with equanimity? Even if unions can withstand such a voluntary outflow that does not justify forcibly expelling members who disagree. That has connotations of a witch-hunt and could have the effect of leaving the union movement manned with yes-men and women who are too scared to stand up for their own view of what is right.
The Committee may well agree that members who consistently find themselves in a small minority opposed to a majority view have no long-term future in an organisation. What I find extraordinary is that unions should wish to make an issue of every disagreement even where in some individual cases
488
known to the Government to which I have referred the person has a long history of loyal and active service to the union.
Many of the arguments of principles have focused on contracts and obligations. It would be inappropriate to rehearse the legal points about conflict and priority of contracts. As we have said before, the Government accept that an individual contracts to abide by the rules of the union. We do not say that his contract of employment should automatically take precedence over his obligations to his union. We are not attacking the legitimacy of industrial action although examples put forward by some Members of the Committee seem to assume that we are. The question that we have to face is this. Can it be right for participation in industrial action to be an obligation enforceable by the union? We say that it is not. Some unions are resolved not to strike; many unions do not strike, and in most countries unions operate quite effectively without forcing their members to strike.
There is an important point here which I believe has been obscured by much of the discussion and through many of the analogies which have been used. We do not accept any of them. Unions are unique and have been long recognised as such. Nevertheless it is worth pointing out that most organisations or societies take binding decisions which do not oblige their members to support or participate in what has been decided. I use the analogy of the golf or tennis club. How many clubs discipline their members for failure to participate in club tournaments or even for failure to play at all?
Some Members of the Committee have made much of what they think is an embarrassing situation for the Government protecting a member against discipline for not complying with the result of a ballot in favour of striking. The Government have no hesitation in saying that such a person should be protected. Is the right to dissent to be extinguished, however remote the act of the individual from the circumstances of the ballot? Circumstances change quite rapidly and the position will never be absolutely identical at the time of the ballot when the union member has to make his choice.
This argument is strengthened when one considers the situation of the individual union member who has actually gone along with the majority decision and come out on strike. Suppose that the strike goes on for two or three weeks and the employer makes a new offer but the union executive, for reasons of its own, decides that it wishes to continue with the dispute. What if the individual member (and perhaps others) decides that the offer made is a fair and reasonable one? Surely it cannot be suggested that if those members vote with their feet and go back to work they should be subject to the discipline of the trade union.
In the last resort it comes down to a fundamental issue of political philosophy. As the Government's manifesto made clear, we place a high priority on the freedom of the individual to decide for himself. It has been said more than once that a ballot before industrial action resolves the conflict of loyalties or obligations which an individual may face. If this means that when a majority of my fellow members

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have put their pay claim above the survival of my firm, the interests of my patients or the welfare of my family I am to be obliged to do the same, then I have to reject the proposition.
Trade union members are free adults and we intend that they should be treated as such. This proposition was contained in the Green Paper published last year; it was contained in the manifesto put to the people in June of last year. It was passed by honourable Members in another place and I now invite your Lordships to agree to it as well.
Lord Rochester: It is my privilege to wind up this debate and I feel that it is a privilege. I should like to thank all Members of the Committee who have taken part and perhaps I may mention a few by name. In particular I am most grateful to the noble Lord, Lord Wyatt of Weeford, an independently-minded Member. What he had to say came over with all the more force on that account.
The noble Lord, Lord Mottistone, questioned whether this clause would have such an undesirable effect on industrial relations as some of us on this side of the Committee were suggesting. The people in the best position to judge that are those practitioners who are members of the Institute of Personnel Management. The view of that institute is that another round of major union legislation, including in particular this clause, would prove to be inappropriate, counter-productive and unnecessarily controversial. It was that theme which my noble friend Lady Seear took up and I do not believe that the Minister adequately answered her question.
I also wish to congratulate the noble Lord, Lord Prior, on his maiden speech. I greatly admired the first step which he took in a step-by-step approach to union legislation. That was reflected in the attitude which my noble friends and I took in supporting the Government in the Act of 1980. As he said, this is a matter of balance. He believes that the Government have gone over the top and that by introducing this clause they are going a step too far.
Perhaps I may also mention the noble Lord, Lord Callaghan, who, like the noble Lord, Lord Prior, had not intended to speak. However, he felt obliged to intervene because of the importance of this clause in his view. He believed that it was a wrong action which the Government were in danger of taking. I do not need to remind the Committee that the noble Lord, Lord Callaghan, is a man of wisdom and experience.
The noble Lord, Lord Trefgarne, was able to quote a number of cases where it may be that the power of the unions has been abused. In the last resort—and it has been the theme of the debate throughout—it is a matter of balance, judgment and wisdom. I believe that there may be a number of Members opposite who, although they may vote with the Government tonight, will feel uncomfortable in doing so in view of the way in which this debate has proceeded. I hope that in the Division which I am now proposing some will have the courage of their convictions.
7 p.m.
On Question, Whether the said amendment (No. 17) shall be agreed to?
Their Lordships divided: Contents, 80; Not-Contents, 121.

DIVISION NO. 2

CONTENTS

Airedale, L.

Kilbrackcn, L.

Attlee, E.

Kilmarnock, L.

Barnett, L.

Kirkhill, L.

Basnett, L.

Listowel, E.

Birk, B.

Llewclyn-Davies of Hastoe, B

Blackstone, B.

McCarthy, L.

Blease, L.

McIntosh of Haringey, L.

Bottomley, L.

McNair, L.

Bruce of Donington, L.

Mason of Barnsley, L.

Callaghan of Cardiff, L.

Milner of Leeds, L.

Carmichael of Kelvingrove, L.

Molloy, L.

Carter, L.

Mountevans, L.

Chapple, L.

Murray of Epping Forest, L.

Cledwyn of Penrhos, L.

Nicol, B.

Cocks of Hartcliffe, L.

Ogmore, L.

David, B.

Oram, L.

Davies of Penrhys, L.

Peston, L.

Dean of Beswick, L.

Phillips, B.

Diamond, L.

Pitt of Hampstead, L.

Dormand of Easington, L.

Ponsonby of Shulbrede, L.

Elwyn-Jones, L.

Prior, L.

Ewart-Biggs, B.

Rochester, L. [Teller.]

Feversham, L.

Seear, B.

Foot, L.

Sefton of Garston, L.

Gallacher, L.

Serota, B.

Galpern, L.

Stedman, B.

Glenamara, L.

Stewart of Fulham, L.

Graham of Edmonton, L. [Teller.]

Stoddart of Swindon. L.

Strabolgi. L.

Grey, E.

Taylor of Blackburn, L.

Hampton, L.

Taylor of Mansfield, L.

Harris of Greenwich, L.

Thurlow, L.

Hart of South Lanark. B.

Turner of Camden, B.

Henderson of Brompton, L.

Underhill, L.

Hooson, L.

Walston, L.

Houghton of Sowerby, L.

Warnock, B.

Howie of Troon. L.

Wedderburn of Charlton, L.

Jacques, L.

White, B.

Jay, L.

Wyatt of Weeford, L.

Jeger, B.

Young of Dartington, L.

John-Mackie, L.

NOT CONTENTS

Allenby of Megiddo, V.

Faithfull, B.

Allerton, L.

Ferrers, E.

Ampthill, L.

Glenarthur, L.

Arran, E.

Gray of Contin, L.

Bauer, L.

Greenway, L.

Beaverbrook, L.

Gridley, L.

Belhaven and Stenton, L.

Grimthorpe, L.

Beloff, L.

Hailsham of Saint Marylebone, L.

Belstead, L.

Bessborough, E.

Hardinge of Penshurst, L.

Birdwood, L.

Harmar-Nicholls, L.

Blatch, B.

Harvington, L.

Boyd-Carpenter, L.

Havers, L.

Brabazon of Tara, L.

Hemphill, L.

Brougham and Vaux, L.

Henley, L.

Butterworth, L.

Hesketh, L.

Caithness, E.

Hives, L.

Cameron of Lochbroom, L.

Holderness, L.

Campbell of Alloway, L.

Home of the Hirsel, L.

Carlisle of Bucklow, L.

Hood, V.

Carnegy of Lour, B.

Hooper, B.

Carnock, L.

Hylton-Foster, B.

Colnbrook, L.

Jenkin of Roding, L.

Colwyn, L.

Johnston of Rockport, L.

Cottesloe, L.

Joseph, L.

Crickhowell, L.

Kaberry of Adel, L.

Davidson, V. [Teller.]

Killearn, L.

Deedes, L.

Kinnoull, E.

Denham, L. [Teller.]

Kitchener, E.

Dilhorne, V.

Lane-Fox, B.

Dundee, E.

Lindsay, E.

Eden of Winton, L.

Lindsey and Abingdon, E.

491

Long, V.

St. John of Bletso, L.

Lucas of Chilworth, L.

Sanderson of Bowden, L

Lurgan, L.

Sandford, L.

Lyell, L.

Sandys, L.

Mackay of Clashfern, L.

Selkirk, E.

Margadale, L.

Shannon, E.

Marley, L.

Sharpies, B.

Marshall of Leeds, L.

Skelmersdale, L.

Massereene and Ferrard, V.

Stockton, E.

Merrivale, L.

Strange, B.

Mersey, V.

Strathclyde, L.

Morris, L.

Sudeley, L.

Mottistone, L.

Swansea, L.

Munster, E.

Swinfen, L.

Napier and Ettrick, L.

Swinton, E.

Nelson, E.

Terrington, L.

Newall, L.

Thomas of Gwydir, L.

Norrie, L.

Trafford, L.

Nugent of Guildford, L.

Tranmire, L.

Orkney, E.

Trefgarne, L.

Orr-Ewing, L.

Trumpington, B.

Oxfuird, V.

Vaux of Harrowden, L.

Peyton of Yeovil, L.

Vinson, L.

Rankeillour, L.

Ward of Witley, V.

Rees, L.

Westbury, L.

Reigate, L.

Whitelaw, V.

Renton, L.

Wise, L.

Renwick, L.

Wolfson, L.

Rugby, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
The Earl of Dundee: The Committee may feel that we have reached a suitable moment at which to break in order to return to the subject in an hour's time, at 8.10 p.m. If that is so, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Betting, Gaming and Lotteries (Amendment) Bill [H.L.]
7.10 p.m.
Lord Newall: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Newall.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE EARL OF LISTOWELL in the Chair.]
Clause 1 [Charges to bookmakers on licensed tracks]:
Lord Newall Lord Newall moved Amendment No. 1:
Page 1, line 8. leave out ("seventy") and insert ("fifty-five").
The noble Lord said: I beg to move the first amendment set out on the Marshalled List. As is the custom, I must declare my interest as chairman of the British Greyhound Racing Board. When I moved the Second Reading of the Bill I indicated that it related entirely to an amendment to Section 18 of the Betting, Gaming and Lotteries Act 1963, which was concerned solely with the sport of greyhound racing.
That provision, which was in the 1934 Act, provides that an on-course bookmaker at a
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greyhound racecourse need only pay a maximum of five times the price of the admission charge for the enclosure in which he operates.
However, many bookmakers have seen the injustice of such a low figure, which produces only £10, or less, per bookmaker for each race meeting. So they had been making voluntary payments. Those bookmakers are of course extremely concerned with the redevelopment of the greyhound racecourses which is now taking place. Approximately 50 greyhound racecourses have closed since 1961 and, regrettably a further one has closed since my Second Reading speech. Greyhound racing is obviously unable to earn the profits which are commensurate with the capital value of the land where those racecourses are situated, so consequently they are being redeveloped for other purposes.
This amendment will now provide for the proposed multiple of 70 to be reduced to 55, which is equivalent to the total sums presently being paid by way of statutory and voluntary payments by all bookmakers at all racecourses. The average price of admission is about £2 per meeting. The multiple of 55 will represent the maximum that can be charged. Naturally it is up to the individual managers to set any lower fees should they wish to do so, having regard to local circumstances.
Perhaps I should mention that greyhound racing does not enjoy the benefit of the support of a levy on off-course bookmakers, and therefore it can only stand or fall on the commercial arrangements it can make to promote the sport on the track and keep it at the highest possible standards.
The purpose of the amendment is to embrace within a formula the present statutory and voluntary arrangements, which are clearly unsatisfactory from any point of view. It is quite wrong that a racecourse promoter has to rely on voluntary payments which can and are withdrawn at bookmakers' whim. It is much better to recognise that there should be proper and open funding by bookmakers whereby they can be admitted to a racecourse and operate their business. The old multiple of five times is clearly outdated. The amended multiple merely recognises the present structure which bookmakers themselves have agreed. I beg to move.
Baroness Ewart-Biggs: The noble Lord, Lord Newall, has put forward a good case for the amendment; and after having thought about it, I give it my support. On Second Reading the noble Lord made the case that the sport needed extra funding. He has now reassessed that need even more by quoting how many racetracks have had to close on account of the shortage of such funding.
He also made the point, which most impressed me, that as many as 4 million spectators attended greyhound racing in 1987, which is slightly more than the number of people who went to horseracing. That figure is one that is not generally known. As an industry greyhound racing employs over 5,000 people; and so, as the noble Lord said, this is an important matter in that their jobs are at stake.
On Second Reading there was concern when the noble Lord proposed to increase the statutory

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multiple charge to bookmakers from five times to 70 times the public admission charge. There was worry that it was a rather steep increase and also that the noble Lord seemed to have made a rather arbitrary decision because that figure was not based on anything in particular.
However, the noble Lord has now suggested a multiple of 55 times the normal admission price. That figure rests on much firmer ground because it represents, as he said, more or less the present nationwide voluntary contribution to the tracks made by the bookmakers. It is therefore clear that the bookmakers realise the necessity for additional investment into this popular sport. I hope that they will accept this new formal measure which will ensure that the sport continues.
There is a worry that the noble Lord does not appear to have reached definite agreement with the National Association of Bookmakers. However, as I said, I hope that as they have paid this sum voluntarily up until now, they will accept the new payment in a more formal way.
The Earl of Arran: As the noble Lord, Lord Newall, has explained, at present bookmakers pay voluntary contributions to the management of greyhound tracks, in addition to the charges made under Section 18(1) of the Betting, Gaming and Lotteries Act 1963. Like my noble friend, we understand from the British Greyhound Racing Board that the effect of the amendment would be to produce overall an income for the managements comparable in amount to the total of the voluntary payments and the current changes combined. By contrast, Clause 1 as it stands would enable the managements to require bookmakers to pay more than they do at present.
As I said during the Second Reading of the Bill, the Government would favour a reform of the current arrangements, should that be agreed by the parties concerned. As we understand the position, the amendment, like the clause which it would amend, is not agreed by the bookmakers. Whether the reform which the amendment proposes is right is a question for Parliament to judge. For our part, we are ready to accept the amendment, if all sides of the Committee are content.
Lord Newall: I am grateful to the noble Baroness and to my noble friend for their remarks. I do not think that there is any point in going any further. There is nothing more to be said. Therefore I commend the amendment to the Committee.
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Lord Newall Lord Newall moved Amendment No. 2:
After Clause 1, insert the following new clause:
("Amendments to maximum charge.
.—(1) The Secretary of State by order made by statutory instrument, further amend the said section 18(1) by deleting "fifty-five" and substituting such multiple as he may determine.
(2) A statutory instrument containing an order under this section shall he subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Lord said: In view of the previous amendment just passed, it seems wrong and
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unnecessary to continue to bring small Private Members' Bills to this Chamber in order to amend parts of this long and complicated Act.
The controls which were imposed in 1934 are to a large degree out of date and unnecessary in 1988. There is a strong feeling that the Secretary of State should have the power to alter Section 18 if he thinks fit so to do. I can see the day when he may be persuaded to abolish Section 18 altogether. In my view that would be a satisfactory state of affairs. It would enable the organisations running greyhound racing—and probably horseracing too—to get on with their job without many controls. However, I gather he is not prepared to do so at present. But, if he is unable to do so now, I should like him to have the power to make changes to avoid the necessity of having further Bills.
It may be felt invidious that the Government should have to intervene at all in the marketplace. However, they have already done so by passing Section 18 and controlling the negotiations in regard to both dogs and horseracing; so there is a precedent in this. I hope that the Government will see a possibility of allowing the amendment to go through. I beg to move.
The Earl of Arran: We cannot commend the new clause to the Committee. I take the argument to be that it could be easier and better in future to vary the multiple of the ordinary public admission charge which bookmakers may be required to pay by order than by primary legislation. We do not believe that to be so.
As a preliminary observation, we should say that the clause seems defective technically. The drafting of subsection (1) is such that the power to make an order could be exercised only once. The power would be spent once an order substituting another figure for that of 55 had been made. We doubt whether that is the intention of my noble friend, Lord Newall. But even were that defect remedied, the order-making power would be beset with difficulty.
That is because it provides no safeguard or guidance as to the circumstances in which the Secretary of State should exercise the discretion to vary the multiple. It is our clear view that a necessary condition would need to be that the interested parties were agreed that a variation was desirable and on what the varation should be. It is extremely difficult to envisage on what other criterion my right honourable friend the Secretary of State could decide whether or not to make an order and justify that decision to Parliament. The new clause does not provide for this prior agreement between the operators of greyhound tracks and the bookmakers; and it would be wrong for my right honourable friend otherwise to determine that he would not make an order in the absence of such an agreement. If he did he could be judged to have fettered his discretion.
If on reflection my noble friend wished to propose a power the exercise of which was explicitly contingent upon a prior arrangement with the interested parties, we should be ready to consider it and give our views by the Report stage.
Lord Newall: I am most grateful to my noble friend for explaining his reasons. The amendment gives the Secretary of State the power to lay an order under the Bill. I gather from legal advice that the power to do something means power to do it from time to time. That is according to strict legal interpretation. Therefore in my view the Government are incorrect to say that the Secretary of State can only exercise it once; he can exercise it more than once.
On my noble friend's second point, the Secretary of State is always entitled to consult whomsoever he wishes. It does not have to be put into the Bill. Sometimes persons to be consulted are written into a statute but more usually they are not. I can find no precedent for naming the parties to be consulted. Of course even if he has consulted people and does not come to a decision, he may or may not wish to alter the figure. I merely want the Secretary of State to have the power.
Does my noble friend accept the principle of using secondary legislation by an order rather than heavy-handed primary legislation to amend the Act if the multiplier becomes out of date? That seems to be a much more expedient way to go about it. In my experience the wording is similar to that of other Acts which give power to the Secretary of State. Will my noble friend answer that point?
The Earl of Arran: My noble friend has suggested that there is a precedent for an order-making power contained in Schedule 5 to the Betting, Gaming and Lotteries Act 1963. With respect, I do not think that the analogy holds. Schedule 5 enables my right honourable friend the Secretary of State by order to vary the percentage which Tote operators may deduct from bets laid with them. That power has been exercised following representations from the track operators, but the circumstances of that power and that proposed in the new clause differ in the important respect that bookmakers are hardly likely to object to requests for increases in the percentages taken from bets laid with their competitors. In contrast, bookmakers could be expected to want, and deserve, an explicit say in charges levied on them. I must repeat that if my noble friend wishes to propose a power the exercise of which was explicitly contingent upon the prior arrangement of the interested parties we should be ready to consider that and give our views by the Report stage.
Lord Newall: If the Government always tried to get both parties to agree, half the legislaton on the statute books would not be there. That makes it clear to me that there are many times when the Government will not make a decision. However, in view of what my noble friend has said, I am prepared to withdraw the amendment on the understanding that after further legal advice and discussions with the appropriate bodies we may bring forward an amendment in a slightly different guise on Report. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Remaining clause agreed to.
House resumed: Bill reported with an amendment.
Lord Hesketh: I beg to move that the House do now adjourn during pleasure until 10 minutes past eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.26 to 8.10 p.m.]

Employment Bill
House again in Committee on Clause 3.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 18.
Page 4, line 50, leave out ("such").
The noble Lord said: No doubt over the dinner break the Government have been reflecting upon their victory on the major matter which the Committee was debating on the last amendment. We hope that the Government will reflect further and we therefore put to them this much more refined amendment. I shall speak, if I may, to Amendments Nos. 18 and 19 together.
The fact that the clause, as the House has now seen fit so far to approve it, places limitations of unjustifiable discipline even in a case where a member refuses to join his fellows after a majority vote in industrial action does not in our view necessarily carry the rest of the paragraph to which these amendments relate—that is, Clause 3(3)(a) in its last two lines. The clause refers not merely to someone who fails to participate in the industrial action but to someone who indicates opposition to, or lack of support for, a strike or industrial action. We ask the Government to consider the rider to that latter phrase that the stike is not supported by a majority in a ballot. For this reason, if it be accepted that the individual is not forced to join it, it does not necessarily follow that, without any consequences in the union which he has chosen to join and chosen not to leave, he should be able to do anything and everything by way of opposition and expressing lack of support.
It surely does not follow that a dissentient member, being outvoted by 99 per cent. of his colleagues, should escape from what are still the lawful union rules. If he goes on television and blackens their character, if he discloses confidential union business in terms of his indiscriminate opposition to what every single one of his fellow members except him has decided to do, how does it follow that all forms of opposition should exclude the union rules?
In that respect, with a view to the Report stage as much as to the Committee stage, I wish to put two specific questions to the Minister. First, what is the relationship between "opposition" in this paragraph and the assertions in paragraph (c) to which we come later? Do any limitations connected with the assertions in paragraph (c) apply, as surely they should, to assertions by way of opposition in paragraph (a)? Secondly, and I do this because I do not wish to interrupt the Minister in full flow—No, that is not true. Of course I wish to interrupt the Minister in full flow, but I thought perhaps it would not be sensible or polite to do so—
Lord Boyd-Carpenter: Nor wise.
Lord Wedderburn of Charlton: It would not be sensible or polite or even wise, as the noble Lord, Lord Boyd-Carpenter, says. I should have had no hesitation about interrupting the noble Lord, Lord Boyd-Carpenter, but I did not wish to do so with the Minister.
The noble Lord referred to the position in other countries. I think he mentioned certain other civilised countries where, he said, members of unions did this kind of thing. We were then debating the refusal to join in lawful union action. He said that in those countries the trade union had no right to discipline, or I think he said no power to discipline, but I shall read Hansard to see which it was. I should like to know which countries and what are the laws which limit that right. I think the Committee is entitled to know that, and I say it with no disrespect to the Minister, because, if I may say so, he contravenes this proposition less than some of his colleagues. I think it is not right that this House as a legislative body should be given these vague illustrations without a clear and exact designation of the laws to which they refer. Those are two questions to the Minister, one about assertions, the other about foreign countries.
I suspect that if one wanted to make a judgment based on comparative labour law in other European countries, one would find that our amendment would be regarded as not particularly objectionable in the vast majority of such countries. I am prepared to spell out what I think that vast majority is. I do not think it would be objectionable in France, Italy, Sweden or most of the major industrial countries.
What this amendment says to the Government is, "All right, you have won for the moment". One of my noble friends, Lord Callaghan, said that it would probably not last forever. The amendment suggests: "You have unwisely won your major battle on this subsection. But for the second half of it, should you not reconsider? Would you not put some limit on the type of opposition to which the lawful union rules would not apply?" I beg to move.
8.15 p.m.
Lord Trefgarne: We debated the principle of the proposition behind the noble Lord's amendment at length before dinner and your Lordships reached a conclusion on it. I do not wish to weary your Lordships unduly by repeating all the arguments that I put forward then. Nor would I wish to draw further on the great reservoir of cases that I have in my brief explaining the background as to how the Government came to this view. The great reservoir of cases of abuse of their position which the trade unions have, I fear, to some extent—
Lord McCarthy: Would the noble Lord allow me to intervene? Could he pass us this reservoir through the usual channels? We should love to see it.
Lord Trefgarne: I think I should unduly detain your Lordships by dilating on that. However, I shall be very happy perhaps at the next stage, when no doubt the noble Lord will table more amendments, to deploy one or two more of these black examples for the noble Lord's delectation.
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The noble Lord, Lord Wedderburn, has asked me some serious points particularly about the countries to which I referred at an earlier stage where the position is as I described it. Rather than wade through my brief and find that information, I wonder whether the noble Lord will allow me to write to him with it. I should be happy to do that in good time for the next stage. I hope on that basis that the noble Lord will not wish to pursue this any further.
Lord Wedderburn of Charlton: I am a little taken aback because, with the greatest respect to the noble Lord, I do not think he has addressed my amendment. I am very happy that the Minister should write to me with the specific laws of specific countries. I hope that he will also send me and my noble friends at least an abstract of this reservoir of factual instances upon which he is relying. If I may say so, to have a few more presented when we come to the Report stage will not be entirely satisfactory, especially if they are presented in a similar fashion. I happen to know about the case of Mr. C, and would have a certain amount to add to what the noble Lord said. Although I am not suggesting that he misrepresented it, I think there are further features to it. But if they are presented anonymously it makes things rather difficult.
I suggest that the Minister sends to Members of the Committee who are interested or, better still, puts in the Library the countries and the reservoir of instances that he mentioned. The Library is big enough. It will take it all, however large the brief may be. We should be most grateful if the Minister would place it there.
Frankly, I do not think that the Minister addressed the amendment. Let us be quite clear what I am saying. Even if the union cannot apply its discipline to a member who fails to join industrial action after a ballot which decided in favour, there should be cases where the union is permitted to apply its lawful rules which are voluntarily accepted by that member who is in the minority. In that case the union must be allowed to apply its discipline to opposition, at any rate, of certain kinds.
The Minister did not address himself to that point at all. He seemed to think that the first half of the paragraph carried the second. As he did not answer the point, we shall consider ourselves entitled—unless, on reading his remarks, we think otherwise—to return to this matter on Report. I think that that is normal practice. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 19 to 21 not moved.]
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 22:
Page 5, line 5, at end insert ("where that requirement was imposed on a date before the commencement of the strike or other industrial action to which the failure relates").
The noble Lord said: This is an even more modest amendment. I cannot believe that the Government will not at least answer it or say something about it. However I should not like to bet on that.
The Government wish us to accept the concept of the privilege of the dissenting individual member. It

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is often said in government circles and so often repeated in another place that the individual is paramount. By that the Government mean that the individual is paramount over the union. He is not considered ever to be paramount over his employer. If he takes priority even over his own contracts this is a very special doctrine of freedom of contract. I hope that the Committee will notice that. The doctrine is well known in the writings of a particular ideology.
But the Government consider that where one has anything to do with a trade union one can break the rules. The Government think that the individual should be in that position. They supplement that idea in this clause. The idea is quite straightforward. The Government propose that a union cannot discipline a member where the act required of him is one which would require him to contravene a term of his employment contract. Just to be sure that the Government have covered every possibility, the clause further states:
"or any other agreement between that individual and a person for whom he works or normally works".
We say that if the privilege goes that far—the major debate before dinner carried the Government largely over the hurdle and we must accept that—then there is a further point. Let us suppose that that requirement or obligation arises not under the individual's normal contract of employment or under an agreement which already exists at the time of the strike but because the employer says, after the strike or industrial action commences, "I want your help to beat the strike." That is a strike in which the individual concerned voted with his fellows in a ballot and was beaten.
The employer says to the individual, "Come on. Move over from the usual work you do." Perhaps the individual concerned is a foreman. One can imagine that in certain areas it would be a rather grave breach of union rules for a foreman to go back on a bench or to do other work normally carried out by employees. The employer may say to that individual, "Come on. I shall pay you another £50 a week if you keep it going for me on the bench." Let us assume, not extravagantly, that the individual concerned is a union member. Many people retain union membership. I do so myself and I was glad to hear the Minister say earlier this evening that he also did. That makes at least one bond between us. If the union rules prohibit this manifest strike-breaking, how can the Government deny the union rules their application?
Under the clause as its stands the employer could even say to a worker, "You are a member of the union. You have the branch minutes. Let us have a look at them. I shall pay you £50 a week for every minute book you bring in." The employer would make it part of the contract of employment because he perhaps read law at the London School of Economics and therefore keeps up with his legislation.
Why should that not happen? The Government say that that is all right. There is nothing that the union can do about that. It cannot discipline the individual involved at all. There is a point at which the
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unfairness becomes so extreme that one wonders what more one can say. On all the Government's assumptions and accepting all that has gone before tonight, however much, as Lord Diplock once said about certain labour laws, they "stock in my gorge", surely this little amendment, which states that after a strike starts individuals must stay where they are and that any new obligations they take are not within the purview, can be accepted. I beg to move.
Lord Graham of Edmonton: I very much hope that the Minister will accept this as being a very modest amendment. No doubt the noble Lord, Lord Boyd-Carpenter, will recognise that perhaps this is the appropriate moment at which I ought to have raised the issue that I inadvertently raised earlier. I look forward very much to hearing his observations now as he was inhibited about making them earlier.
The issue is a very simple one. If a union is going to be legally constrained from fulfilling its own rules and the situation arises whereby a member of a union, in effect, has turned coat, has been bought or has engaged in activities which are blatantly contrary to the rules, the Minister is inviting us to say that there are different rules for all kinds of organisations.
I seem to recall his earlier pleading in aid of, ludicrously, a golf club. The Minister said that a golf club has certain rules. I recall within the past day or two a report in the newspapers of a lady who wore shorts at the golf club. She caused a great deal of distress. The rules of the golf club decreed that she could not be a member of that club. In other words apparently a golf club can have rules which it can apply. The lady took the case to court and lost. The club was right. Therefore, a golf club is apparently able to exercise such a power.
I seem to recall that the lady in question set a great deal of store upon the value to her social life of membership of the golf club. But apparently a trade union is not able to exercise its own rules. That goes against the basic tenets of democracy and it certainly goes against what I would call justice.
Members opposite by the weight of their vote may very well impose their will and they may consider that they know what they are doing. I believe that the Government are bringing the term "democracy" and the ability of the leadership of a union to be seen to have some power, some status and some standing—not only in the union but in the community locally and nationally—into disrepute.
A great deal has already been said about balance and fairness. I honestly think that the Government have an opportunity in this modest way to recognise that if they are determined to strip away from a union executive its right not just to interpret its rules but also to apply them, then it is a very dangerous road down which they are going.
Lord Renton: I hope that the noble Lord will not mind if I attempt to answer his point about the lady and the golf club, which is quite different from the position of a union member.
Lord Graham of Edmonton: I agree.
Lord Renton: I am glad that the noble Lord acknowledges that. She does not have the same loyalties to a family and she is not dependent upon membership of the golf club for her employment or for her livelihood. She is not performing a service for children as teachers are and as nurses may do. These examples could be multiplied by others. That is an entirely different situation and, if I may say so, it is a false analogy.
8.30 p.m.
Lord Boyd-Carpenter: Perhaps I may add to what my noble friend Lord Renton has said. The analogy with the golf club and the charming lady in shorts is a false one for this reason. Trade unions are bodies given substantial privileges by law, the major one being not to be liable to be sued in tort in respect of industrial action. When you have bodies such as that which are favoured by the legislature with privileges of that sort, it necessarily goes with that that they must be subject to rather more obligations than bodies such as golf clubs, which have no such privileges.
Lord Dormand of Easington: The question of other loyalties is raised from time to time, and indeed the two Members of the Committee who have just spoken have said that. They have mentioned, entirely properly, the responsihilty of an employee to his family, the teacher to his pupils and nurses to their patients. One could continue with such illustrations. However, perhaps Members who have spoken will feel that this is a legitimate point. The people in all of the categories which we have mentioned are aware on joining a union that any action, whether industrial or of any other kind, will almost automatically mean that their charges (be it family, pupils or patients) will be affected. In other words, joining a union is a premeditated act. They know that that will happen.
In those circumstances, it seems to me that there are two alternatives although it is often said that there are no alternatives. The first is not to join a union; secondly, there is always the possibility of joining a union which does not strike. I mention the teachers' union, the PAT, which, as the Minister will know, will not strike in any circumstances. Will Members opposite not agree that that is a factor which must be taken into consideration by people when they join a union; and therefore when action is taken they ought to be a party to it on the strength of arguments made many times from these benches?
Lord Boyd-Carpenter: The noble Lord says that people do not need to join a union. That is not always true. From a practical point of view, even with the reductions which I am glad to say are now being made in the closed shop, there is still a considerable number of cases where a man simply is not going to get a job if he is not a member of a union. Therefore it is quite wrong and quite inaccurate to say that a man does not have to join a union; he may well have to.
The second point is that I do not believe that when a man joins a union he is saying: "Right, I am prepared to put the interests and wishes of the union and its well-being before all other rights and interests
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in which I am involved. I will be prepared to put the union before my wife and family; I am prepared to put the union before my employer; and I am prepared to put the union before those whom I serve at work". I do not believe that the ordinary man on joining a union takes that view at all.
Lord Dormand of Easington: In view of the kind of case put forward by the noble Lord and the kind of members we are talking about, perhaps he will accept that when an increase in wages, shorter hours or longer holidays are negotiated, those members will not say to themselves, "I am not fully behind the union in certain circumstances; I had better not accept the advantages which the union has just negotiated".
Lord Boyd-Carpenter: The noble Lord says that. Of course that is a wholly unreal approach and he knows that perfectly well. He knows that if an employer, for whatever reason, offers increased wages, it is likely that the ordinary human being will take them. That is nothing whatever to do with being prepared to give the union and its activities priority over the other interests, duties and obligations which he has. The noble Lord knows that perfectly well.
Lord Trefgarne: Perhaps I may say again that I do not intend to run through all the arguments which we deployed before dinner on the general issue. However, I shall address the amendment moved by the noble Lord. Frankly, the logic of the amendment is rather clearer than that of some of the earlier ones, but I am afraid 1 still cannot agree with it.
All employees who repudiate their employment contracts by taking strike or other industrial action face dismissal. That is so irrespective of when they started work. Protection against union discipline, therefore, equally needs to apply irrespective of when the individual started work. Employers cannot be expected to keep open for an indefinite period the jobs of those who have chosen to break their employment contract. Such a requirement would be likely to turn a shut-down into a permanent closure.
It is an employer's right to offer jobs to whomever he wishes, subject to the legislation on sex and race discrimination. On occasion he may need to recruit employees to counter the effects of a dispute. Any such employee is entitled to expect protection from union discipline for choosing to do a job offered to him.
It is not the job of the Government to intervene in individual disputes but rather to establish a sound legal framework in which employers and employees can shoulder their own responsibilities. The independent Advisory, Conciliation and Arbitration Service, for example, stands ready to provide assistance to the parties when there is any dispute. A question of whether to take industrial action is for employees to decide. Strike action has always put jobs at risk, either immediately or in regard to the longer-term damage which it does to the company.
I believe that the Government have now made clear the thrust and the logic behind the propositions contained in Clause 3, and I hope that the Committee will agree to it without the amendment which is proposed.
Lord Wedderburn of Charlton: This has been, for me at least, a more important debate than I had expected. Not only has it revealed the Government's opposition to the amendment, which I expected, in that it has revealed that they mean to have their full fill here; the clause has got the unions and they know it. It will be effective and it will make things difficult. It will harass them. They mean to have the lot. I did not expect anything else.
However, I did not expect one or two other points to be made in the way they were. For example, the noble Lord, Lord Boyd-Carpenter, said that the trade unions had the privilege of not being sued in tort. With respect, that privilege was repealed by Section 15 of the Employment Act 1982. There have followed six years in which that has not been true.
Lord Boyd-Carpenter: Of course the noble Lord is right about that section. But there still remains very substantial privilege as regards industrial action and being sued in respect of it. The noble Lord knows that as well as anyone.
Lord Wedderburn of Charlton: I know nothing of the kind. With great respect, privilege I know not for the union because it now stands with other defendants. That is not the way I would put it in any case. There are a few areas in primary disputes where the so-called immunity, which the noble Lord, Lord Boyd-Carpenter, would, I imagine, call a privilege, from the liability of common law still applies to the union or to any other person in the land who induces, furthers or contemplates a trade dispute. Perhaps on some other occasion we can debate just what that area is. With great respect to the noble Lord, in view of the way in which he originally put the point, I think that perhaps his view is not entirely coincidence in view of the current state of legislative play.
The more important point is that made by the noble Lords, Lord Boyd-Carpenter and Lord Renton. I shall not follow into the area of golf clubs, although I say to Members of the Committee that I know of certain families and other people who feel just as strongly about their loyalties to the golf club as some do about trade unions. However, I shall keep to the matter of the unions.
It is said that a golf club is different because you are dependent on trade union membership for employment. That is true in only two situations. One is where there is a union membership arrangement, some kind of closed shop or union security, the enforceability of which the Government are removing with this Bill. The second, which is the one to which I think the noble Lord, Lord Boyd-Carpenter, might be referring, although it was not clear to me, is where the employer decides to hire only non-unionists. It was curious that in the debate on this very Bill in another place the Governnment made it absolutely clear time and again that they were not placing any limit upon the discretion of employers as to whom they should hire. I imagine that the second situation is not objectionable to the Government and they are removing the first. It baffles the imagination how that is a justification for this type of clause.
A further point came up, of which the Government should be warned. My noble friend Lord Dormand
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raised the question of people who took scabbing in strikes to the extent of helping the employer to defeat the strike for extra pay. One could say to the Government that that is likely to affect industrial relations subsequently, and I am not sure that many employers would take the position that the Government have adopted. Most employers who know that they have to live with their workforce would not be very pleased if this happened and it could happen without senior management knowing. I am not sure that they would always want the union discipline rules to be put aside.
Be that as it may, my noble friend asked why the free-rider who does that kind of thing should benefit from collective bargaining. It was said that every sensible employer applies the benefits of collective bargaining to all employees within the range of the agreement. That has been the British way and it has been the British trade union way.
If one looks ahead—if the Government can look ahead—it should not be thought that that situation will continue for ever. I do not predict it, but this sort of legislation could produce a very undesirable drift towards bargaining for members only. With competitive unionism and bargaining for members only the Government would produce an even worse jungle than in some places now exists partly as a result of their legislation and partly because of much more important economic factors. One should never overrate the importance of law or, come to that, of lawyers.
It seems to me that no reason has been given against this amendment except that the noble Lord, Lord Trefgarne, says that all those on strike must face the possibility of lawful dismissal. As the law stands he is right. But that is only right because the Government will not change the law. That is only right because they have made the law on unfair dismissal worse. They seem to regard it as law carved upon tablets of stone that every striker can be dismissed. Now they want it carved on another bit of stone—against the strikers, the union and the majority—that the minority can be protected. I come back to my first words, even this tiny amendment is too big for the Government to swallow. It is quite extraordinary and I hope that the record will show just how the Government replied. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.45 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 23:
Page 5, line 41, leave out ("if it is shown") and insert ("where")
The noble Lord said: In speaking to Amendment No. 23 I believe that I can speak—and this is a great pleasure—to Amendments Nos. 24, 25, 26, 27 and 28.
This amendment concerns another paragraph in the same subsection which perhaps we might call the "assertions" paragraph. When the Government first drafted the Bill they said that a member who made any assertion that the union, or trustees or a union representative—I shall refer to the union—contravened or proposed to contravene any rule of the union, agreement or rule of law (in other

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words, to act unlawfully) should not be subject to union discipline.
An extraordinary thing happened at the Committee stage in another place. It was pointed out to the Government that the clause as drafted allowed the member without fear of unjustifiable discipline to make assertions that were false or in bad faith or to make defamatory assertions; there was no limit. An extraordinary thing happened; the Government made a concession. I am hoping that tonight the Minister will follow that great precedent of his predecessor in another place and make a further concession.
The concession related to subsection (4) and it is to that subsection to which the list of amendments is directed. Perhaps I may summarise them briefly for the Committee. As it stands the subsection means that the union has to show the reason for the disciplining and that there was no other reason for disciplining the Member. It is not entirely clear in paragraph (a) where the burden of proof lies, but I put that aside. That should cause no difficulty in the normal case. The real problem lies in paragraph (b). On the basis of the Government's draft it seems to me, and the Minister will correct me if I am wrong, that the union must show that the assertion was false and that in making it or assisting someone else to make it the member acted either in the belief that it was false or in bad faith. The union must show that he is a fraud.
I say that that is the wrong burden of proof, or at any rate it is a burden of proof which is placed too heavily solely on the union. Therefore our amendment—which I hope will do the job that we intend but the Minister may perhaps dislike a couple of the words, as I do myself now, but the point is to put the principle to the Government—provides that if the union cannot show that the assertion is false and the member is a fraud then he must show that at the time of making the assertion at least he had reasonable grounds for saying that it was true.
I keep moving more and more modest amendments. The difficulty is that instead of growing higher, as should be the case when one is more moderate, my spirits get lower. I beg the Minister to consider whether some obligation should not be placed upon the person who is in this extraordinarily protected position that at least he should show not that what he said was true but that at the time that he said it he had reasonable grounds for believing it to be true. If the Government did that, at least it could be argued that they were protecting the genuine case. If the Government do not do that the fraudsters are protected. As any counsel knows, to prove that someone has said something false and knew it to be so is the worst burden of proof in the world to have to take on. That is what the clause makes the union take on under paragraph (b).
With a flicker of hope, I ask the Minister to make this paragraph cover the genuine case and not cover the fraudster. I beg to move.
Lord Renton: The situation created by this group of amendments is rather interesting from the legal point of view. As I read it, under the clause as it stands the
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burden of proof will be upon the trade union throughout. Indeed, it is quite clear from the amendments which the noble Lord has moved that he intends the burden of proof to be shifted not only in relation to Amendment No. 27, which to his mind introduces a new factor (with which I shall deal in a moment), but to be shifted altogether. If he had not attempted to move the burden of proof by means of Amendment No. 23, we should have had the rather strange position that the burden of proof would be upon the union throughout, except with regard to the factor raised in Amendment No. 27, and that on that factor the burden of proof would be upon the member of the trade union.
That is altogether a rather confused situation, but in the statute we must get it perfectly clear where we expect the burden of proof to lie. If in line 41 the words "if it is shown" are omitted and we replace them simply by the word "where", we are not imposing a burden of proof on either party, as I understand it. We are simply leaving it to the court to decide by means of an objective test.
However, courts like to know where Parliament thinks that the burden of proof should lie, and in nearly all cases that is made abundantly plain. I am very doubtful whether it is right to destroy the burden of proof requirement entirely and to have no burden of proof. That is the first difficulty that I find in this group of amendments.
However, even if that were the case, I am not quite sure that Amendment No. 27 adds a new factor. In the Bill as it stands we find the fact that,
"that assertion was false … or … that individual acted either in the belief that it was false or otherwise in bad faith",
is very close to stating that he cannot show that he had reasonable grounds for believing it was true. In other words, as I understand it, we are doing a little hair-splitting. If I have misconceived the position, perhaps I may be forgiven because it is a slightly confusing one.
Lord Trefgarne: I was sorry to hear just now from the noble Lord, Lord Wedderburn, that his spirits were beginning to flag because of these matters, particularly in the context of this amendment. As he rightly pointed out, during the proceedings in another place the Government made a significant concession, and the clause as presently drafted represents that concession.
My honourable friend the Parliamentary Under-Secretary of State accepted during the Committee stage in another place that individuals who had acted in bad faith or maliciously should not be protected from union discipline, and he introduced a government amendment to address that point. The Government, however, consider it important that a union member should be able to point out that his union proposes to break or has broken its own rules or the law without fear of disciplinary action being taken against him. Protection from such discipline is essential if members are to be in a position to ensure that unions behave as they should. It must therefore be right for the burden of proof to be upon the union to show that a member has made a false assertion or has otherwise acted in bad faith.

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The clause as it is presently before the Committee represents, as I have said, a significant concession by the Government. I am afraid that I cannot agree that we should go further, and I hope that the noble Lord will not press us to do so.
Lord Wedderburn of Charlton: The nature of the Minister's reply has brought up my spirits from any point of flagging, because it is really quite absurd. However, perhaps I may first say something in regard to the remarks made by the noble Lord, Lord Renton. I think that the noble Lord appreciated that when I said that I was not entirely happy with the wording of the amendments, my unhappiness was concerned with the point about the burden of proof. I accept that there could be better drafting, as he said.
However, the amendment was drafted in the short compass that it took on the normal assumption that he who asserts must prove. As the Bill stands, it seems as though the burden of proving everything lies on the shoulders of the union —that is what the Minister seemed to say—although the wording even now is not wholly clear.
I part company with the noble Lord, Lord Renton, in saying that, although what the Minister calls a significant concession was made in another place, that concession was simply that the unjustifiable discipline doctrine should not apply if it turned out and could be proved that someone had been telling lies. For the Government to regard as a significant concession the fact that their doctrine should not apply to liars hits a new low in government standards. I say that quite frankly. At least that is my view.
Having obtained that concession, the question that was put by the noble Lord, Lord Renton, then arises. He said that the trade union should prove that the allegation was false. I ask the noble Lord to consider with me the real situation. Obviously there is some dispute within the union because such things always happen when tempers are hot; and when the member looks back perhaps he realises he did not mean to do what he did; we often do not.
However, the man goes on television and makes a series of charges about union officers, all of whom are honourable men. One must also remember that many of them are people who operate the branch in their own time—and we all know that if it were not for volunteers many British trade unionists would find life much more difficult. So these officials are maligned in a way in which the falsity is very difficult to prove. Indeed, by the time these statements have gone out on television and appeared in certain newspapers the next day or over the weekend—newspapers for which certain Members of this Chamber write—the damage to these individuals has been done and it is damage of the most extraordinary kind.
The Government continually talk to us about families. What about the branch chairman's wife who breaks down because of what has been said about her husband? It is said that in that kind of situation, when the union branch has its meeting, say, on the following Monday, it can take no action (which it may have full power to do under the rules) unless it can prove that the statement was false and that the
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man did not believe it. I say that that is not fair. In such a situation it is at least for him to say, "Well, I see it may not be entirely true but I had reasonable grounds to believe it at the time". That is all that this amendment seeks—nothing more than that. It does not require that he proves that it must be true. It simply says that he must show that there are reasonable grounds.
I begin to feel that I do not speak in a legislative Chamber of the United Kingdom but in an Alice in Wonderland world if that argument does not convince the Minister that this matter should be looked at again before we come to Report stage. I want him to take that example home with him tonight. The noble Lord smiles. I am afraid that I take the matter seriously. This matter concerns real branches of the union and real people. These people are individuals—just individuals who run the branch—and the man has made charges against them. They will find it very hard to find the proof that the statement was false. Surely the union's rules should then be applied.
I hope that the Minister will give us some comfort, but if he does not I shall have to beg leave to withdraw the amendment.
Lord Trefgarne: I fear that I have no comfort to offer the noble Lord. He has referred at length to the pressures that may be brought to bear on the families of trade union officials who had been wrongly criticised by a member. If we talk about pressures being brought to bear on people in the past few years we seem to have heard a great many stories of pressures not being brought to bear upon the officials of trade unions but brought by officials upon their members, particularly in some of the more bitter disputes that we have had in recent times.
I do not think that the example given by the noble Lord was a good one. I do not think that there is much merit in his amendment. The Government have moved some way toward his position and that of his honourable and right honourable friends. I am afraid that we cannot go any further and I hope that he will withdraw his amendment.
Lord Wedderburn of Charlton: Before the Minister sits down, I believe that, apart from obtaining the leave of the Committee, this may be the only opportunity I have to put a question to him. Let us assume that I accept every single case that he advances of oppression by a union of a member. How on earth does that justify the oppression of the branch chairman and his family by the member, who may be a fraud and a liar and whom he is out to protect in his clause?
9 p.m.
Lord Trefgarne: All that the trade union official has to do is to show that what the member is alleging is false. His position is then quite protected.
Lord Renton: In the course of the further interventions by the noble Lord, Lord Wedderburn, he has not mentioned the vital precondition of all this that we find in the opening words of the subsection,
"an individual who has been disciplined by a trade union".
That is the situation with which we are faced.
Lord Wedderburn of Charlton: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 24 to 28 not moved.]
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 29:
Page 6, leave out lines 5 and 6
The noble Lord said: This amendment and the amendments that follow it pose this question to the Government: what is freedom of association? That may sound a rather academic question but it is not. It is only on the basis of free association that in democratic countries organisations—whether they be trade unions, golf clubs or the myriad organisations that make up our society—can operate in the way that their members wish.
The Government know that there are ILO conventions. The International Labour Organisation Convention No. 87 on freedom of organisation, freedom of association, states in Article 3 that workers and employers shall have the right to draw up their constitutions and rules. It is a long time since our law also approached the question of organisations—as the ILO and some other countries do—by referring to organisations of workers and organisations of employers where some parity is maintained. It says that they shall have the freedom to draw up their own rules and electoral systems in full freedom, and that the public authorities shall refrain from interference which will restrict that right or the lawful exercise of it.
The Government were pressed on this matter in November and December in Standing Committee F of another place. It is interesting to note how strongly the government Ministers in that Committee firmly adhered not only to the ILO Convention No. 87 and Convention No. 98 but also to the European Convention on Human Rights and, perhaps more importantly in this respect, the European Social Charter (especially Articles 4, 5 and 6). All these go to make up an international standard which, as many Members of the Committee will know, this country did a great deal to create.
The germ of many of those standards is in the industrial relations practice of Britain—not so much in its laws but in its practice in the past. The exceptions that the ILO has come to recognise—and these the Government relied upon for their 1984 Act in terms of control of trade union elections and procedure—are if an exception is made to protect the democratic rights of members and to provide a sound administration for the members to exercise their rights.
In my submission, the Government appear to be infringing those principles in spirit and in the broad sense of free association if they say this to an organisation—I put the point very quickly. "You may adopt these lawful rules. There is no penalty in the law for having a rule, for example, that says a member shall be fined so much if he does certain things". There is scarcely an organisation in the land that does not have a rule of some such kind. However, if one says to that organisation, "You may have your rules and they are all lawful, including
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expulsion rules, but you cannot use your expulsion rule" (this amendment is about the rule of expulsion and we shall come to other rules later) "except on pain of very strong penal consequences," then one is surely breaking the principle that that voluntary association can choose its colleagues.
I am not sure that the Government have considered this aspect of the matter, because the arguments that they use lead to the conclusion that they have addressed us tonight without consideration of this point. However, sometimes their lack of consideration shows through. In another place, in order to justify this position, one Government Minister (I have the references if the noble Lord wishes them, but I am sure that he knows about the Committee stage in another place) alleged that companies could not expel members of any kind of company, be it limited by shares or limited by guarantee, and that was different from trade unions. However, that is wrong. If the articles allow it, companies, whether limited by guarantee or by shares, or indeed companies of any kind, can, as the authorities show very clearly, exercise their expulsion rules (as we would call them for a union) or regulations (as they would be called in the articles), and such limitation is placed upon them of similar kinds.
It would be quite extraordinary if one said to a company, especially a body registered as a company limited by guarantee, as a social organisation, many of which have been engaged in litigation, "You cannot exercise that rule." One may say that one cannot have certain rules and try to justify that, but, if one allows them to have the rule and then says, "You cannot exercise it except on pain of serious penalty," that seems a very stong limitation on the freedom of association.
Companies can do it; other organisations can do it. We know the Government's view on that. It is no good giving those examples because to them trade unions are special. Trade unions are unique. No power of analogy or argument drawn from other organisations ever has any impact on the Government. That we know. However, in another setting, do they not consider that this is a serious limitation on the right of free association, which they may perhaps have to consider with regard to the various international standards and instruments to which they pronounced their firm adherence at the earlier stages of the Bill in another place? I beg to move.
Lord Trefgarne: As I dare say is now clear, the Government believe that union members should not be disciplined at all for working during a strike or other industrial action or for seeking to enforce their legal rights. We recognise that unions cannot in the end be forced to keep individuals in membership any more than employers can be forced to continue employing someone. The Clause reflects these principles. It provides the individual with a right to compensation if expulsion occurs analogous to a dismissed employee's right to compensation in a parallel situation.
If we were to accept the amendment it would imply that discipline short of expulsion was in some way

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worse than expulsion itself. This might encourage unions to expel individuals whom they would previously have treated less harshly. It would also take away the benefits of union membership for those whose only crime (if that is the word) was disagreement with the leadership, perhaps on one occasion only. I do not think that that would be right.
I thought that the noble Lord might have referred to the International Labour Organisation, because I am aware that the TUC has complained—
Baroness Turner of Camden: My noble friend did.
Lord Trefgarne: I apologise; indeed he did mention it. I am aware that the TUC has complained that this provision may breach the convention. The Government are quite convinced that that is not so. We believe that the provision is entirely within our international obligations including the convention to which the noble Lord refers.
The principles of what we are seeking to achieve in the clause are very clear. I shall not repeat them to the Committee again. The amendment would to an extent undermine those principles and I cannot therefore agree to it.
Lord Wedderburn of Charlton: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 31 to 34 not moved.]
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 35:
Page 6, line 37, at end insert ("and discipline which is unjustifiable for the purposes of this section shall not constitute unlawful means for the purpose of any liability in tort").
The noble Lord said: I wish to put upon the record a clearer statement than that which the Minister obtained from Amendment No. 15. It concerns a similar point, which is that whatever the limitations on remedy and on right which appear in Clause 3, there is the possibility that a breach of Clause 3 by a union could give a third party a right of action in the High Court. I stress the word "could". I believe it is an ambiguity and that this would be another way to remove it. If the Minister will not accept this amendment now, will he please consider it before Report? I beg to move.
Lord Trefgarne: I undertook to examine a similar matter in connection with Amendment No. 15. I am happy to give the same assurance in connection with Amendment No. 35.
Lord Wedderburn of Charlton: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 36 not moved.]
On Question, Whether Clause 3 shall stand part of the Bill?
Lord McCarthy: The Minister was asked by my noble friend Lord Wedderburn to bring him some comfort; I thought he said as Chesterton said:
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"I tell you naught for your comfort,
Yea, naught for your desire,
Save that the sky grows darker yet
And the sea rises higher".
That is certainly the case in relation to the amendment. The Minister will not be surprised to learn that we oppose the Question that Clause 3 shall stand part of the Bill.
There is much to be said. We have stated our case on all the amendments which we have put down, some of which have been moved and some because of the time of night have not. Essentially our case was made in speeches in the fine debate which we had on the amendment moved by the noble Baroness, Lady Seear, and the noble Lord, Lord Rochester, where we sought to protect strike action within the context of the 1984 Act. We told the Committee that we thought it was unfair and unwise and several Members of the Committee said it was way, way over the top. But that was a general argument about the general state of the clause. On that occasion I accept that we were asking for a major change in the clause. If that amendment had found acceptance in the Committee—I would not say it was a wrecking amendment—it would have made a major change in the scope and value of the clause to the Government.
The amendments that we have moved since then have been pianissimo; they have been tiny; they have been small in the extreme. Of course we have had the usual answers that it is unnecessary, it is unacceptable or it is unclear. Sometimes it has been all three; unacceptable, unnecessary and unclear.
My noble friend Lord Wedderburn said, "Surely you can allow the unions some right of disciplining the individual who subsequently acts against the union". The Government said, "No, not under any circumstances. So much the worse for him". My noble friend said, "Surely you cannot suggest that a member of a union is free to slander, libel and villify without regard for the truth. He must have reasonable grounds". "Not at all", they said. "It will serve them right". My noble friend then said, "Surely we should observe, as we see it, the ILO conventions, the European social charter, in regard to the right to expel". They said, "Not under any circumstances. It might encourage expulsions instead of fines, which are unlawful anyway". Therefore we oppose the Question that Clause 3 shall stand part of the Bill.
Lord Rochester: As has the noble Lord, Lord McCarthy, I too have already given reason enough as to why I believe that the clause should be omitted from the Bill. I shall not repeat the reasons. It is a rotten clause and should be withdrawn.
9.15 p.m.
Lord Boyd-Carpenter: I believe that at this stage the relevant thought is that the side note to the clause is:
"Right not to be unjustifiably disciplined".
That is the essence of the clause. It is interesting to note that the representatives of the Labour Party in the Committee oppose it. In so far as one can ever deduce the thoughts of the representatives, or representative, of the Liberal Alliance, they apparently believe the same. Opinion outside the

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Committee will be that it is proper to provide that people in unions should not be unjustifiably disciplined. It is no argument for amendments to say that they are very small, as the noble Lord, Lord McCarthy, has attempted to adduce: they were very small, they were insignificant and they were wrong.
Lord McCarthy: is the noble Lord's position that the trouble with us is that we are too concerned as to whether the worker is unjustifiably dismissed by the employer; and he is too concerned as to whether the worker is unjustifiably disciplined by the union?
Lord Boyd-Carpenter: The noble Lord will realise that the first point does not arise in connection with the Bill. We are discussing the second point. It is clear that the representatives of the Labour Party believe it to be right that a worker should be unjustifiably disciplined. I believe that that will be noticed outside this Committee.
Lord Wyatt of Weeford: Despite my reservations as regards an earlier part of the clause, I believe that it is preferable to have the whole clause, even with one defect, than not to have it at all.
Lord Trefgarne: I do not have much to add to the discussion. At the end of the remarks that I made before the dinner break I said that the proposition was contained in the Green Paper published last year. It was also contained in the Conservative Party Manifesto at the last election and was approved by the electorate. It was approved by another place when it considered the provisions of the Bill. It was also approved by your Lordships' House in the Division before the dinner break and that was aimed at the principle of this Bill. I do not believe that the proposition could have better credentials and I recommend to the Committee that the clause remains part of the Bill.
Clause 3 agreed to.
Clause 4 agreed to.
Clause 5 [Further remedies for infringement of right under section 3]:
[Amendment No. 37 not moved.]
Lord Trefgarne Lord Trefgarne moved Amendment No. 38:
Page 8, line 13, at end insert—
("(3A) Where the Employment Appeal Tribunal or any industrial tribunal is satisfied, on an application under this section, that it would (but for this subsection) be required by virtue of subsection (2) above to dismiss the application, it may, instead of dismissing it, transfer the application to an industrial tribunal or, as the case may be, to the Employment Appeal Tribunal; and an application transferred under this subsection shall be proceeded with as if it had been made in accordance with that subsection at the time when it was originally made.").
The noble Lord said: I should also like to speak to Amendment No. 123. This is a technical amendment concerning the method of applying for compensation in respect of unjustifiable discipline. In brief, the amendment ensures that if an individual makes his application for compensation to the Employment Appeal Tribunal—the EAT or, I suppose, "eat" for short—and the EAT decides that the application should have been made to an industrial tribunal because the union has revoked the finding and
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reversed the penalty, then the EAT will have the power to remit that application to a tribunal. Similarly, a tribunal will be empowered to remit applications to the EAT.
Without the amendment, the EAT could only reject the application leaving the individual to make a new application to an IT. This would be unnecessarily bureaucratic and, depending upon how long the EAT took to come to its decision, could mean that the individual lost his right to apply for compensation because of the time limit specified in Clause 5(3). I believe that this is a technical clarification and correction. I am happy to give the Committee further details if it wishes, but in the meantime I beg to move.
On Question, amendment agreed to.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 39:
Page 8, line 17, at end insert ("having regard to the loss suffered by the complainant").
The noble Baroness said: I rise to move Amendment No. 39 and to speak also to Amendment No. 40, because the two amendments run together. Their intention is to ensure that any compensation awarded under this section should have regard to the loss suffered by the applicant.
In many instances it is quite possible that the financial loss will be quite small. In fact, in financial terms it could well be non-existent. We are dealing here, in the main, with individuals who have decided to ignore the union strike call despite a majority in a ballot. Presumably such people will, in most cases, have gone to work and may have done much better than their colleagues who were on strike. Some of them may possibly be much better off because they could have been doing the work of their colleagues on strike and perhaps making money on overtime which they would not normally have had.
If the union attempts to discipline those people, they are to have access to the courts and may claim compensation. It seems very unreasonable that the court should not be bound to consider what losses have been sustained by the applicant when it awards compensation. In fact, if substantial compensation is awarded under this section in such cases, it could lead to great disturbance in industrial relations at local level where the people who have actually been on strike would have lost a good deal of money while on strike in order to gain benefits for the whole of the workforce.
If this amendment is carried, we shall not need the wording set out in lines 37 to 40 since that prescribes a minimum amount. It should be open to the court to award only nominal damages if the damage to the individual has only been slight. I beg to move.
Lord Trefgarne: I believe that the Bill as drafted does exactly what the noble Baroness wishes, because as it is drafted tribunals and the EAT will be able to have regard to loss suffered by the applicant when deciding whatever amount is,
"just and equitable in all the circumstances".
That will have to take clear regard of the loss actually suffered by the applicant. Therefore, I believe that

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this amendment is not necessary. Indeed, I believe that its adoption would rather complicate the clause and I hope that on reflection the noble Baroness can agree with that.
Baroness Turner of Camden: I cannot agree with that, and I am sorry about that. I note that the Minister thinks that the first amendment, No. 39, is already covered in the legislation. I said that I was speaking also to Amendment No. 40, and if one looks at lines 37 to 40 on page 8 one can see that a minimum is specified. The subsection states:
"shall not be less than the amount for the time being specified in Section 73(4A) of that Act (minumim basic award in certain cases of unfair dismissal)".
In other words, if that still stands in the legislation it will not be open to the court to award only nominal small amounts of damages or small amounts if the damage to the individual—the financial loss—has been very small or even non-existent. Perhaps the individual may have gained financially through not having been involved in the dispute which was the cause of the original issue. Therefore, I am not happy with the reply from the Minister and would like him to speak to that amendment.
Lord Trefgarne: I apologise. I should have been rather more forthcoming on the second point because the noble Baroness is also seeking the removal of the minimum award. The minimum award reflects the seriousness of cases where the penalty has not been revoked. Unions will therefore have an incentive to rescind displinary action before individuals apply to the Employment Appeal Tribunal if they know they will otherwise be liable to pay at least a minimum award. This liability cannot of course arise until at least four weeks after declaration of unjustifiable discipline has been made by an industrial tribunal. It is important to keep the minimum award provision in place because, as I have said, that gives the union an incentive to rescind the action before the EAT machinery creaks into action.
Baroness Turner of Camden: I am sorry that I cannot agree with the Minister. It seems to me that if we have within the legislation provision for a minimum award we are removing from the courts the opportunity and the flexibility to decide on nominal amounts. That is quite unjustifiable in the circumstances. However, I shall not press the amendment to a Division at this stage but will look carefully at what has been said before Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 40 not moved.]
Clause 5, as amended, agreed to.
Clause 6 [Right to inspect union's accounting records]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 41:
Page 9, line 14, leave out ("six") and insert ("three").
The noble Lord said: We now come to Clause 6. "Accounting records" is a very wide phrase and is
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defined in Sections 10 and 11 of the Trade Union and Labour Relations Act 1974, usually known as TULRA. It is necessary to remember of course that most unions have a rule concerning inspection. The reason for that is the 1871 Act, over 100 years ago, requiring unions which registered, as most did under that provenance, to have a rule about the inspection of books and accounting records. The Green Paper took up this point saying that that requirement had been lost—which is true—in the 1970s. The Green Paper was not wholly accurate on the way it had been lost but that is another matter.
Therefore, the Government have come forward not with something like the 1871 provision, which gave unions a flexibility which is not allowed them under this legislation, but with a specific rule about inspection of the accounting records. Our amendments, in series, are meant to point to a number of these specific regulatory features which we say are unnecessarily rigid and extensive. Amendment No. 41 questions that extension.
A union is to be told that it must keep its accounting records for six years. Obviously that is related throughout the rest of the clause to the area of the obligatory inspection, if a member requires it, bringing his accountant with him. All the books and records, as we see in the clause, not merely of the union but also of every branch and section must be kept for six years. If one says that that is a hard burden on many branches that are run from home in the spare time of members and if one raises the question of whether the right to inspect is going to carry the right of a member into the branch secretary's home, one begins to see the difficulty.
This amendment asks: why six years? From debates in another place it seems to be the case that there was some analogy with company law. If there is not, perhaps the Minister will tell us where it came from. If there is an analogy—and I put it more widely—with other associations, there is only one place known to me at least where one finds a requirement for accounting records, as opposed to filed accounts, to be kept for six years. In private companies it is three years.
If one was to take an analogy with company law, perhaps one should have gone to Section 222 of the Companies Act 1985 and said that this is an analogy with private companies. Some private companies are pretty big. But the Government have chosen six years, which is the period for the public company. As regards a trades union's period of limitation for the retention of accounting records not merely at headquarters but at regional district, every single branch and section is equated with a public company. I suggest that this is ridiculous. It is ridiculous in terms of the amount of paper or technology involved. If every branch secretary had the latest word processor the number of bytes or other electronic measures that would be taken up over the six years would become rather large. It seems to me to be rather absurd.
It may be that the Minister can say that the Transport and General Workers' Union has 1½ million members—at least I hope it still has—and therefore it can be equated. I know that the Minister

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hopes that it has not, but he will see that number increase when employment improves. The Government keep telling us that employment is improving.
The Committee may wish to consider the national league for the blind and the disabled, which has 2,800 members. Why should that organisation be equated with a public company for the purpose of the six years' period, let alone the Sheffield Wool Shearers who have 17 members'? They are in. It seems to me quite absurd. We ask the Government, as we have done throughout, to justify this clause. In another place the debate on this clause left the Government exposed without the justification of even the kind of arguments we have heard this evening. I beg to move the amendment. I ask the Government: why not three instead of six years?
9.30 p.m.
The Earl of Dundee: I have listened with interest to the argument put forward by the noble Lord, Lord Wedderburn. I agree with him straightaway as regards his remarks concerning public companies. I do not believe that it would ever have been a good idea for the Government to equate the arrangements for public companies with what they have in mind in this clause. I believe that such analogies are very misleading between unions and companies. Companies and trade unions have quite different purposes and there is really no valid analogy concerning the relationship between a trade union and its members and that of a company and its employees or shareholders.
The noble Lord also said that he believed what we were proposing was going to be rigid and very difficult for everyone concerned. I cannot agree with that at all. If we consider the difficulties which will arise—namely, altering arrangements that the unions currently make— I think we agree that the difference in practice would be very little. Presumably, unions already have to keep some kind of accounting records for at least a period of one year. Many may already be using computerised systems where storage costs may be marginal once the system has sufficient capacity to keep the records. That may mean little more than a place to keep the computer tape.
In any case, it would be worth little to create a right for members if that right was severely limited by the fact that it applied only to records created in or relating to a period of less than six years. Unions with substantial amounts of accounting records will have large memberships and any additional costs which arise to comply with the duty to keep accounting records for longer than the law currently requires will translate into a very small increase in the subscriptions of the individual union member, if it is quantifiable at all in those terms.
The noble Lord asked me to say what are our main reasons for considering a particular period at all, and in this case six years. I can give an assurance to the noble Lord that we have put serious thought into this matter and our reasons for so proceeding are good ones. It is reasonable to assume that members may be interested in more than the current year's accounting records. For example, they may be seeking to
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establish how long any perceived or suspected problem in the union's affairs or transactions had existed. They might need to have access to accounting records, for example, in order to found a legal action. The period of six years, therefore, appears in Clause I because it corresponds to the period during which a court may, generally speaking, entertain an action rather than rejecting it on the ground that the period of time between the date of the complaint and the commission of the wrongful act is too long. With those reassurances, I hope that the noble Lord may see fit to withdraw his amendment.
Lord Wedderburn of Charlton: Curiouser and curiouser, although I share the ground that the noble Earl offered me. I accept that there is no real analogy between the command structure of a company and the democratic association of a trade union. That is why I would be surprised if the Government had made an analogy here, just as there would be no analogy between company law and trade union law if they enact this clause, because the shareholder has no right in law to inspect the accounting records. One might have thought that, with the kind of manipulations which have gone on in the City in the last few years, if the Government were really concerned with malpractice, they would have given the shareholder a right to look at the accounting records of companies back over the last six years. However, there is not a word, not a whimper, not a single syllable upon that. Why? They are only interested in regulating trade unions.
The noble Earl, with respect, gave it away. What came high on the list? The member might want to bring a legal action against the union of course and he will have state apparatus in the form of the commissioner to help him do it. That is what it is all about. We understand that. So there is really not much point in asking, "Why six?" I suppose the amendment should have been, "Why six? Perhaps you would prefer 12", because the noble Earl's arguments would lead with equal validity to 12, 24 or even 100.
There is one small point which the noble Earl does not seem to appreciate. He says that the provision will need only a small increase. I wonder whether he really understands the job of being a branch secretary of a large union on the ground at home, late at night, coming home from work and going off to the union meeting room. We know what the Government are about. They are asking those people to keep six years' stuff and make sure it is all there when this accountant comes along to inspect it in their front parlour because they know they will not take on the job. That is another way of making trade unions cease to operate effectively. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthy Lord McCarthy moved Amendment No. 42:
Page 9, line 25, after ("below") insert—("by making available to that member for inspection the records relevant to the request which relate to the period ending with the date of the request and commencing with the date of the most recent return made by the union to the Certification Officer under section 11(2) of the 1974 Act")
The noble Lord said: It is necessary to read though this amendment at this time of night because Members of the Committee may not appreciate how modest it is.
We are saying that the limits of the intervention and right to inspect the accounts should be,
"by making available to the member for inspection the records relevant to the request which relate to the period ending with the date of the request and commencing with the date of the most recent return made by the union to the Certification Officer under Section 11(2) of the 1974 Act".
So instead of being able to go back six years, you would only be able to go back to the date of the most recent return made by the union to the certification officer. We would argue that if you have a return from the certification officer, you have the necessary information that you require to see what the broad financial position of the union is. If your argue, as you might well, that dreadful things have happened to the finances of the union since the most recent return made by the certification officer, you have a right to see the records since then.
However, the problem I have with this debate so far is to find any real justification for anything at all that the Government want to do in this clause. It is very significant, is it not, that the Green Paper is very strong on examples? At least it has the same old examples; it does not have this secret reservoir which the Minister has and which we are all hoping to see. The examples of abuse are all about use of the National Union of Mineworkers' funds at the time of the miners' strike. It does not deal with the parts which start at paragraph 3.23 of the Green Paper:
"Possible Changes: Members' access to union accounts".
The Green Paper does not produce any scandals, nor does it allege any cases where those particular provisions in Clause 6 actually apply. We have no concrete cases at all. Of course, I accept that the Minister may have a reservoir of which he may be about to give me sight. I hope that he is. It would be even better if he were to give us prior sight of such a reservoir. But perhaps that would not be a good idea from his point of view.
In the Green Paper there is no justification at all for what is being suggested. All it says is that although there is a right to inspect annual returns to the certification officer in the Trade Union and Labour Relations Act 1974, the Government do not believe that that provision is sufficient. Therefore they believe that there should be a right to inspect accounting records, although we are not told in the Green Paper—as the noble Lord, Lord Wedderburn of Charlton said, we have to guess—exactly how wide those accounting records will be. We do not know whether the member will be able to look across branches and back over six years at the salaries that officials and branch collectors receive; the mortgages that the union takes out; the ex gratia payments that the union makes and the commercial companies with which it deals. We do not know whether the union member living on one side of the country at, say, Land's End will be able to obtain the records six years back of what happened in a totally different section of a union—for example, the Transport and General Workers' Union—in John o'Groats. The Minister
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has said that none of this procedure will take much time; none of it will be much of a problem for the unions and that all of it will be perfectly easy for them to do.
If it is to be done at every level and at every branch, it will have to be done by lay members of the union. The overwhelming majority of branch secretaries are lay members. They give their services free of charge or for a pittance. Now they are being told that they must keep records for six years. Somehow we will have to find out how much they have to keep and in what form because, unless they do so, the union is likely to find itself in some kind of legal difficulty.
We say that there is no conceivable justification for this requirement. We say that the only possible justification is to provide that the annual returns that are given to the certification officer cannot give you an immediate, up-to-date, record of the state of your union and therefore you ought to be able to obtain any further information from the date of such a return. I beg to move.
Lord Rochester: This may be a convenient point at which to express a general view on the Government's proposals under Clause 6. As the noble Lord, Lord McCarthy, has reminded us, under the Trade Union and Labour Relations Act 1974 unions and employers associations already have to make an annual return to the certification officer and keep proper accounting records which provide a true and fair view of their affairs.
I see no reason to give union members, accompanied by professional advisers, a further statutory right of access to their union's accounts. The noble Lord, Lord Wedderburn of Charlton, has already reminded us that companies are not legally obliged to provide such detailed information which the Government now have in mind for trade unions. For example, shareholders have no right to financial information on a plant-by-plant basis, nor to inspect the company's books. In my view it would be better merely to require employers and trade unions to disclose to their employees or their members, as the case may be, appropriate financial information as envisaged in the Industrial Relations Act 1971 (in respect of employers) rather than impose this administrative burden on trade unions.
9.45 p.m.
Lord Renton: I assume that noble Lords opposite accept that Clause 6 is desirable and are trying to improve it.
Noble Lords: No!
Lord Renton: Not so: I am surprised at that in view of the strong arguments put forward in the Green Paper for making unions accountable to their members.
Lord Wedderburn of Charlton: I can perhaps put it briefly. In respect of the inspection of accounting records, requiring bodies generally, as the noble Lord, Lord Rochester, said, to have a rule of reasonable proportion in that area seems sensible. It

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is the rigidity, extent and absurd proportions of the clause that we cannot possibly accept.
Lord Renton: In other words, the noble Lord accepts the principle that there should be some right of inspection by union members. That means that the unions must keep the accounts in such a way that they reveal what needs to be revealed.
I shall deal with the four items mentioned in the amendment. First, there is information,
"the disclosure of which would be against the interests of national security".
There, I think the noble Lord has a point.
Lord McCarthy: I think that the noble Lord is talking about the next amendment. We are dealing with Amendment No. 42.
Lord Renton: I must apologise to the Committee for jumping the gun.
Lord Trefgarne: My noble friend Lord Dundee will reply to the amendment in a few moments, but I wonder whether I may be allowed to intervene briefly on one point. The noble Lord has spoken on many occasions about the great reservoir of cases to which I have referred. I did not say that I would reveal that reservoir to noble Lords. I undertook to write to the noble Lord, Lord Wedderburn, about the international implications, and that I shall do; but the reservoir is for occasional revelation in small parts.
Lord McCarthy: That is the problem that we have with the noble Lord. We asked him two questions on virtually the same basis. We asked, "Can you tell us more about your statement concerning other countries that do such things?" He said, fairly and openly, "Yes, I will tell you more. I will not burden the Committee with it. I will write to you." Is that right?
Lord Trefgarne: That is correct.
Lord McCarthy: I ask the Minister another question. I say, "What about all the vague statements you have made about all the other cases you have; this reservoir of cases. Can you not send us a letter about that?" The Minister says that he cannot. I do not see why.
Lord Trefgarne: I believe that good things come in small packages. I shall allow the noble Lord the occasional look as we go through the Bill.
Lord Wedderburn of Charlton: With great respect to the noble Lord, we are not concerned; it is the Committee that is concerned. Does he not feel that there is some lack of courtesy to the Committee to say, "I have the evidence. We will debate it, but I shall not show it to you so that you can debate it with me. I will only let it come out in small packages"? We are not concerned. We want the Committee and the world to see this great fund of evidence and then debate it. That is all we ask.
Lord Trefgarne: I described two of the cases during discussions on an earlier amendment. Other Members of the Committee were as disturbed by those cases as I was. It would not be right to reveal a whole raft of cases now. I do not intend to do that.
Lord McCarthy: With great respect, there is a real difference, and the noble Lord knows that well. There is a difference in coming to this place and mentioning names which we have not had before; unions which we have not been told about before; making statements and allegations which we have no opportunity of checking; and saying, "I will dribble some more out for you next time, lads". There is all the difference in the world between that and telling us what they are now, before we debate the issue, so as to allow us to make our own investigations.
Noble Lords: Hear, hear!
Lord Dean of Beswick: But is that not the tenor of all the proceedings on the Bill? I was present earlier when the noble Lord, Lord Campbell of Alloway, who, unfortunately, is not present, condemned an Opposition amendment out of hand. He said that if it were accepted it would be fraught with difficulty and that he could see the unions abusing it. But he did not give one single example of how it could be abused. We are almost in the game which we were in with the local government Bill of people being condemned when the case was in no way proven. As a basic trade unionist, not an ex-trade union official but as somebody who joined a trade union at the age of 15 and is still in one 50 years later, I have always believed in the openness of the books and making available the fullest information possible. I say that as a former secretary for 22 years of a very large Labour club. Everything was available to be shown within a reasonable period.
I think that some parts of this Bill are almost like the people who believe in a majority punishment, like the schoolteacher who has one or two recalcitrant pupils but rather than punish them decides to punish the whole class. Most of this argument is based on the fact that some unions may at times misbehave. I happen to belong to a trade union which, so far as I can remember, has always believed in the ballot box by post. That is where I stand, I believe in that. However it seems to me that the Government are going along without any concrete proof and continually moving the winning post.
It is not good enough. I recognise the Minister's ability and, although I disagree with him on most matters, I always think he does a good job in trying to explain his case. But in this instance he has failed lamentably. It is not good enough in Committee on a Bill as important as this that he should say, "I'll let you know, I'll think about it." The answers should be given at the Dispatch Box, if there are answers.
We have the situation where, because of the pressure over the years, over the last two or three Sessions the Government have been pushing through too much legislation and not giving adequate time for debate. I read in this morning's paper that there will be some further major amendments to the Housing

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Bill when it comes here. Those amendments will not be debated in another place, we shall debate them here first of all. I should find it indefensible if I were a Peer sitting on the other side, even if I believed that the Government were right, that the House should be treated in this manner. I would expect the Minister dealing with this issue to be a little more forthcoming than he has been. I think he has been uncharacteristically flippant in what he has said and I hope he will be more forthcoming in his answers to what has been said.
Lord Mottistone: I find this recent plea, which is what it sounds like, from the other side very strange. It does not seem to bear any relationship to the amendment under discussion. We are talking about Amendment No. 42 but, so far as I can gather, the noble Lord, Lord McCarthy, was inviting my noble friend to tell him all that he is ever going to say in relation to all the other amendments now—
Lord McCarthy: No, no.
Lord Mottistone: The time to tell people evidence to back up something is in relation to particular amendments. This is a very strange sort of thing. I am quite sure that noble Lords think they are doing the right thing and I do not wish to go on with this argument. What I want to do is to encourage the Committee to get on with the amendment and to take amendments in an orderly fashion. Let us get through them, finish them and, if we have nothing else to talk about, let us not introduce strange subjects which relate to the Bill as a whole.
Lord Dean of Beswick: That is not—
Lord Mottistone: For heaven's sake, let us get on with the amendment.
The Earl of Dundee: I am very grateful to all members of the Committee who have contributed to this amendment. Perhaps I may say first of all in reply to the noble Lord, Lord Rochester, who referred to analogies with companies, what I also said to the noble Lord, Lord Wedderburn, a moment ago in connection with the previous amendments that these really are misleading. I do not think that they get us very far. I think that the noble Lord, Lord Wedderburn, and I take the same view on that.
The noble Lord, Lord Rochester, also said he thought that what we are proposing in the clause—for the right of inspection to go back for six years—would be a serious burden on unions. I cannot agree with that. The noble Lord, Lord McCarthy, made the same point. But surely in a modern age with computerisation we cannot seriously feel that what we are proposing—just to extend the right of inspection for a few more years than already exists—will be a serious imposition.
Perhaps the key issue was introduced by my noble friend Lord Renton when he referred to the right of
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inspection itself and the principle that union members should have that right and should be able to carry it out properly for several years and not just for a short interim period. That is why I feel that if this current amendment were to be adopted it would be contradictory to the aim of the clause. The whole foundation of the clause is that a member may need access not just to his union's annual return to the certification officer, which is a right that he already has under Sections 11(4) and 11(5) of the Trade Union and Labour Relations Act 1974, but also access to the accounting records on which that return should have been based. With those remarks, I hope that the Members opposite may feel able to withdraw the amendment.
Lord McCarthy: Of course we are not surprised that we receive such answers. I only have three points to make to the three speakers who have addressed us on this matter during the debate. We would support the noble Lord, Lord Rochester, but unfortunately we cannot put those kinds of amendments into this Bill because that is not in the Long Title. There is a wonderful system here. If one tries to introduce amendments that are not in the Long Title, one is told that that is not in the Long Title. Then one asks if the Long Title can be changed, and one is told "only at the end". When one changes the Long Title, one cannot put any more amendments down. So we cannot do anything about all the very good ideas that the noble Lord, Lord Rochester, has.
We should like to say that the disclosure provisions in this Bill should be imposed upon employers for six years and upon all their establishments too. That would be wonderful, but we have to deal with what we have got.
I have to say, really as much to the noble Lord, Lord Mottistone, as to the Minister—I do not know whether the noble Lord was in his place when the altercation between the two sides arose—that the Minister mentioned a reservoir of disgraceful things which trade unions did. He said that they acted coercively in relation to their members and that he would let us have in good time one or two examples of that whenever he thought that it would liven up the debates. We are asking whether we can have them now so that we can go away and investigate them in advance and be in something like an equal position with the Minister when he pops out the next two or three. Up until now the Minister has said that he will not do that.
I do not know quite what to say to the noble Earl, Lord Dundee. It is just like the principle "Let them eat cake". When someone comes to the Committee and says that this matter is a question of computerisation, he has clearly never seen a branch secretary on a Saturday night struggling to make his books add up.
Lord Dean of Beswick: I do not think that Ministers are aware of the percentage of trade union subscriptions which are collected voluntarily at factory level. They represent quite immense sums of

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money. The possibility of introducing a computer there is completely nonsensical and farcical. In continuing in his reply will my noble friend advise the Minister and the Government how to deal with that situation? As an ex-shop steward I can say that that would make a complete nonsense of what the Government are proposing here as regards accuracy of information and submission. Anyone who thinks otherwise is living in cloud-cuckoo-land.
Lord McCarthy: My noble friend is absolutely right. These activities are carried out by ordinary
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citizens in boilersuits in their spare time. To say that all one has to do is to install computers is the Marie Antoinette answer. It is saying, "Let them eat cake". We have to withdraw this amendment but we still believe that it should be accepted.
Amendment, by leave, withdrawn.
Lord Houghton of Sowerby: Perhaps I may—
Noble Lords: The amendment has been withdrawn.
10 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 43:
Page 9, line 28, at end insert—
("(2A) Nothing in this section shall require a trade union to disclose any information

(a) the disclosure of which would be against the interests of national security;

(b) communicated to it in confidence or obtained in consequence of the confidence reposed in it by another person;

(c) relating specifically to an individual, unless he consents to its being disclosed, or

(d) obtained by it for the purpose of bringing, presenting or defending legal proceedings.").

The noble Lord said: Perhaps I should keep an eye on my noble friend Lord Houghton and not withdraw this amendment too quickly!
All of these amendments illustrate the absurdity of the clause. However, this amendment puts four points to the Government. Whatever else the vast range of obligatory disclosures on inspection to any member at branch or union level contains, have the Government not forgotten several things? The four instances which would provide exemption from such disclosure appear in different forms in a number of statutes. For example, they appear in Section 18 of the Employment Protection Act 1975, which gives exemption from disclosure by an employer in collective bargaining.
The first of the four instances is a disclosure of anything that would be against the interests of national security. I do not know whether the Minister has applied his mind to that. However, it is extraordinary to find that the Government have overlooked the matter. We are not yet six years away from the attempt to crush trade unionism at GCHQ. I am happy to say that trade unionism still exists in the public service both there and elsewhere.
No doubt the accounting and other books and records of such branches would include many things. Perhaps the Minister can imagine a branch at such a sensitive government centre which contains two members, Mr. Wrong and Mr. Right. The subscription stubs and other records, or no doubt the computerised data that the noble Earl would require it to keep, may record many things. If a member comes along and sees all those pieces of information and there on Mr. Wrong's record are the words: "Didn't pay last week; gone to Moscow or Australia", that is plainly a piece of information which should not be disclosed. It might be arguable that it could be kept, with permission, by the authority employing that person. I give that example but there are thousands of others.
Secondly, have the Government thought about confidence? They seem to be rather keen on "duties of confidence" in other respects and elsewhere not a million miles away from the instance which I have just given. I have used the words in the Employment Protection Act. Perhaps the Minister would prefer to use other words. Should anything which is communicated in confidence or obtained in consequence of the confidence reposed in another person be in some way protected from disclosure?
Thirdly, the Government also seem to be very keen on—they usually try to suggest that we are not keen on it but we are—the individual's interests. We believe firmly in the privacy of information about individuals, which is so much at risk in this computerised age and which is the reason we have the Data Protection Act. Perhaps, for example, the subscription records may say: "Could not pay because his wife has left him". Why should some other member be allowed to see that? Is there any reason?
Lastly, I am sure that the noble Lord, Lord Renton, whether or not he agrees with the amendment, accepts that it is a perfectly normal rule that information obtained for the purpose of bringing, preventing or defending legal proceedings in some form or other is normally under a heading of privilege, and that any ambiguity as to whether the clause allows a member to demand to see such matters should be cured by paragraph (d). It seems to us that paragraphs (a), (b), (c) and (d) are normal, natural exceptions which we are surprised the Government have left out. I beg to move.
Lord Renton: Perhaps I may deal with the four paragraphs of the amendment seriatim. I think it is very unlikely that any question of national security would arise on the accounts of trade unions, even of a trade union involved in making armaments. However, to the extent that national security might arise, I see no harm in the provision which prevented disclosure.
When it comes to confidence, I do not think that a case has been made out. The essence of accounts is that they should be open to inspection. Glasnost—however it is pronounced—or openness are essential to accounts. At first sight, paragraph (c),
"relating specifically to an individual, unless he consents"
looks as though it might be worth having. However, when one considers the matter further one finds among the conclusions of the Green Paper, set out in paragraph 3.28 on page 15, that:
"A further cause for concern is the introduction by at least one major union of rules to indemnify its officials for the consequences of any actions whether legal or not".
I do not know how anything like that could be brought to light if there is to be a provision of the kind proposed in this amendment. In any event, if a member of a trade union considers that a pecuniary favour has been granted to another member of the trade union, is the inquiry to be frustrated because the member in whose favour the pecuniary advantage has been given refuses to give his consent? Surely, therefore, paragraph (c) cannot be right.
As regards paragraph (d), the noble Lord, Lord Wedderburn, is quite right in saying that there are certain documents which are privileged from disclosure in a legal action provided that they are prepared for the purposes of that action. On the other hand, any documents which arose before action and were not prepared for that purpose have to be disclosed to the other side under the normal rules of procedure. Paragraph (d) does not make it clear which of the two classes of privileged document or documents liable to disclosure are being referred to.

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On balance, in spite of what the noble Lord said with great sincerity, I do not think that there is very much in this amendment which should compel the Government to accept it.
The Earl of Dundee: I am grateful to noble Lords for their contributions and to the noble Lord, Lord Wedderburn, for his explanation of what he has in mind. Equally, I am grateful to my noble friend Lord Renton who answered the noble Lord's points far better than I could and put them in context very well.
I should like to begin by telling the noble Lord, Lord Wedderburn, what the clause is about and what it is not about. The clause is not about the disclosure to union members of any specific type of information held by the union other than information which forms part of the union's accounting records which Section 10 of the 1974 Act requires every union to keep.
Those accounting records to which the clause applies are required to be records,
"necessary to give a true and fair view of the state of affairs of the trade union … and to explain its transactions".
Nothing in any such records should be denied to the union member. At this point I should like to endorse the remarks of my noble friend Lord Renton who made a connection between glasnost (however one pronounces it) and the right to inspect accounts in an open and straighforward manner.
As regards the content of accounting records, unions have been keeping accounting records as required by Section 10 of the 1974 Act for over 10 years. They are of course needed so that the union's transactions, assets and liabilities can be properly audited.
The Institute of Chartered Accountants has issued guidance on auditing standards, part of which covers the special factors to be considered in the application of those standards to trade union audits. That guidance recognises that there may be considerable diversity as regards the nature of and information to be found in trade union accounting records needed for the purposes of audit.
I am perfectly ready to accept that different unions' proper accounting records as kept for the purposes of Section 10 of the 1974 Act may contain different sorts of information. Some records may contain some information that would come within one or more of the categories set out in the amendment of the noble Lord, Lord Wedderburn. But if that information has to be included in a union's accounting records,
"as necessary to give a true and fair view of the state of affairs of the trade union … and to explain its transactions",
the member must have a right of access to it nonetheless.
Regarding the other aspect which I think lies behind the noble Lord's amendment—namely that of the possible unlawful use of information obtained by a union member, whatever information a union member obtains from his union's accounting records—he will not be able to make illegal or
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unlawful use of It without risking the penalties that may follow from such action. The law recognises that a person who has received information in confidence is not allowed to take unfair advantage of it and that an injured party is entitled to seek relief for breach of confidence.
In summary, the concern underlying this amendment is misplaced. The new subsection proposed is neither necessary to achieve nor compatible with the intended effects of the clause.
Lord Dean of Beswick: Once again I ask why the Government insist on double standards. Is it not a fact that in claims for certain benefits across the whole spectrum, the previous 12 months are always indicated as the norm for what will be claimed and what will be paid, on the basis that it is impossible to keep up-to-date records for such a large volume of people—which bearing in mind the number of trade unionists involved is possibly still in the region of 9 million?
Why do the Government expect the trade union movement, which has nothing like the same resources at its disposal for keeping records up to date, to have its books examined at such short notice? Why do they expect the trade union movement to carry out an exercise and produce a result that they themselves are totally incapable of producing in spite of all their resources, a result that in no way and in no respect is finite or definite about what the trade union movement has under its control?
The excuse that has always been given by the Government takes this form: "We cannot pay this; we cannot pay that. We cannot pay at a certain time. We cannot pay it because it is so difficult to collate everything. There is no way that we can do it". I remember that excuse being given before the DHSS was computerised. It is now supposed to be totally computerised, but the same comments are still put forward. When a realistic argument is put forward to the effect that the Government can now do things much more quickly, they always come back with the same excuse: "We are sorry but physically we still cannot do it". Why are Her Majesty's Government asking the trade union movement to do something which they themselves cannot do?
10.15 p.m.
Lord Renton: It may comfort the noble Lord to reflect that nearly all our legislation is passed not in order to govern the actions of the best but to ensure that those people or bodies who fall below the standards of the best reach the standards of the best. That is one of the main purposes of this Bill.
Lord Dean of Beswick: The noble Lord has encapsulated the matter in a nutshell. The arguments put by the other side are that it is to catch the few who are not behaving. The same arguments were put during discussion on the Local Government Bill: "Some are behaving naughtily; we shall punish them all". The situation is like that of the schoolteacher who has one or two naughty pupils but who decides to punish the class in order to catch the guilty ones.

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What the noble Lord, Lord Renton, has just said was similar to what the noble Lord, Lord Campbell of Alloway, said earlier. It is like saying, "We are protecting you from your own iniquities. In other words, we shall hang you tonight because you may be shot tomorrow morning". The arguments from the other side are not good enough on this occasion.
Lord Wedderburn of Charlton: Perhaps I may address one or two remarks to the Minister and to the noble Lord, Lord Renton. The noble Lord, Lord Renton, referred to the fact that the legislation that one passes is normally measured to the gravity of the problem and the danger. Until we are able to swim freely in the reservoir of the Minister's experience, we do not know what that problem is.
With great respect to the noble Earl, the Green Paper does not disclose even a mere trickle of a problem on abuse. Trade unions have been keeping accounting records since long before 1974. The Act of 1871 required every trade union to keep accounting records if it was registered, and under that dispensation most were. I believe that I am right to say—but we can check it—that Citrine on trade union law reveals that in 100 years of the existence of that Act only three—or it may be two—serious complaints were ever made. Two cases went to the High Court. Both were discussed in the recent case of Hughes in 1985. A very small amount of alleged abuse took place even then. The Green Paper does not give us a stream of facts on abuse in accounting records now.
Turning to the points made on the amendment, I accept what the noble Earl said about a true and fair view. I believe that I quote the noble Lord, Lord Renton, correctly when he spoke about ensuring that the bad do not fall below the standards of the best. When I apply that argument to the Government's record in legislation, and the Financial Services Act that they will not bring into force, I begin to wonder whether they have double standards in this respect. However, if one makes that point, one also needs to state why the extent of the inspection is needed.
My noble friends Lord Dean and Lord McCarthy have tried to ask the Government whether they realise the enormous harassment of trade union sections and branch administration that this will cause. The fact that the Government do not answer that question is capable of the interpretation that they know it and do not care; or even that it is intended. Therefore perhaps by Report stage they will have an answer to that point that means something.
The noble Earl said that on the issue of information disclosed, members cannot make unlawful use of such information without penalty. With respect to him that is a tautology. I am not concerned with unlawful use without penalty. I am concerned with use that does damage in other ways. I agree that some parts of the amendment are concerned with matters that could be unlawful.
I accept what the noble Lord, Lord Renton, said about the drafting of this clause in one particular. I do not accept his comment on paragraph (a) because Civil Service unions will undoubtedly have
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information in and about their accounting records as defined by the 1974 Act that will be concerned with national security—there is no doubt whatsoever about that—and even their membership in some cases. I have had conversation with those who are good trade unionists and good civil servants at GCHQ and they would not tell me whether they or anybody else was in the union to begin with, and they would not have done so before the unfortunate events of 1984. They would not tell me anything about their work which would be related to which union they were in.
Secondly, I think the noble Lord would have to accept that some kinds of confidential information might appear in the records, especially—here is the point on which I freely accept that the amendment must be looked at again—those that do not relate to trade union affairs. I do not agree with the noble Lord, Lord Renton, about paragraph (d). Subject to a few words I believe that:
"information … obtained … for the purpose of bringing, presenting or defending legal proceedings",
is a fairly good short way of producing the usual kind of formula or privilege; but on paragaphs (b) and (c) I agree with him. If we had this kind of debate more often instead of being told that we were raising issues to which the Government will say "No, no, no", we would advance a little further as a revising Chamber. I do not think that the Committee has acted as a revising Chamber for one minute tonight because the Government will not revise anything. If they will not revise anything in this Chamber there is nothing we can do.
The noble Lord, Lord Boyd-Carpenter, seems very pleased with that. Of course he is, but perhaps when he is on this side of the Chamber he will not be so pleased.
Lord Boyd-Carpenter: As the noble Lord has ventured to refer to me, I should perhaps say that so far from being pleased I was merely being amused.
Lord Renton: Before the noble Lord—
Lord Wedderburn of Charlton: I shall reply first before giving way again, which I shall willingly do. I referred to the noble Lord because he made an interjection from a sedentary position. If he was amused, I am pleased. At least that is some profit to the evening.
I put now a serious matter to the noble Lord, Lord Renton. I should like his assistance on the amendment because I believe he will agree with us. There are matters in trade union accounting records, as defined by the 1974 Act, which do not relate primarily to trade union affairs. I gave an example of family affairs. Matters can easily be found in branch papers concerning what is happening in Brother So-and-So's family. Such information should be protected.
I accept what the noble Lord said, that these words go wider. The point about the individual could, as it were, knock the rest of the clause for six if it were taken in its literal sense. I hope that the noble Lord will join us in finding a narrower formula where the protection of privacy concerns matters not related to

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trade union membership and the relationship of union and member. I hope that this is a matter that the Government will consider a little more because from their Front Bench no argument has been advanced against this proposal other than they do not accept it. I thank the noble Lord, Lord Renton, for pointing out these other matters and ask leave to withdraw the amendment.
Lord Renton: Before the noble Lord withdraws his amendment, may I point out that he was quite wrong about our not being a revising Chamber here today. Goodness me, he and I were overwhelmed by the number of government amendments intended to improve Clause 1.
Lord Wedderburn of Charlton: I think we should leave it at that.
Amendment, by leave, withdrawn.
[Amendment No. 44 not moved.]
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 45:
Page 9, line 50, at end insert—
("(5B) Where a trade union receives a request from a member under this section it may apply to the Court for an order that the member shall protect the confidentiality of all or part of the records inspected, and on such application the Court may take such order as it thinks appropriate.").
The noble Baroness said: As has been indicated by my noble friend Lord Wedderburn, this is a very important and in many ways a very unfair clause. As we have seen, Clause 6 provides a right for a union member to have access to the accounting records of the union as a whole and every branch and section of the union at places where the records are normally kept. The member may be accompanied by an accountant. The accountant may be required to agree to confidentiality as a professional individial. The member however is under no such constraint. Moreover, as was evident from the previous debate, the term "accounting records" clearly goes much further than the annual audited accounts which are normally published and available. If they did not do so there would be no necessity to include this provision in the new legislation.
Every institution has material which it rightly regards as confidential. Among those are detailed staffing records. Every employer, particularly a good employer, will from time to time give assistance to employees, perhaps with ex gratia payments to alleviate distress following bereavement or other domestic crises. In my union we frequently did that for our own employees, clerical as well as officials. In addition there are records of pension payments, union mortgages, personal records and so forth.
If the clause is not amended it will give dissident members, perhaps acting on behalf of an outside agency hostile to the union, access to employees' records. If so, trade union employees could be subject to gross invasions of privacy in a way that other employees are not. Furthermore, branch accounting records, and in some unions the national records, will include details of which members are in compliance with their contributions to the union and which are not. That matter has already been touched upon by
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my noble friend Lord Wedderburn. In some disputes, particularly those concerning recognition, that would be of great value to an employer. Sometimes individuals belong to a union but they do not wish their employer or anyone else to know. Why should that information be made available to another member? It is information that the union holds in confidence.
Another aspect is the legal service provided by the union. In my union it is customary to keep records of sums of money won for individuals following accidents at work or in other legal cases. Often the individual who has benefited does not wish other people to know how much has been awarded. Why should all or part of such records be available for inspection if there is to be no duty of confidentiality imposed on the member who inspects?
The purpose of the amendment is to enable the union to apply to a court in order to protect the confidentiality of such material. I believe that to be eminently reasonable and I commend the amendment to your Lordships' Committee.
The Earl of Dundee: I appreciate the points raised by the noble Baroness as regards confidentiality. However, I believe that the amendment would impose undue restriction on union members. For instance, a member may need to disclose the details of what he has found in a legal action against the union to which it was relevant. In such a case the union's perception of the confidentiality of the accounting records would not and should not prevent him from doing so. Again, in the absence of a court action, he may wish to bring to the attention of his fellow members or even the public what he had discovered as part of some complaint against his union involving the assertion that union rules or statutory requirements had been breached. I do not believe that there is a good reason for seeking to prevent him from so doing.
I should like to say a few words about the nature of accounting records in that context. Section 10 of the 1974 Act does not provide a list of the documents or non-documentary records that would fall within the definition of "accounting records". It specifies that the records kept must be:
"such records as are necessary to give a true and fair view of the state of the affairs of the trade union … and to explain its transactions".
It may be helpful to the noble Baroness if I also comment on what is likely to happen in the case of a dispute where it would be ultimately for the courts to decide what did or did not constitute such accounting records. In the absence of a court judgment a union in doubt about the matter may well ask its auditors for their view or seek a legal opinion. Bearing those considerations in mind, I would expect such records to consist of the records of completed financial transactions. Such completed financial transactions may be unlikely to contain information that would come within the definition of confidentiality which the amendments propose to apply.
The clause makes it quite clear that a member has the right of access to inspect accounting records only if those records relate to a period when he was a member of the union. There are various other limitations to ensure that that right is not abused. The

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protections for unions in connection with the clause are, I believe, already quite sufficient, and there can be no question of adding to them in the way proposed.
10.30 p.m.
Baroness Turner of Camden: I find that a very unsatisfactory reply. If one looks at the amendment, it says that the union may apply to the court for an order and the court may make such order as it thinks appropriate. In other words, if the union is approached by a member and the information that is being requested is confidential, then the union can apply to the court and the court decides to make an order if it thinks it appropriate. That seems to me eminently reasonable. And, quite frankly, when we come to talk about proper accounting records, I gather that the present legislation compels the unions to keep proper accounting records with respect to their transactions, assets and liabilities.
The wording in the Bill is much wider. It would give a dissenting member every opportunity for thinking that the sort of information to which I have referred, which is eminently confidential and would be regarded by most employers as confidential if it related to employees—perhaps loans or grants to employees who are under stress or something of that nature—was available to him. In my view, that is not satisfactory. I do not see why the amendment which I believe is very reasonable could not be accepted—
The Earl of Dundee: If the noble Baroness will give way, I listened carefully to what she said. I had not appreciated one aspect of what she had in mind—that it would be for the union to apply to the court and that the amendment would not be triggered unless the court took the initiative to trigger it. I am prepared to take this away and have a look at it. I believe that it is a constructive approach. I will take it away and look at it without commitment.
Baroness Turner of Camden: On the basis of that assurance, I am willing to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 46 not moved.]
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 47:
Page 10, line 36, leave out ("or of any branch or section of that union").
The noble Lord said: We come to perhaps the most serious or one of the more serious issues in the clause. It has been made clear by the Government in another place and here tonight that the clause will require the union to permit a member of any one branch of the union to demand the accounting records of the union, of the branch or of a section. That is sometimes called the Land's End/John o'Groats principle; namely, that any member of any branch can go anywhere and demand the six years' records if he has been a member for six years.
My noble friend Lady Turner was right to point out to the Government—because this happened in another place—that the relevant definition in Section 10 of the 1974 Act is not so much that the records
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necessary to give a true and fair view must be kept. Section 10(2)(a) states that the union must keep proper accounting records with respect to its transactions, liabilities and assets.
That leads to the second point to which these amendments are addressed. I speak also to Amendments Nos. 48 and 52. The three amendments would achieve two things. They would cut out the branch records where they apply to branch property. Whenever I say "branch", I include section. However, the amendments would make even clearer the tie between this clause and Section 10 of the 1974 Act; namely, that the union must keep—since the Government have rejected all other amendments—records relating to its transactions, assets and liabilities as Section 10 states, wherever those records are held. That leads to a distinction which, in my reading of the Committee stage of another place, I was not sure that the Government understood, to put it bluntly.
Union property—that is, the property held by the union's trustees or by other trustees who hold for the union—may be held at a variety of places. My noble friends have spoken about the work that is done at so many levels by lay members and, voluntarily, by officials who frequently are trustees either in name or perhaps as branch treasurer and who holds certain funds.
Most of the union property will of course be held by the union trustees or by trustees of some unions at a regional level. But the union property is totally different from branch property; or to put it another way, it frequently happens that branch trustees hold both branch property and union property. For example, if one takes a union, as in one of the printing unions, where the subscriptions as they come in are automatically divided between what belongs to the union and what belongs to the branch (quite apart from the chapel) one immediately gets either one set of trustees holding two sorts of property or, sometimes, two different trustees, or a treasurer and the branch trustees. In other words, branch property is not union property.
I do not have to argue that because recently the courts have held it in two or three decisions, which I should be happy to discuss, in connection with sequestration. It arose in one of the NGA cases and it arose in a SOGAT case. The union was in contempt of court. The court ordered sequestration and the sequestrators went in and seized the lot. In both cases a sizeable branch—in one case based at Manchester, with a very long history and more than its own independence in some ways within the organisation and certainly its own property—applied to the courts successfully to have that property released because it was not union property.
The first point to note about the clause is that there is no distinction between union and branch property. What has been said by the Government in another place, and I think here tonight, makes it quite clear that the Government intend to get at records relating to branch property as well as union property. If that is so I ask: why? There can be no reason for other than branch members getting at branch records. Of course the members have a right; they are the beneficiaries of the trust, if one wishes to put it in a

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legal form, but in trade union terms it is not necessary to put it like that.
It is obvious to a member of a branch that other members of the branch have a right to inspect the books of the treasurer or whichever officers under the rules hold the property. However, members of another branch inspecting on branch property is another matter. That needs special justification and the first amendment strikes that out by getting rid of those words, "branch or section".
The second set of amendments comes to the aid of the Government in the sense that they make doubly clear what may be clear in the clause at the moment, because the Government are probably in a muddle on this. If you apply Section 10 of the 1974 Act, as they did by amendment in another place, it looks as though you are covering only union property, because that is what Section 10 is about. Section 10, if one reads it, is about the union's records relating to its transactions, its liabilities, and so on.
Section 10(4) makes it even clearer, because it says that if the property is held at branch level for the union then any records kept by the branch of union property will be adequate. Were it not for the hour of the night I could give some practical examples of how this works, but I believe the case is made. The first of these amendments —namely, Amendment No. 47—gets rid of "branch or section", because it is there that the clause looks as though, albeit somewhat ambiguously because of its incorporation of Section 10, it is getting at branch property and branch records of branch property for members other than the members of that branch.
The second two amendments—namely, Amendments Nos. 48 and 51, which go together —reaffirm that if the clause is to operate at all —and we still believe that it is horrendously wide and oppressive—it should operate in relation to union property. I repeat that that can be union property usually held centrally or at district or region but it can be property held for the union as a whole. For example, it may be subscriptions held by branch trustees. I believe that to be a clear although a somewhat technical case.
If the Government genuinely believe what they put forward in another place, that they want to tie in this clause with Section 10 of the 1974 Act, then it is a case which they must accept on its own logic. The logic which I have put forward this evening only spells out the case that the Government made in an amendment in another place in bringing in Section 10 of the 1974 Act to govern Clause 6 of the Bill. I beg to move.
Lord Renton: The noble Lord knows more about the organisation and the structure of trade unions than I. I have no reason to challenge the factual description that he has given the Committee of the holding of property by unions and by branches. It is implicit in what he said that both unions and branches have separate accounts.
From the point of view of the ordinary member who of necessity normally belongs to a branch rather than to the headquarters of the union, if he wants to find out what is happening to the branch to which he subscribes, surely we must provide that he is enabled
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to do so. The union is mainly the sum of its branches as regards the monetary funds of the union.
I believe the noble Lord is right in saying—but I am open to correction—that the first reference in Clause 6 to branches is in subsection (9)(a), which he seeks to amend. I do not believe the fact that there is no earlier reference should be held to nullify the effect of what has gone before. I understand that is what he suggests. I do not have with me my copy of the 1974 Act. Perhaps the noble Lord can confirm by reference to Section 10 of that Act whether there is anything in it which requires branches to keep accounts.
Lord Wedderburn of Charlton: There is nothing.
Lord Renton: In that case I believe it is a relevant factor for the Committee to bear in mind. It may be that in the light of what the noble Lord has said and the fact that Section 10 does not refer to branch property, paragraph (a) may on reflection by the Government need amplification. I hope that if the Government consider that to be so they will not depart from the proposition that branch accounts should be open to inspection by branch members.
10.45 p.m.
Lord Wedderburn of Charlton: I did not wish to mislead the noble Lord. He asked whether there was anything in Section 10 of the 1974 Act which referred to a duty on a branch to keep accounting records. The answer is, I think, no, but a few words should be added. Subsection (4) make two provisions. First, a branch, when it holds union property, may satisfy the union's obligation by keeping the records there. Secondly, as the noble Lord will know, a branch may be a separate trade union in itself. It is a difficult point because sometimes they are separate trade unions in law, although part of the national trade union. If that is so, then the duty falling upon them in that connection is to keep their own. So there are two riders to the "no", but I do not think they affect the substance of the answer to the noble Lord's question.
Lord Renton: I am much obliged to the noble Lord.
The Earl of Dundee: I was interested in the sense in which the noble Lord, Lord Wedderburn, pointed out to us that the ownership of union property can be construed differently from the ownership of branch property. He made the point that union and branch accounts could, and somtimes are, kept separately.
I think that the noble Lord, Lord Renton, put his finger on the point when he said that the purpose of our proposal is to enable the ordinary member to find out what is going on. The ordinary member cannot find out what is going on if he is simply confined to inspection at his own branch. It might be helpful if I were to expand on the kind of way in which the ordinary member can in practice find out what is going on.
A union member who has an interest in ensuring that the funds of the union are being correctly applied will clearly need access to the accounts of the union wherever they are held. His interest will extend beyond the funds which are centrally applied. There may also be particular circumstances which a

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member may wish to investigate—for example, where he believes his branch or section is being treated less favourably than others for improper reasons, or where he believes there to be a problem affecting a number of different branches or sections. To pursue such matters he needs to have access to the union's accounting records as they relate to such branches or sections. The noble Lord, Lord Wedderburn, may feel that the interesting distinctions which he was drawing to our attention are transcended by the practical needs in the context of this clause.
Lord Wedderburn of Charlton: I am not sure where we are, except that I appreciate the Government are not going to accept our amendment. However, one gets used to that.
The amendments in a sense represented an attempt to clear up a point and an attempt to tease out just what is the intention of the Government. To take the second point first, it was not entirely clear in another place whether they really meant to cover the accounting records of all the hundreds of thousands of branches up and down the country for six years back. I remind your Lordships again of the definition. The accounting records must be kept with respect to transactions, assets and liabilities.
"Transactions" is very wide. If it means that all branch property is included in that, which is apparently what the noble Earl is saying, then we suggest that there is no justification. Most rule books of course provide for the revelation of branch records to branch members, but in the amendment to which we are about to come, where perhaps the point will be even more germane, that is not the Government case. Their case is the Lands End to John o'Groat's case; everyone from Lands End can inspect the John o'Groat's branch and vice versa, and the same will apply everywhere up and down the country. The question is; why? They say that members might want to bring an action againt the union. That is usually the idea in mind, and I see that, but it does not seem to us to be a very good reason. That is the first point. The branch case has not been made out for branch property.
Where the branch is holding union property—and more usually union property will be held at the level of union headquarters—there the Government have put something in subection (9)(a) which seems to restrict the paragraph to union property. I am sure that the noble Lord, Lord Renton, and I did not disagree on this point. It is the definition of the subsection that is in issue. Therefore we have references, if I may take the relevent words:
"to accounting records of that union, or of any branch or section — as are, or purport to be, records which are required to be kept by the union under Section 10 of the 1974 Act".
However, a branch does not have to keep such records as its own property under the 1974 Act. I thought that the Government would say tonight, on having successfully included that amendment, that they were not going to press for branch property. However, they now say that as they have got the amendment in they will proceed to do likewise in respect of branch property. The next thing to happen will be that on Report they will be seeking to take that amendment out—an amendment which they
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introduced in another place. I hope that they do not do so because there is a fighting chance, as the words stand, that at least the inspection of branch property will not be unlimited.
I thought it would be better if we cleared the matter up; got rid of the branch as the repository of the obligation; dealt with the union as the Government wanted in incorporating Section 10, and then, although we would not like it—we think the clause is a bad one—we would at least know where we stand.
Lord Renton: Even if the Government have not got the matter right and fulfilled their own intention of enabling branch accounts to be inspected, would the noble Lord not agree that branch members are more likely to be interested in the inspection of their branch accounts, rather than union accounts? Therefore their right to do so should be made abundantly clear.
Lord Wedderburn of Charlton: The common ground between the noble Lord and those of us on this side of the Committee is even greater. Branch members should have access to their own branch records, albeit I should prefer a framework which the law used to have within which the rules had to come and not this rigid notion. Nevertheless, each union has different rules. They provide broadly that members of the branch have a right to know what is going on. As a rule, if a branch secretary tried to conceal what was going on within that branch he would get short shrift. They may also be genuinely interested in the accounting records of the union, although, like my noble friend Lord McCarthy, I would restrict that to the date of the last published accounts. Once the union has published its accounts for the year, that is fair.
The Green Paper made a much better case on this than the Government Front Bench have done tonight. It said that something nasty may have happened since the last filed accounts, so you ought to look at the last accounting records. I did not agree with the way it was put, but the noble Lord, Lord Renton, and I could easily have found agreement on that proposition. But that is not what we are presented with now. We are presented with a gigantic explosion of inspections by people.
Let us face the fact the trade union movement has known since the days of Osborne, and others like him, while it has had the economic lead, that every branch secretary or general secretary up and down the union knows that there are people trying to find out things to which they would not normally have access. My noble friend Lady Turner of Camden has referred to many such people this evening. Their purposes in so doing are, let us say, not friendly to the union. Of course the same is true of all organisations. They know people who, if they got to know certain things, would not use them in a kindly way.
Lord Dean of Beswick: Will my noble friend give way briefly? As a member of the second largest trade union in the country, the AEU, is he not aware that every branch of that union annually elects its auditors and trustees to examine the books on behalf of its members? Is he further aware that very few, if any, branches of the AEU are property owners? Of course the national union is, by virtue of its district offices.

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Does my noble friend not agree that the general picture, in most cases, is that the overwhelming number of trade unions do not have masses of property situated all over the place? Are we not, once again, using a sledgehammer to crack a walnut?
Lord Wedderburn of Charlton: I am grateful to my noble friend. There will be branches of some unions that have offices and so on; but for the most part it is branch funds that matter. That is the main point.
I put two points for the Government to consider on Report. I am sorry if the noble Lord, Lord Renton, feels that I have been helpful to the Government in trying to get the clause right. We are not concerned merely to oppose in the sense of saying that it is a bad clause; we are concerned with the clauses for a special reason. We believe that the Government do not show any consideration, or much knowledge of what goes in the administration of a real trade union. Many of the clauses will make the life of those who contribute, often in their own time, difficult. When there are no explanations for the clauses, we become somewhat suspicious—we are not usually suspicious people—of the intentions behind what will obviously be capable of harassment.
There are those, as I said, such as the Economic League, which make a practice of giving information about union members to employers and so forth. We know that there are those people who will be put up to demand inspection of a vast amount of information. It should be limited to reasonable proportions.
I repeat that branch funds and property and therefore branch accounting records should not be within the clause. They are dealt with perfectly well in branch rules for the members of the branch. Secondly, if it is the case, as the Government argued when they introduced the amendment into subsection (9)(a) in another place—they made a big case of it—that they want the clause to be coterminous in its impact with Clause 10, let them look again at subsection (9)(a) to see whether there is perhaps virtue in the second and third amendments to which I am speaking. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 48 not moved.]
Baroness Faithfull Baroness Faithfull moved Amendment No. 49:
Page 10, line 39, at end insert ("except that accounting records of a limited company through which a trade union carries on any commercial activity shall not, for the purposes of this Act and the 1974 Act, be treated as accounting records of that trade union;")
The noble Baroness said: I shall be brief. As already stated on innumerable occasions, Clause 6 makes provisions for trade unions to keep accountancy records and to make those records available for inspection by individual members of the trade union. But some trade unions have certain of their activities carried out through a limited company. For instance, the Royal College of Nursing, which is a trade union, carries out some activities through Scutari Projects, a publishing company which publishes a professional paper for the Royal College of Nursing. A rival firm,
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Macmillan Press, publishes the Nursing Times and would have access to the commercial company acting for the Royal College of Nursing.
The amendment provides that the records of the limited company, Scutari, would not fall within Clause 6. The Companies Act may cover the contingency, but that is not certain. From the debate in the other place, I understand that the Secretary of State took the view that a limited company's accountancy records probably did not fall within Clause 6, but he was not certain. The amendment would put the matter beyond all doubt. I beg to move.
Lord McCarthy: I support the amendment. As the noble Baroness said, this is the Royal College of Nursing's amendment. As a special body, the RCN has got out of nine-tenths of the Bill, and it wants to get out of this bit. Since we believe that there is no justification for the clause, we must support the RCN in its desire to get out of the Bill altogether.
The Earl of Dundee: Clause 6 creates, as we know, a member's right in respect of access to his union's accounting records. It does not provide for access to the accounting records of any other body. Limited companies through which trade unions carry on commercial activities, assuming they are companies in their own right, cannot be trade unions. So it is already the case that the provisions of the 1974 Act and those of Clause 6 have no impact on their affairs. Simply for that reason I would ask my noble friend if she would see fit to withdraw the amendment.
11 p.m.
Baroness Seear: Why are the Government so resistant to the belt and braces approach occasionally? If there really is any doubt in people's minds, what harm does it do to put something into this Act, so that people do not have to go to a number of different Acts to find out what their position is? It cannot do any harm and it could well do some good. Can the Government really not accept this?
The Earl of Dundee: I take the noble Baroness's point that even if this is irrelevant, perhaps there is sometimes a case for irrelevance if it gives people peace of mind. I should perhaps say to the noble Baroness that I would at this stage be perfectly happy to take the matter away and, without commitment, see if I can come back with something which might be to her satisfaction.
Baroness Faithfull: I rise quickly to my feet to say that under those circumstances I shall reconsider the matter, discuss it and take legal advice. I am very grateful to my noble friend and to the noble Baroness, Lady Seear, as well as the noble Lord, Lord McCarthy. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthy Lord McCarthy moved Amendment No. 50:
Page 11, line 1, leave out from ("construed") to end of line 6 and insert ("as creating a duty to comply with a request in relation to the accounting records of a branch or section of a trade union where the request is made by a person who was not a member of that branch or

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section either at the time of his request or at a time during the period to which the records relate.").
The noble Lord said: I think it is necessary to point out precisely where this comes in the Bill. We are dealing with subsection (10), which states:
"Nothing in this section shall be construed as preventing a duty to comply with a request made in relation to the accounting records of a branch or section of a trade union from arising where the request is made by a person who, although he was a member of the union at the time of his request and at a time during the period to which the records relate, was not a member of that branch".
We want to rewrite that subsection so that it reads:
"Nothing in this section shall be construed as creating a duty to comply with a request in relation to the accounting records of a branch or section of a trade union where the request is made by a person who was not a member of that branch or section either at the time of his request or at a time during the period to which the records relate."
In other words, as the noble Lord, Lord Wedderburn, has said, this is the amendment to do away with the Lands End to John o'Groat's aspect of the clause. It is talking merely about branch property or branch information, branch accounts. We do not see why unions which very often have very different kinds of accounting methods at branch level, and which would not normally be expected to keep their records at branch level for six years, should be expected to do all this and necessarily to keep them in a standard form, the precise description of which we do not yet know, because that will emerge over time.
Any member from any part of the union can ask for the branch records or section records from a branch or section which he has never visited, which he knows nothing about, which does not negotiate his terms and conditions and which may consist in a large union of workers of a quite different category and type of work from the work he does. We do not see why the Government want it. This is in a literal sense a probing amendment: we are probing, we want to know why the Government are so keen to put in this bizarre provision.
The noble Lord, Lord Wedderburn, said that the only justification in the Green Paper for anything in this clause is that part which says that maybe there is a justification for going back to the time when the last accounting records were made. That relates to the accounting records for the entire union. But here we are saying that we should go back six years in every single branch of the union and that access should be available to any individual member of the union who was a member at that time. We are saying that we are very suspicious about this.
I repeat that this is a probing amendment. We are not even certain that we believe—at least I am not certain that I believe—the Government when they say as they have to some extent said today that they are afraid of the misapplication of funds. The misapplication of funds concerns people if it occurs in their own branch or it concerns them if they believe that misapplication is on such a scale that it is a national problem. But why someone living in Lands End should be bothered about the misapplication of funds in John o'Groat's is something that I find extremely difficult to guess.
It seems to me that somewhere we are coming close to an atmosphere which I have felt overhanging this
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Bill from the beginning. That has come through quite often in the comments that the Ministers have made on this and previous clauses today. The suggestion is that something must be under the bed and that, if only the Government could place enough demands on unions somewhere, some more scandals would arise. The secret cornucopia which the Minister has and which he will empty out for us in dribs and drabs might get filled up. We are very suspicious and we do not see why this provision should be supported. I beg to move.
The Earl of Dundee: I am sorry that the noble Lord, Lord McCarthy, is suspicious and I hope that I may be able to reassure him that he really has nothing to be suspicious of. The noble Lord refers to the John o'Groat's to Lands End problem as he calls it, but perhaps I may briefly remind the noble Lord and the Committee what would be the position if we were to accept this particular amendment.
If we did accept it I really think that we should see that it would run quite counter to the effect, and intention, of subsection (10). This subsection is essentially clarifying that nothing in the clause shall be construed as preventing a union from complying with a request made by a member of one branch or section to inspect the accounting records of another branch or section.
The amendment would reverse the effect of the subsection; a member's right to inspect branch or section accounting records would be confined to those which existed in the branch or section of which he was a member. That would be unacceptable. A member who has an interest in the way his union's funds are applied quite properly has an interest in the accounting records of the union wherever they are held.
Perhaps I may repeat what I said a moment ago regarding the fairly obvious practical example that would obtain where a member may believe that his branch or section is for improper reasons being treated less favourably than others or that there is a problem affecting a number of different branches or sections.
The noble Lord, Lord McCarthy, perhaps rather assumed that the only geographical distance that we have to consider is that between the far north of Scotland and the far south of England. But of course there are a numerous and infinite number of branches all over the country and I do not think that I can accept the nature of the difficulty which the noble Lord gives us to understand is reflected by his John o'Groat's to Lands End imagery.
I do not think that there is anything sinister or underhand about this clause or the Government's attitude to it. The matter is open and indeed my noble friend Lord Renton a moment ago put this very accurately when he compared the openness that we have in this clause with glasnost, which he attempted to pronounce. I shall not try to say too much on that in case I mispronounce it.
Baroness Seear: I do not understand why the Government are treating the trade union movement as if it were totally different from any other kind of organisation in the country. I do not know what

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happens in the Conservative Party but I can imagine the hullabaloo that would be let loose if constituency members in my own party went round looking into the accounts of constituencies in other parts of the country. I cannot think that the situation is very different in the Conservative Party. Does the Conservative Party allow its Kensington branch to go and poke its fingers into what is happening up in John o'Groat's? We have John o'Groat's on the brain—let us say Edinburgh. Why should unions be treated in such a totally different way to other institutions?
I noticed that the noble Lord, Lord Renton, said that a union was only the sum total of its branches. There is no such thing. Branches are proudly independent and the union as a totality is something quite different from the individual branches. It is not the sum total of its branches any more than the Conservative Party is the sum total of its branches in the constituencies. Why are unions picked out for treatment so totally different from what would be expected for any other organisation?
Lord Houghton of Sowerby: That is the thinking of 1871 extended by the ingenuity of the Conservative Party in recent months. It knows, or ought to know, the problems of getting to know about branch funds in the unions generally. I shall give an example of that difficulty.
When I was chairman of the committee on the financing of political parties, of which my noble friend Lord McCarthy was a member, we sought information about the finances of the branches of the Conservative Party. We said that we should like to know more about the funds of constituency parties: where they get the money, what they do with it and how much they send to headquarters and generally to know more about their financial activities.
We asked whether the party would co-operate if we sent a list of our own selection of constituency parties to which we should like to send a questionnaire. It said: "You may send us your list of our constituency branches that you would like to investigate and we shall forward the questionnaire to them. We shall not allow you to send a questionnaire directly to our branches. We shall veto your list and send on the questionnaires that we think are suitable. Also, when the replies are given they are to come to us first and not to go direct to your committee".
That was how the committee dealt with the Conservative Party as regards disclosure of information about its branches. The committee had to give up the idea of getting any disclosure about the central funds of the Conservative Party. It would not open its books to us. It would not tell us anything about donations. It would tell us about contributions from branches, but donations were a closed book.
Yet representatives of the Conservative Party have the effrontery to sit there and tell trade unions what they should disclose about their finances and their branches. In this subsection they have the sheer impudence to say that a member of a union who has not been a member of a particular branch either at the time he makes the request to see the branch accounts or at a time covered by his request—that means to say that he was not a member of the branch
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and nor was he interested in the funds of that branch—still has the right to disclosure of the accounts of that branch. I cannot imagine anything more stupid.
To what extent is the party opposite going to drag the corpse of the unknown trade union member from the foundations of the trade union movement in the last century and make him king? Apparently that anonymous member, whose inquisitiveness is beyond all reason, can claim to be satisfied and can have the enforcement of the law behind his request. That seems to me to be mad. It is carrying the matter to absurdity.
I think that my noble friends come down from the cloisters of their universities to help us out on these occasions because they want to discover what a brick wall feels like, because that is what they encounter every time they come. Some of us are more used to it than they are. They can at least make some impression in their academic lives. We can make little or none in our parliamentary lives. At this wearisome hour of a quarter past eleven vitality is low and numbers are small. The television cameramen were so bored that they packed up hours ago. Nothing that we were proposing to discuss from about seven o'clock this evening was of the slightest interest to the great British public. So they put the red covers over the cameras and pushed off. I regard that as an insult to the Chamber. Perhaps the overtime they get is too much. I do not know.
If this were a branch meeting of any respectable section of the trade union movement we should say that this was a pretty poor attendance, that the proceedings were dull, that there was no drama anywhere, that nobody was doing anything and that no resolutions were passed—in fact, they were all withdrawn. We should say this was no sort of branch meeting to attend; yet here we are going through this farce.
In my 90th year and after 40 years in the trade union movement, I sit here discussing the future of trade union finances at this juvenile level. It is an insult to anybody's intelligence. It seems to me that the whole of Clause 6 is largely unnecessary. Who are these members who want to bring tame accountants with them to probe into the accounts of large unions which have considerable funds and very large memberships? The inspection of books and accounting of records is Victorian; it does not relate to the modern union. If the unions are to be subject to these requirements, then all other institutions should be subject to the same conditions. What is really needed, not only here but elsewhere, is a universally accepted standard of auditing and of reporting to public interest and opinion. Such treatment is prescribed for a very large section of the public sector and it should probably be extended further.
Meantime, it seems to me that we are simply dabbling with something which is quite unworthy of our attention. I regard subsection (10) of Clause 6 as part of that and I do not know how it comes to be in the Bill. Who sits down and thinks up these provisions? What directive are they given and what is the purpose? Where are they trying to get to? I shall tell you where they are trying to get to. This is a

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biased and critical approach to the trade union movement of today. The whole ethos of the Bill clearly reveals the mentality of the Government towards trade unions: "Let us make them feel that they are under constant observation and that they are smaller than they think they are; let us do this in the sacred name of giving a right to the individual member". We have had some examples this evening of how far that attitude can stretch.
I regard the proceedings tonight on this clause as being quite unworthy of the House of Lords as part of the British Parliament legislating for one of the oldest and most respected branches of working class activity. All the institutions which emanate from the grass roots get this sort of treatment. Friendly societies, co-operative societies and building societies have all gone through it because the Government do not trust those who promote institutions to serve the purposes of the great mass of the people. They do not trust them to deal with their business on the lines of suitable integrity and honesty. It is shameful. It is no good appealing to the reason of Members opposite at this hour of night. They have lost all capacity now for absorbing argument. It is no good appealing to their better nature either. All one can do is to appeal to their sense of shame. That is what I am doing, and now I sit down.
Lord McCarthy: I doubt that one needs to do much after that speech. I think that Members on the other side of the Committee can see how their attitude is viewed on this side. The noble Lord, Lord Houghton, at one point asked: what could be more stupid? But then he went on to show that the Government's action is not so much stupid as malicious. It is not that they do not know what they are doing; in so far as they know, they intend it and they do not intend to do any good to the trade union movement.
The noble Baroness, Lady Seear, is quite right. She asked what party would allow this. Would the Conservative Party, the Liberal Party or the Labour Party allow it? At least if they did, they would have decided to do it. If some party were to say that any branch or ward could march in and ask for the records from six years back, at least it would be a voluntary association under its own rules which decided that. But this Government will do it by law, by fiat, and by all kinds of penalties. As I said earlier, the Minister gave me answers of the "let them eat cake" variety; tonight he gives me "Nothing up my sleeve" replies, and they are not convincing. I withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 51 not moved.]
Clause 6 agreed to.
11.15 p.m.
Clause 7 [Right to require employer to stop deductions of union subscriptions]:
Lord McCarthy Lord McCarthy moved Amendment No. 52:
Page 11, line 15, after ("shall") insert ("notify the union that the employee has so certified and shall").
The noble Lord said: I think we have agreed to consider Amendments Nos. 52 and 53 together. We
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come now to Clause 7 of the Bill, which concerns check-off. The Government are saying in Clause 7 that the individual worker in future shall have a right to require the employer to stop deductions of union subscriptions from source as it were on notification. In our two amendments, which are in some ways complementary although one could see them as alternatives, we suggest that in all reason the union ought to be notified that the employer is doing this. In our first amendment, No. 52, after the word "shall" we should like to insert:
"notify the union that the employee has so certified",
so that when the employer cancels the check-off he tells the union that he has done so.
Amendment No. 53 is a slightly different way of effecting the same thing. We suggest that the employer should not be able to start cutting off the check-off until he has notified the union. This clause is about the check-off, and our amendment proposes that the employer should be under some slight obligation, even if it is a burden on business and even if he is one of the smallest of small businessmen, when he decides that he must give in to a request of a worker in his employ to cancel the check-off at least to tell the union.
I think that it is necessary very quickly to explain to those who may not know why we have check-off at all. The British trade union movement was very reluctant to agree to check-off. It was one of the last trade union movements in the world to agree to it. The system grew in the 1960s very fast, partly because employers wanted it. They wanted it because they did not want people wasting their time going round the factories collecting subscriptions, or failing to collect subscriptions and thus generating difficulties and disputes about people lapsing. The unions wanted it because it avoided the problem of lapsing. The workers were prepared to accept it—after all, under our law they have to sign and agree to it—because it is a painless way of paying union subscriptions and there is no problem of lapsing.
It now covers some 95 per cent. of trade union members. So far as I am aware—and the question has been studied, though not recently—it is one of those rare phenomena that causes no problems or complaints and was not even mentioned in the Green Paper or the election manifesto. The Government have never told us, and they did not tell us in the other place, why they want to do this. I am not saying that it should not be done. Any employer who is asked to cancel a check-off is under a legal obligation to do so. The system can continue only if the individual worker wants it to continue. I am saying that what the best employers do—which is to inform the union—all employers should be made to do, even if it is a burden upon business. This is an extremely reasonable amendment. We hope that the Government will accept it.
Lord Trefgarne: This clause is concerned with the rights of an employee in respect of deductions from his pay made by his employer. It does not affect his substantive obligations to the union; for example, to pay subscriptions so long as he remains a member. The need for the clause arises from the quite unreasonable difficulties that have sometimes been

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placed in the way of individuals who sought to stop deduction of union subscriptions from their pay exercising their undoubted right to resign from a union.
The government amendment in another place arranged for the Bill to be modified so as to require the employee to certify that the union knows that he is leaving it, or has done so. It would be quite redundant, and an unnecessary burden on the employer, to impose a further obligatory notification. There is nothing to prevent unions and employers agreeing that such notification should take place if they wish to do so, but I do not think that we ought to provide for it in statute. I hope that the noble Lord will agree with that proposition and will not press his amendment.
Lord McCarthy: The noble Lord almost opened his reservoir then. He referred to quite unreasonable difficulties. I do not know whether he wishes to send for the cavalry for the details. Does he have anything in his reservoir about quite unreasonable difficulties in getting rid of the check-off? It would be quite unlawful to do so even now. I do not see why the Government cannot accept one or other of these very modest amendments. I have to withdraw them, but I call on the Minister now to tell me what these unreasonable difficulties are. I note that the reservoir remains closed.
Amendment, by leave, withdrawn.
[Amendment No. 53 not moved.]
Lord Trefgarne Lord Trefgarne moved Amendment No. 54:
Page 11, line 27, leave out subsections (3) and (4) and insert—
("(3) Notwithstanding anything in any contract between the employee and the employer, or in any agreement or consent signified by the employee, a deduction made in contravention of this section shall in all cases be treated for the purposes of Part I of the Wages Act 1986 as a deduction in contravention of section 1(1) of that Act.").
The noble Lord said: In moving Amendment No. 54, I shall speak also to Amendments Nos. 122 and 137 to 141 inclusive.
During consideration of the Bill in another place, the Parliamentary Under-Secretary of State undertook to consider, at the request of the Opposition, whether Clause 7 could be amended to provide a simpler and more readily understandable procedure. This amendment to Clause 7, and the consequential amendments to Clause 29 and Schedule 3, honour that undertaking.
The clause already provides that where an employee certifies to his employer that there has been, or will be, a termination of his union membership and that the union is aware of the termination, the employer must stop deducting union subscriptions from his remuneration. If the employer nonetheless continues to make such deductions, the amendment will enable the employee to apply under Part I of the 1986 Wages Act to an industrial tribunal for a declaration and a refund of the deductions.
This allows an individual to obtain a refund without first applying to the county court if his rights under the clause are breached, thus allowing for the removal of subsections (3) and (4). In effect, he will be in the same position as any other employee who has
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suffered an unlawful deduction at the hands of his employer.
Removal of subsections (3) and (4) means that the reference in Clause 29(3) to orders against the Crown is unnecessary and it is itself removed by another of these amendments. The amendments to the schedule are purely consequential. The right given in the Bill for an employee to obtain a refund under the Wages Act 1986 of any political fund subscriptions deducted unlawfully is preserved.
This group of amendments brings about a useful simplification of the clause. I beg to move.
Lord Wedderburn of Charlton: On this group of amendments, our position is one that the Government often take, except with regard to Clause 29, which may be necessary. However, since the whole issue under the Wages Act is a matter of contract in a very broad sense we cannot see why this amendment is necessary. However, as it has been moved we have no objection to it.
On Question, amendment agreed to.
Clause 7, as amended, agreed to.
11.30 p.m.
Clause 8 [Use of funds for indemnifying unlawful conduct]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 55:
Page 11, line 41, at end insert ("pursuant to any agreement, arrangement or understanding to which the union is a party—").
The noble Lord said: We now come to Clause 8. It falls to me to move the first amendment to it in this excited and crowded Chamber. Clause 8 is particularly obnoxious. It is another clause which takes from trade unions the ordinary law of the land, and takes it from them uniquely.
I should like to place on record my personal reflection upon the evening in the light of what my noble friend Lord Houghton of Sowerby said, which I felt was so much to the point. It was said earlier tonight in previous debates that this was in effect a class Bill. The Minister will not appreciate that analysis, but those of us who have been watching what has happened as the evening has been going on with calm analysis have seen the Government go over the top against trade unions. They were told so from their own Benches on the discipline clause. We have seen the inspection of branch accounts being taken to a ludicrous extent, right over the top, and there are the other clauses that have been debated, and now this one goes over the top, but over the top always in one respect—the union must be picked out, and not just the union, of which the Government are so keen to speak, but the individuals who form that union are picked out for second class treatment and with double standards. If ever a clause did that again, it is Clause 8.
The issue is whether a union should be permitted to indemnify officials, or possibly even others, who have upon its business committed offences. The law is clear at the moment. I support it and so I believe do most fair-minded people in this country. Broadly speaking one must not agree to indemnify for the costs of a

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crime in the future. That is against public policy. It would be extraordinary if it were not, but one may indemnify afterwards so long as that is a discretionary matter and not done in pursuance of any such arrangement. There are some footnotes to be added and extra qualifications, but broadly those are the two areas.
They were the areas as set out in the case of Thomas v. National Union of Mineworkers (South Wales Area) in 1985, 2 WLR page 1120. Mr. Justice Scott there sets out precisely that test in relation to the reimbursement of fines or penalties incurred by striking miners who fall foul of the law, as he put it. He cites previous authority to say that there is nothing lawful about an agreement to recompense or indemnify for crime in the future. But whereas here the union had power with its rules (because as the law stands union rules are still of some importance) where it has powers to consider the cases of members arrested for offences, and if it thinks fit in the interests of the union and the members as a whole to relieve the financial consequences of the arrests in the past, then that is not contrary to the law.
The amendment would put the clause not perfectly but basically back into accord with the normal rule of law. If ever anything showed that the Government intend to place trade unions alone into a stockade fenced off by special rules, it is their refusal to allow them the very limited power which the law allows to bodies now. It is a power which companies use every day. How many Members of the Committee have lunched with an executive who has parked his car on a meter, then seen him take off the ticket knowing that it would be sent to the company for payment? That is recompense or indemnity of the costs of a crime. Under the clause unless the Secretary of State is gracious enough, embodying himself the ruler of law, to say that by order he will exempt an area of criminal offences, the trade union is not to be allowed to do so and ordinary officials who have done their job and who have, albeit innocently, committed a criminal offence of parking or whatever, are not to be allowed to do so. I should like to ask the Minister a question to obtain genuine information. Is it the case that the clause forbids the union to pay the fines of anyone who is convicted? If that is the case, it is another dimension from which the union is excluded. It would appear that it is. Therefore, this amendment tries to ask the Government whether there is a limit to the way in which they will pick upon trade unions. If there is no limit, perhaps one day they will reflect ruefully upon what they have done. I beg to move.
The Earl of Dundee: I am grateful to the noble Lord. I believe that his amendment would enable a union property to be lawfully applied in a way the clause specifically aims to prevent. The key principle of the clause is that a member should be able without qualification to prevent the use of his union's funds to provide unlawful indemnities. Whether the funds are applied in this way pursuant to any agreement, arrangement or understanding to which the union is a party, is beside the point.
It is not the Government's intention to limit the clause so that, for example, use of union funds to pay
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indemnities on an ad hoc basis would be permitted. Nor do we intend to limit the member's right so that he might have no grounds for action if his union funds were applied through some kind of holding agency.
The noble Lord, Lord Wedderburn, asked whether in certain circumstances the union would be able to indemnify an individual. I can assure the noble Lord that in certain circumstances that will be possible.
Lord Wedderburn of Charlton: The last part of the noble Earl's response fills me with a certain amount of puzzlement. I thought that he was about to point to a part of the clause that I had overlooked and which allowed that. Perhaps he will do so at Report so that when the reservoir opens we can look at the matter. At the moment I cannot see it.
However, I cannot appreciate his first remarks as a reply because he tells me that the Government intend to have the member of the union prevent the union using its funds or property for the payment of indemnities for penalties of offences. I understood that; it is set out in the clause. Broadly speaking, I am saying that every other organisation in the land has the right to do so ex post facto, with hindsight and discretionary, subject to certain types of offence. They cannot make an agreement to do so in future and I am in favour of that. That has always been the law.
No abuses have been alleged tonight but there may be some allegations in the future. Why is the clause necessary? We are left in the position where I have to beg leave to withdraw the amendment because no other course is open in line with the procedures of the Committee. I have received no reply to the question: why is it there and why cannot trade unions be allowed the same—
The Earl of Dundee: The reason for this clause is that in its absence there is no incentive to a union member to behave in the right way because he knows that, whatever he does, it is quite possible that the union will pay his fine.
Lord Wedderburn of Charlton: I shall obviously refrain from reading the whole passage from the judgment of Thomas v. NUM. But if that were the case the union would fall within the first rule rather than the second. As Mr. Justice Scott makes clear, if, as he says, a union or any other body is so perverse as to make it a practice to indemnify people for the costs of their crime, that is also against public policy. It is only when it is clearly ad hoc and discretionary that the permission exists. I have no answer, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 56 and 57 not moved.]
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 58:
Page 12, line 24, at end insert ("and other than an offence committed by an official of the union, other than wilfully or recklessly, in the course of his duties and, in respect of which he ought fairly to be excused having regard to all the circumstances of the case.").
The noble Baroness said: I do not wish to go over the ground so adequately covered by my noble friend

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Lord Wedderburn. However, I again raise the question of why a union should be constrained in a way that does not apply to other organisations. I know that we shall have the answer that unions are unique organisations. However, there are other institutions—and newspapers are an example—where this kind of constraint does not apply. Union officials become involved in situations from time to time which involve minor infringements of the law. An obvious example is a parking fine. Is the employer allowed to pay a fine for his personnel officer but the union cannot pay the fine of an official? I know that the Minister has said that this is one of the offences which will be protected when we have further information from him but I feel that the situation is entirely unsatisfactory.
Our amendment protects an official in respect of an offence commited, other than wilfully or recklessly—and I emphasise that—in the course of his duties and in respect of which he ought to be fairly excused having regard to all the circumstances of the case. Quite recently a journalist was fined for contempt. The newspaper employing him made an announcement on its front page that it would pay not only the fine but also the cost of the action because the employee had been acting on its instructions and in accordance with its policy. There is no reason why that newspaper should not have the right to do that and I applaud it for doing so.
On the other hand, why are unions to be the subject of discrimination again? It seems most unfortunate that this should continue to be the case and we cannot make the Government see that what they are doing is grossly unfair and terribly inequitable. I commend the amendment to the Committee and should like a reply from the Minister as to why this moderately worded amendment cannot be accepted if that is the situation. I beg to move.
The Earl of Dundee: I entirely accept that the intention of the noble Baroness is to introduce innocuous and moderate measures, but I cannot accept this amendment. It would be quite wrong to limit the application of a clause depending on whether or not an offence had been committed in the course of an individual's duties. An individual's duties, whether or not he is an official of a union, should simply not include activities which lead to him being found guilty of an offence with the consequent imposition of a penalty.
It is also irrelevant whether an offence was committed wilfully or recklessly; and it is up to the court to decide whether an individual ought fairly to be excused having regard to all the circumstances of the case. These are matters of relevance to the courts but not to the clause.
These points are sufficient to explain why the amendment is unacceptable and should be rejected. In the light of that, I ask the noble Baroness to withdraw the amendment.
Baroness Seear: Will the noble Earl please explain whether he intends to bring in similar legislation to stop companies paying parking fines for their employees? If not, why is sauce for the goose not sauce for the gander?
11.45 p.m.
The Earl of Dundee: In reply to the noble Baroness, my noble friend Lord Trefgarne has already said that the Bill is about trade unions, not companies. I think I said when replying to one of the points on a previous amendment that there would be circumstances under which the union would not be prevented from paying the fine of an individual who had fallen foul of the law, and a parking fine might well be one such example. However, a union member might have obtained a parking fine in taking part in secondary picketing or industrial action somewhere, in which case it would not apply. It would apply in certain circumstances.
Baroness Seear: Where in the Bill does it say that this exemption could be made? The noble Earl said that there are some circumstances in which it would not apply. Is that in the Bill?
Lord Houghton of Sowerby: What we are asked to do in every succeeding clause is to take something away from the present responsibilities and powers of the unions. So far as I can tell, nothing in this Bill, and, so far as I recall, nothing in earlier legislation, confers any additional strength on the trade union movement. Throughout the legislation the Government have been building up the response of individual members of unions to the exercise of union power and union responsibility.
That is the ethos of the whole course of action. It is extremely distasteful for anyone who has any respect for the trade union movement to feel that that is the sort of treatment it deserves from any government. It is not conducive to a response from the trade union leadership of any respect for a government who have consistently been following such a policy throughout their term of office. The Government are moving towards a relationship with the trade union movement which bodes ill for the harmony and mutual confidence of the unions and the Government for the rest of the latter's term of office.
The Government may feel that they can ride over this and that they have public opinion on their side, but there is a reaction which may occur. Many people are at present becoming conscious of the fact that the Government's policy is deliberately to floor the trade union movement so far as they can, to weaken its power and to reduce its collective responsibility. That is what is happening. The Government are reducing collective responsibility by promoting individual resistance. The whole basis of the strength of the trade union movement is to get some degree of collective action. Individual actions have failed and have resulted in unity and the added strength of collective action. It is the effectiveness of that unity that this legislation is trying constantly to chip away.
That is something to be deplored. It is reprehensible that we should be kept late at night to continue this process. I hope that for the rest of the Bill we can do rather more business during normal hours of the day.
Baroness Turner of Camden: At this time of night we do not intend to persist with our argument. We

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shall withdraw the amendment and reconsider the position on Report.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Clause 9 [Remedy against trustees for unlawful use of property]:
[Amendments Nos. 59 and 60 not moved.]
Clause 9 agreed to.
Clause 10 [Industrial action to enforce membership]:
[Amendment No. 61 not moved.]
Clause 10 agreed to.
Clause 11 [Action by an employer to enforce membership]:
Lord McCarthy Lord McCarthy moved Amendment No. 62:
Page 14, line 14, at end insert—
("(2) For the avoidance of doubt it is hereby declared that subsection (1) above does not apply to an employer who declares and makes public his intention to engage persons who are members of a specified trade union.")
The noble Lord said: I understand that this is our last appearance tonight. In Amendment No. 62 we are asking the Government for a declaration. I hope that the very worst that they are going to say about this amendment is that it is not necessary. I hope they are not going to say that it is objectionable or unclear. Those are the only three answers that they ever give. I hope they are going to say that it is unnecessary. Even at this late stage I should be even more pleased if they said that the condition in the Bill is unclear and that this amendment makes it clearer. That is our position.
The purpose of the amendment is to protect the rights of the employer. Surely we can reach some agreement on that. That is the right of the employer to continue to express and act upon his preferences and,
"his intention to engage persons who are members of a specified trade union".
What we have legislated about is very largely the conditions of unfair dismissal or action short of dismissal. In this country there is no right to work and certainly no right to work as non-unionist. There is no right to demand a job as a non-unionist. As my noble friend Lord Wedderburn said earlier tonight, the Government have made it clear in another place that they are not interested in trying to circumscribe or restrict in any way the employers' right of engagement. The individuals that the employer decides to engage and their characteristics are the business of the employer. All we have is legislation about dismissal and discrimination, but not about engagement.
It is true that the 1982 Act prohibited union-labour only clauses in contracts for the supply of goods and services. It prevented secondary action to enforce the closed shop against given employers who were employing non-union labour. It is true that in the
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area of race discrimination we have something which is broader than the issue of dismissal. But when we come to the engagement of workers on grounds of unionism or non-unionism, we have the words of no less a person than the noble Lord, Lord Young, to say that it cannot be done. As far as we know it has not been tried yet.
The amendment seeks to make clear that employers can if they wish express and practise their intention to engage persons who are members of a specified trade union and that at this moment in time remains quite lawful. I beg to move.
Lord Trefgarne: If I may say so, this amendment is the closed shop having a last rigor mortis wriggle, if that is the right word—a last struggle before it finally sinks into the world of oblivion where it rightly belongs. In any event, the amendment is defective because taken at face value it seeks to retain the whole panopoly of closed shop approval and dismissal for non-union membership for certain employers and accepts its repeal in the case of others. The distinction would be determined by the employer's expressed intention to engage members of specified trade unions. I need hardly say that such a proposal would be quite unacceptable to the Government.
In principle this amendment is objectionable for the reasons that I have referred to. In any event it is technically defective and I therefore invite the noble Lord not to persist with it.
Lord McCarthy: The noble Lord worries me now. It may be the Government are getting tired. There is nothing here about the closed shop. The closed shop is an agreement or practice. We are not talking about anything which a union does: we are talking about the sacred rights of the employer. I am sure that if the Minister goes away and asks other people in government he will find that this Government have not said that they wish to circumscribe in any way the employer's intention to engage people who are members of a specified trade union. It is not to be through agreements, practices or other nasty things like the pre-entry closed shop but by the simple excision of employer preference. Surely even if the Minister does not agree to this amendment, he can at least admit that that is the case. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 agreed to.
The Earl of Dundee: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at four minutes before midnight.