§ 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.]432
§ 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 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 433 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 434 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 435 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 436 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.
437 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 438 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 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 439 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 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 440 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 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.
441 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 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 443 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 444 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.
§ 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 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
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.
447 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 moved Amendment No. 4:
- ("(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 noble Lord said: I spoke to this amendment earlier. I beg to move.
§ On Question, amendment agreed to.
§ 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,
§ (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 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.449
§ 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.
450 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 451 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.
452 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 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 453 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 moved Amendment No. 8:
Page 2, leave out lines 40 to 43 and insert—
§ The noble Lord said: We have already spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.
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 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 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.
§ The noble Lord said: I beg to move.454
§ 4.30 p.m.
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.455
§ 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.456
§ 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.457
§ 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.
The Principal Deputy Chairman of Committees
Is it the Committee's pleasure that the amendment be withdrawn?
The Principal Deputy Chairman of Committees
The Question is, That the amendment be withdrawn. As many of that opinion will say Content?
§ 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?
§ 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.
466 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, 89.468
|DIVISION NO. 1|
|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.|
|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.|
|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.]|
|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.|
|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 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 469 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 unionin 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: 470No 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 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".
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 472 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.473
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 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 474 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 475 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 476 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 477 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 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 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 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 480 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 481 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 482 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 484 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 485 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.
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 486 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 489 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?490
§ Their Lordships divided: Contents, 80; Not-Contents, 121.491
|DIVISION NO. 2|
|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.|
|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.|
|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.|
|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.|
|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.