HL Deb 07 March 1988 vol 494 cc496-556

House again in Committee on Clause 3.

Lord Wedderburn of Charlton moved Amendment No. 18. Page 4, line 50, leave out ("such").

The noble Lord said: No doubt over the dinner break the Government have been reflecting upon their victory on the major matter which the Committee was debating on the last amendment. We hope that the Government will reflect further and we therefore put to them this much more refined amendment. I shall speak, if I may, to Amendments Nos. 18 and 19 together.

The fact that the clause, as the House has now seen fit so far to approve it, places limitations of unjustifiable discipline even in a case where a member refuses to join his fellows after a majority vote in industrial action does not in our view necessarily carry the rest of the paragraph to which these amendments relate—that is, Clause 3(3)(a) in its last two lines. The clause refers not merely to someone who fails to participate in the industrial action but to someone who indicates opposition to, or lack of support for, a strike or industrial action. We ask the Government to consider the rider to that latter phrase that the stike is not supported by a majority in a ballot. For this reason, if it be accepted that the individual is not forced to join it, it does not necessarily follow that, without any consequences in the union which he has chosen to join and chosen not to leave, he should be able to do anything and everything by way of opposition and expressing lack of support.

It surely does not follow that a dissentient member, being outvoted by 99 per cent. of his colleagues, should escape from what are still the lawful union rules. If he goes on television and blackens their character, if he discloses confidential union business in terms of his indiscriminate opposition to what every single one of his fellow members except him has decided to do, how does it follow that all forms of opposition should exclude the union rules?

In that respect, with a view to the Report stage as much as to the Committee stage, I wish to put two specific questions to the Minister. First, what is the relationship between "opposition" in this paragraph and the assertions in paragraph (c) to which we come later? Do any limitations connected with the assertions in paragraph (c) apply, as surely they should, to assertions by way of opposition in paragraph (a)? Secondly, and I do this because I do not wish to interrupt the Minister in full flow—No, that is not true. Of course I wish to interrupt the Minister in full flow, but I thought perhaps it would not be sensible or polite to do so—

Lord Boyd-Carpenter

Nor wise.

Lord Wedderburn of Charlton

It would not be sensible or polite or even wise, as the noble Lord, Lord Boyd-Carpenter, says. I should have had no hesitation about interrupting the noble Lord, Lord Boyd-Carpenter, but I did not wish to do so with the Minister.

The noble Lord referred to the position in other countries. I think he mentioned certain other civilised countries where, he said, members of unions did this kind of thing. We were then debating the refusal to join in lawful union action. He said that in those countries the trade union had no right to discipline, or I think he said no power to discipline, but I shall read Hansard to see which it was. I should like to know which countries and what are the laws which limit that right. I think the Committee is entitled to know that, and I say it with no disrespect to the Minister, because, if I may say so, he contravenes this proposition less than some of his colleagues. I think it is not right that this House as a legislative body should be given these vague illustrations without a clear and exact designation of the laws to which they refer. Those are two questions to the Minister, one about assertions, the other about foreign countries.

I suspect that if one wanted to make a judgment based on comparative labour law in other European countries, one would find that our amendment would be regarded as not particularly objectionable in the vast majority of such countries. I am prepared to spell out what I think that vast majority is. I do not think it would be objectionable in France, Italy, Sweden or most of the major industrial countries.

What this amendment says to the Government is, "All right, you have won for the moment". One of my noble friends, Lord Callaghan, said that it would probably not last forever. The amendment suggests: "You have unwisely won your major battle on this subsection. But for the second half of it, should you not reconsider? Would you not put some limit on the type of opposition to which the lawful union rules would not apply?" I beg to move.

8.15 p.m.

Lord Trefgarne

We debated the principle of the proposition behind the noble Lord's amendment at length before dinner and your Lordships reached a conclusion on it. I do not wish to weary your Lordships unduly by repeating all the arguments that I put forward then. Nor would I wish to draw further on the great reservoir of cases that I have in my brief explaining the background as to how the Government came to this view. The great reservoir of cases of abuse of their position which the trade unions have, I fear, to some extent—

Lord McCarthy

Would the noble Lord allow me to intervene? Could he pass us this reservoir through the usual channels? We should love to see it.

Lord Trefgarne

I think I should unduly detain your Lordships by dilating on that. However, I shall be very happy perhaps at the next stage, when no doubt the noble Lord will table more amendments, to deploy one or two more of these black examples for the noble Lord's delectation.

The noble Lord, Lord Wedderburn, has asked me some serious points particularly about the countries to which I referred at an earlier stage where the position is as I described it. Rather than wade through my brief and find that information, I wonder whether the noble Lord will allow me to write to him with it. I should be happy to do that in good time for the next stage. I hope on that basis that the noble Lord will not wish to pursue this any further.

Lord Wedderburn of Charlton

I am a little taken aback because, with the greatest respect to the noble Lord, I do not think he has addressed my amendment. I am very happy that the Minister should write to me with the specific laws of specific countries. I hope that he will also send me and my noble friends at least an abstract of this reservoir of factual instances upon which he is relying. If I may say so, to have a few more presented when we come to the Report stage will not be entirely satisfactory, especially if they are presented in a similar fashion. I happen to know about the case of Mr. C, and would have a certain amount to add to what the noble Lord said. Although I am not suggesting that he misrepresented it, I think there are further features to it. But if they are presented anonymously it makes things rather difficult.

I suggest that the Minister sends to Members of the Committee who are interested or, better still, puts in the Library the countries and the reservoir of instances that he mentioned. The Library is big enough. It will take it all, however large the brief may be. We should be most grateful if the Minister would place it there.

Frankly, I do not think that the Minister addressed the amendment. Let us be quite clear what I am saying. Even if the union cannot apply its discipline to a member who fails to join industrial action after a ballot which decided in favour, there should be cases where the union is permitted to apply its lawful rules which are voluntarily accepted by that member who is in the minority. In that case the union must be allowed to apply its discipline to opposition, at any rate, of certain kinds.

The Minister did not address himself to that point at all. He seemed to think that the first half of the paragraph carried the second. As he did not answer the point, we shall consider ourselves entitled—unless, on reading his remarks, we think otherwise—to return to this matter on Report. I think that that is normal practice. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19 to 21 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 22: Page 5, line 5, at end insert ("where that requirement was imposed on a date before the commencement of the strike or other industrial action to which the failure relates").

The noble Lord said: This is an even more modest amendment. I cannot believe that the Government will not at least answer it or say something about it. However I should not like to bet on that.

The Government wish us to accept the concept of the privilege of the dissenting individual member. It is often said in government circles and so often repeated in another place that the individual is paramount. By that the Government mean that the individual is paramount over the union. He is not considered ever to be paramount over his employer. If he takes priority even over his own contracts this is a very special doctrine of freedom of contract. I hope that the Committee will notice that. The doctrine is well known in the writings of a particular ideology.

But the Government consider that where one has anything to do with a trade union one can break the rules. The Government think that the individual should be in that position. They supplement that idea in this clause. The idea is quite straightforward. The Government propose that a union cannot discipline a member where the act required of him is one which would require him to contravene a term of his employment contract. Just to be sure that the Government have covered every possibility, the clause further states: or any other agreement between that individual and a person for whom he works or normally works".

We say that if the privilege goes that far—the major debate before dinner carried the Government largely over the hurdle and we must accept that—then there is a further point. Let us suppose that that requirement or obligation arises not under the individual's normal contract of employment or under an agreement which already exists at the time of the strike but because the employer says, after the strike or industrial action commences, "I want your help to beat the strike." That is a strike in which the individual concerned voted with his fellows in a ballot and was beaten.

The employer says to the individual, "Come on. Move over from the usual work you do." Perhaps the individual concerned is a foreman. One can imagine that in certain areas it would be a rather grave breach of union rules for a foreman to go back on a bench or to do other work normally carried out by employees. The employer may say to that individual, "Come on. I shall pay you another £50 a week if you keep it going for me on the bench." Let us assume, not extravagantly, that the individual concerned is a union member. Many people retain union membership. I do so myself and I was glad to hear the Minister say earlier this evening that he also did. That makes at least one bond between us. If the union rules prohibit this manifest strike-breaking, how can the Government deny the union rules their application?

Under the clause as its stands the employer could even say to a worker, "You are a member of the union. You have the branch minutes. Let us have a look at them. I shall pay you £50 a week for every minute book you bring in." The employer would make it part of the contract of employment because he perhaps read law at the London School of Economics and therefore keeps up with his legislation.

Why should that not happen? The Government say that that is all right. There is nothing that the union can do about that. It cannot discipline the individual involved at all. There is a point at which the unfairness becomes so extreme that one wonders what more one can say. On all the Government's assumptions and accepting all that has gone before tonight, however much, as Lord Diplock once said about certain labour laws, they "stock in my gorge", surely this little amendment, which states that after a strike starts individuals must stay where they are and that any new obligations they take are not within the purview, can be accepted. I beg to move.

Lord Graham of Edmonton

I very much hope that the Minister will accept this as being a very modest amendment. No doubt the noble Lord, Lord Boyd-Carpenter, will recognise that perhaps this is the appropriate moment at which I ought to have raised the issue that I inadvertently raised earlier. I look forward very much to hearing his observations now as he was inhibited about making them earlier.

The issue is a very simple one. If a union is going to be legally constrained from fulfilling its own rules and the situation arises whereby a member of a union, in effect, has turned coat, has been bought or has engaged in activities which are blatantly contrary to the rules, the Minister is inviting us to say that there are different rules for all kinds of organisations.

I seem to recall his earlier pleading in aid of, ludicrously, a golf club. The Minister said that a golf club has certain rules. I recall within the past day or two a report in the newspapers of a lady who wore shorts at the golf club. She caused a great deal of distress. The rules of the golf club decreed that she could not be a member of that club. In other words apparently a golf club can have rules which it can apply. The lady took the case to court and lost. The club was right. Therefore, a golf club is apparently able to exercise such a power.

I seem to recall that the lady in question set a great deal of store upon the value to her social life of membership of the golf club. But apparently a trade union is not able to exercise its own rules. That goes against the basic tenets of democracy and it certainly goes against what I would call justice.

Members opposite by the weight of their vote may very well impose their will and they may consider that they know what they are doing. I believe that the Government are bringing the term "democracy" and the ability of the leadership of a union to be seen to have some power, some status and some standing—not only in the union but in the community locally and nationally—into disrepute.

A great deal has already been said about balance and fairness. I honestly think that the Government have an opportunity in this modest way to recognise that if they are determined to strip away from a union executive its right not just to interpret its rules but also to apply them, then it is a very dangerous road down which they are going.

Lord Renton

I hope that the noble Lord will not mind if I attempt to answer his point about the lady and the golf club, which is quite different from the position of a union member.

Lord Graham of Edmonton

I agree.

Lord Renton

I am glad that the noble Lord acknowledges that. She does not have the same loyalties to a family and she is not dependent upon membership of the golf club for her employment or for her livelihood. She is not performing a service for children as teachers are and as nurses may do. These examples could be multiplied by others. That is an entirely different situation and, if I may say so, it is a false analogy.

8.30 p.m.

Lord Boyd-Carpenter

Perhaps I may add to what my noble friend Lord Renton has said. The analogy with the golf club and the charming lady in shorts is a false one for this reason. Trade unions are bodies given substantial privileges by law, the major one being not to be liable to be sued in tort in respect of industrial action. When you have bodies such as that which are favoured by the legislature with privileges of that sort, it necessarily goes with that that they must be subject to rather more obligations than bodies such as golf clubs, which have no such privileges.

Lord Dormand of Easington

The question of other loyalties is raised from time to time, and indeed the two Members of the Committee who have just spoken have said that. They have mentioned, entirely properly, the responsihilty of an employee to his family, the teacher to his pupils and nurses to their patients. One could continue with such illustrations. However, perhaps Members who have spoken will feel that this is a legitimate point. The people in all of the categories which we have mentioned are aware on joining a union that any action, whether industrial or of any other kind, will almost automatically mean that their charges (be it family, pupils or patients) will be affected. In other words, joining a union is a premeditated act. They know that that will happen.

In those circumstances, it seems to me that there are two alternatives although it is often said that there are no alternatives. The first is not to join a union; secondly, there is always the possibility of joining a union which does not strike. I mention the teachers' union, the PAT, which, as the Minister will know, will not strike in any circumstances. Will Members opposite not agree that that is a factor which must be taken into consideration by people when they join a union; and therefore when action is taken they ought to be a party to it on the strength of arguments made many times from these benches?

Lord Boyd-Carpenter

The noble Lord says that people do not need to join a union. That is not always true. From a practical point of view, even with the reductions which I am glad to say are now being made in the closed shop, there is still a considerable number of cases where a man simply is not going to get a job if he is not a member of a union. Therefore it is quite wrong and quite inaccurate to say that a man does not have to join a union; he may well have to.

The second point is that I do not believe that when a man joins a union he is saying: "Right, I am prepared to put the interests and wishes of the union and its well-being before all other rights and interests in which I am involved. I will be prepared to put the union before my wife and family; I am prepared to put the union before my employer; and I am prepared to put the union before those whom I serve at work". I do not believe that the ordinary man on joining a union takes that view at all.

Lord Dormand of Easington

In view of the kind of case put forward by the noble Lord and the kind of members we are talking about, perhaps he will accept that when an increase in wages, shorter hours or longer holidays are negotiated, those members will not say to themselves, "I am not fully behind the union in certain circumstances; I had better not accept the advantages which the union has just negotiated".

Lord Boyd-Carpenter

The noble Lord says that. Of course that is a wholly unreal approach and he knows that perfectly well. He knows that if an employer, for whatever reason, offers increased wages, it is likely that the ordinary human being will take them. That is nothing whatever to do with being prepared to give the union and its activities priority over the other interests, duties and obligations which he has. The noble Lord knows that perfectly well.

Lord Trefgarne

Perhaps I may say again that I do not intend to run through all the arguments which we deployed before dinner on the general issue. However, I shall address the amendment moved by the noble Lord. Frankly, the logic of the amendment is rather clearer than that of some of the earlier ones, but I am afraid 1 still cannot agree with it.

All employees who repudiate their employment contracts by taking strike or other industrial action face dismissal. That is so irrespective of when they started work. Protection against union discipline, therefore, equally needs to apply irrespective of when the individual started work. Employers cannot be expected to keep open for an indefinite period the jobs of those who have chosen to break their employment contract. Such a requirement would be likely to turn a shut-down into a permanent closure.

It is an employer's right to offer jobs to whomever he wishes, subject to the legislation on sex and race discrimination. On occasion he may need to recruit employees to counter the effects of a dispute. Any such employee is entitled to expect protection from union discipline for choosing to do a job offered to him.

It is not the job of the Government to intervene in individual disputes but rather to establish a sound legal framework in which employers and employees can shoulder their own responsibilities. The independent Advisory, Conciliation and Arbitration Service, for example, stands ready to provide assistance to the parties when there is any dispute. A question of whether to take industrial action is for employees to decide. Strike action has always put jobs at risk, either immediately or in regard to the longer-term damage which it does to the company.

I believe that the Government have now made clear the thrust and the logic behind the propositions contained in Clause 3, and I hope that the Committee will agree to it without the amendment which is proposed.

Lord Wedderburn of Charlton

This has been, for me at least, a more important debate than I had expected. Not only has it revealed the Government's opposition to the amendment, which I expected, in that it has revealed that they mean to have their full fill here; the clause has got the unions and they know it. It will be effective and it will make things difficult. It will harass them. They mean to have the lot. I did not expect anything else.

However, I did not expect one or two other points to be made in the way they were. For example, the noble Lord, Lord Boyd-Carpenter, said that the trade unions had the privilege of not being sued in tort. With respect, that privilege was repealed by Section 15 of the Employment Act 1982. There have followed six years in which that has not been true.

Lord Boyd-Carpenter

Of course the noble Lord is right about that section. But there still remains very substantial privilege as regards industrial action and being sued in respect of it. The noble Lord knows that as well as anyone.

Lord Wedderburn of Charlton

I know nothing of the kind. With great respect, privilege I know not for the union because it now stands with other defendants. That is not the way I would put it in any case. There are a few areas in primary disputes where the so-called immunity, which the noble Lord, Lord Boyd-Carpenter, would, I imagine, call a privilege, from the liability of common law still applies to the union or to any other person in the land who induces, furthers or contemplates a trade dispute. Perhaps on some other occasion we can debate just what that area is. With great respect to the noble Lord, in view of the way in which he originally put the point, I think that perhaps his view is not entirely coincidence in view of the current state of legislative play.

The more important point is that made by the noble Lords, Lord Boyd-Carpenter and Lord Renton. I shall not follow into the area of golf clubs, although I say to Members of the Committee that I know of certain families and other people who feel just as strongly about their loyalties to the golf club as some do about trade unions. However, I shall keep to the matter of the unions.

It is said that a golf club is different because you are dependent on trade union membership for employment. That is true in only two situations. One is where there is a union membership arrangement, some kind of closed shop or union security, the enforceability of which the Government are removing with this Bill. The second, which is the one to which I think the noble Lord, Lord Boyd-Carpenter, might be referring, although it was not clear to me, is where the employer decides to hire only non-unionists. It was curious that in the debate on this very Bill in another place the Governnment made it absolutely clear time and again that they were not placing any limit upon the discretion of employers as to whom they should hire. I imagine that the second situation is not objectionable to the Government and they are removing the first. It baffles the imagination how that is a justification for this type of clause.

A further point came up, of which the Government should be warned. My noble friend Lord Dormand raised the question of people who took scabbing in strikes to the extent of helping the employer to defeat the strike for extra pay. One could say to the Government that that is likely to affect industrial relations subsequently, and I am not sure that many employers would take the position that the Government have adopted. Most employers who know that they have to live with their workforce would not be very pleased if this happened and it could happen without senior management knowing. I am not sure that they would always want the union discipline rules to be put aside.

Be that as it may, my noble friend asked why the free-rider who does that kind of thing should benefit from collective bargaining. It was said that every sensible employer applies the benefits of collective bargaining to all employees within the range of the agreement. That has been the British way and it has been the British trade union way.

If one looks ahead—if the Government can look ahead—it should not be thought that that situation will continue for ever. I do not predict it, but this sort of legislation could produce a very undesirable drift towards bargaining for members only. With competitive unionism and bargaining for members only the Government would produce an even worse jungle than in some places now exists partly as a result of their legislation and partly because of much more important economic factors. One should never overrate the importance of law or, come to that, of lawyers.

It seems to me that no reason has been given against this amendment except that the noble Lord, Lord Trefgarne, says that all those on strike must face the possibility of lawful dismissal. As the law stands he is right. But that is only right because the Government will not change the law. That is only right because they have made the law on unfair dismissal worse. They seem to regard it as law carved upon tablets of stone that every striker can be dismissed. Now they want it carved on another bit of stone—against the strikers, the union and the majority—that the minority can be protected. I come back to my first words, even this tiny amendment is too big for the Government to swallow. It is quite extraordinary and I hope that the record will show just how the Government replied. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.45 p.m.

Lord Wedderburn of Charlton moved Amendment No. 23: Page 5, line 41, leave out ("if it is shown") and insert ("where")

The noble Lord said: In speaking to Amendment No. 23 I believe that I can speak—and this is a great pleasure—to Amendments Nos. 24, 25, 26, 27 and 28.

This amendment concerns another paragraph in the same subsection which perhaps we might call the "assertions" paragraph. When the Government first drafted the Bill they said that a member who made any assertion that the union, or trustees or a union representative—I shall refer to the union—contravened or proposed to contravene any rule of the union, agreement or rule of law (in other words, to act unlawfully) should not be subject to union discipline.

An extraordinary thing happened at the Committee stage in another place. It was pointed out to the Government that the clause as drafted allowed the member without fear of unjustifiable discipline to make assertions that were false or in bad faith or to make defamatory assertions; there was no limit. An extraordinary thing happened; the Government made a concession. I am hoping that tonight the Minister will follow that great precedent of his predecessor in another place and make a further concession.

The concession related to subsection (4) and it is to that subsection to which the list of amendments is directed. Perhaps I may summarise them briefly for the Committee. As it stands the subsection means that the union has to show the reason for the disciplining and that there was no other reason for disciplining the Member. It is not entirely clear in paragraph (a) where the burden of proof lies, but I put that aside. That should cause no difficulty in the normal case. The real problem lies in paragraph (b). On the basis of the Government's draft it seems to me, and the Minister will correct me if I am wrong, that the union must show that the assertion was false and that in making it or assisting someone else to make it the member acted either in the belief that it was false or in bad faith. The union must show that he is a fraud.

I say that that is the wrong burden of proof, or at any rate it is a burden of proof which is placed too heavily solely on the union. Therefore our amendment—which I hope will do the job that we intend but the Minister may perhaps dislike a couple of the words, as I do myself now, but the point is to put the principle to the Government—provides that if the union cannot show that the assertion is false and the member is a fraud then he must show that at the time of making the assertion at least he had reasonable grounds for saying that it was true.

I keep moving more and more modest amendments. The difficulty is that instead of growing higher, as should be the case when one is more moderate, my spirits get lower. I beg the Minister to consider whether some obligation should not be placed upon the person who is in this extraordinarily protected position that at least he should show not that what he said was true but that at the time that he said it he had reasonable grounds for believing it to be true. If the Government did that, at least it could be argued that they were protecting the genuine case. If the Government do not do that the fraudsters are protected. As any counsel knows, to prove that someone has said something false and knew it to be so is the worst burden of proof in the world to have to take on. That is what the clause makes the union take on under paragraph (b).

With a flicker of hope, I ask the Minister to make this paragraph cover the genuine case and not cover the fraudster. I beg to move.

Lord Renton

The situation created by this group of amendments is rather interesting from the legal point of view. As I read it, under the clause as it stands the burden of proof will be upon the trade union throughout. Indeed, it is quite clear from the amendments which the noble Lord has moved that he intends the burden of proof to be shifted not only in relation to Amendment No. 27, which to his mind introduces a new factor (with which I shall deal in a moment), but to be shifted altogether. If he had not attempted to move the burden of proof by means of Amendment No. 23, we should have had the rather strange position that the burden of proof would be upon the union throughout, except with regard to the factor raised in Amendment No. 27, and that on that factor the burden of proof would be upon the member of the trade union.

That is altogether a rather confused situation, but in the statute we must get it perfectly clear where we expect the burden of proof to lie. If in line 41 the words "if it is shown" are omitted and we replace them simply by the word "where", we are not imposing a burden of proof on either party, as I understand it. We are simply leaving it to the court to decide by means of an objective test.

However, courts like to know where Parliament thinks that the burden of proof should lie, and in nearly all cases that is made abundantly plain. I am very doubtful whether it is right to destroy the burden of proof requirement entirely and to have no burden of proof. That is the first difficulty that I find in this group of amendments.

However, even if that were the case, I am not quite sure that Amendment No. 27 adds a new factor. In the Bill as it stands we find the fact that, that assertion was false … or … that individual acted either in the belief that it was false or otherwise in bad faith", is very close to stating that he cannot show that he had reasonable grounds for believing it was true. In other words, as I understand it, we are doing a little hair-splitting. If I have misconceived the position, perhaps I may be forgiven because it is a slightly confusing one.

Lord Trefgarne

I was sorry to hear just now from the noble Lord, Lord Wedderburn, that his spirits were beginning to flag because of these matters, particularly in the context of this amendment. As he rightly pointed out, during the proceedings in another place the Government made a significant concession, and the clause as presently drafted represents that concession.

My honourable friend the Parliamentary Under-Secretary of State accepted during the Committee stage in another place that individuals who had acted in bad faith or maliciously should not be protected from union discipline, and he introduced a government amendment to address that point. The Government, however, consider it important that a union member should be able to point out that his union proposes to break or has broken its own rules or the law without fear of disciplinary action being taken against him. Protection from such discipline is essential if members are to be in a position to ensure that unions behave as they should. It must therefore be right for the burden of proof to be upon the union to show that a member has made a false assertion or has otherwise acted in bad faith.

The clause as it is presently before the Committee represents, as I have said, a significant concession by the Government. I am afraid that I cannot agree that we should go further, and I hope that the noble Lord will not press us to do so.

Lord Wedderburn of Charlton

The nature of the Minister's reply has brought up my spirits from any point of flagging, because it is really quite absurd. However, perhaps I may first say something in regard to the remarks made by the noble Lord, Lord Renton. I think that the noble Lord appreciated that when I said that I was not entirely happy with the wording of the amendments, my unhappiness was concerned with the point about the burden of proof. I accept that there could be better drafting, as he said.

However, the amendment was drafted in the short compass that it took on the normal assumption that he who asserts must prove. As the Bill stands, it seems as though the burden of proving everything lies on the shoulders of the union —that is what the Minister seemed to say—although the wording even now is not wholly clear.

I part company with the noble Lord, Lord Renton, in saying that, although what the Minister calls a significant concession was made in another place, that concession was simply that the unjustifiable discipline doctrine should not apply if it turned out and could be proved that someone had been telling lies. For the Government to regard as a significant concession the fact that their doctrine should not apply to liars hits a new low in government standards. I say that quite frankly. At least that is my view.

Having obtained that concession, the question that was put by the noble Lord, Lord Renton, then arises. He said that the trade union should prove that the allegation was false. I ask the noble Lord to consider with me the real situation. Obviously there is some dispute within the union because such things always happen when tempers are hot; and when the member looks back perhaps he realises he did not mean to do what he did; we often do not.

However, the man goes on television and makes a series of charges about union officers, all of whom are honourable men. One must also remember that many of them are people who operate the branch in their own time—and we all know that if it were not for volunteers many British trade unionists would find life much more difficult. So these officials are maligned in a way in which the falsity is very difficult to prove. Indeed, by the time these statements have gone out on television and appeared in certain newspapers the next day or over the weekend—newspapers for which certain Members of this Chamber write—the damage to these individuals has been done and it is damage of the most extraordinary kind.

The Government continually talk to us about families. What about the branch chairman's wife who breaks down because of what has been said about her husband? It is said that in that kind of situation, when the union branch has its meeting, say, on the following Monday, it can take no action (which it may have full power to do under the rules) unless it can prove that the statement was false and that the man did not believe it. I say that that is not fair. In such a situation it is at least for him to say, "Well, I see it may not be entirely true but I had reasonable grounds to believe it at the time". That is all that this amendment seeks—nothing more than that. It does not require that he proves that it must be true. It simply says that he must show that there are reasonable grounds.

I begin to feel that I do not speak in a legislative Chamber of the United Kingdom but in an Alice in Wonderland world if that argument does not convince the Minister that this matter should be looked at again before we come to Report stage. I want him to take that example home with him tonight. The noble Lord smiles. I am afraid that I take the matter seriously. This matter concerns real branches of the union and real people. These people are individuals—just individuals who run the branch—and the man has made charges against them. They will find it very hard to find the proof that the statement was false. Surely the union's rules should then be applied.

I hope that the Minister will give us some comfort, but if he does not I shall have to beg leave to withdraw the amendment.

Lord Trefgarne

I fear that I have no comfort to offer the noble Lord. He has referred at length to the pressures that may be brought to bear on the families of trade union officials who had been wrongly criticised by a member. If we talk about pressures being brought to bear on people in the past few years we seem to have heard a great many stories of pressures not being brought to bear upon the officials of trade unions but brought by officials upon their members, particularly in some of the more bitter disputes that we have had in recent times.

I do not think that the example given by the noble Lord was a good one. I do not think that there is much merit in his amendment. The Government have moved some way toward his position and that of his honourable and right honourable friends. I am afraid that we cannot go any further and I hope that he will withdraw his amendment.

Lord Wedderburn of Charlton

Before the Minister sits down, I believe that, apart from obtaining the leave of the Committee, this may be the only opportunity I have to put a question to him. Let us assume that I accept every single case that he advances of oppression by a union of a member. How on earth does that justify the oppression of the branch chairman and his family by the member, who may be a fraud and a liar and whom he is out to protect in his clause?

9 p.m.

Lord Trefgarne

All that the trade union official has to do is to show that what the member is alleging is false. His position is then quite protected.

Lord Renton

In the course of the further interventions by the noble Lord, Lord Wedderburn, he has not mentioned the vital precondition of all this that we find in the opening words of the subsection, an individual who has been disciplined by a trade union". That is the situation with which we are faced.

Lord Wedderburn of Charlton

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 24 to 28 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 29: Page 6, leave out lines 5 and 6

The noble Lord said: This amendment and the amendments that follow it pose this question to the Government: what is freedom of association? That may sound a rather academic question but it is not. It is only on the basis of free association that in democratic countries organisations—whether they be trade unions, golf clubs or the myriad organisations that make up our society—can operate in the way that their members wish.

The Government know that there are ILO conventions. The International Labour Organisation Convention No. 87 on freedom of organisation, freedom of association, states in Article 3 that workers and employers shall have the right to draw up their constitutions and rules. It is a long time since our law also approached the question of organisations—as the ILO and some other countries do—by referring to organisations of workers and organisations of employers where some parity is maintained. It says that they shall have the freedom to draw up their own rules and electoral systems in full freedom, and that the public authorities shall refrain from interference which will restrict that right or the lawful exercise of it.

The Government were pressed on this matter in November and December in Standing Committee F of another place. It is interesting to note how strongly the government Ministers in that Committee firmly adhered not only to the ILO Convention No. 87 and Convention No. 98 but also to the European Convention on Human Rights and, perhaps more importantly in this respect, the European Social Charter (especially Articles 4, 5 and 6). All these go to make up an international standard which, as many Members of the Committee will know, this country did a great deal to create.

The germ of many of those standards is in the industrial relations practice of Britain—not so much in its laws but in its practice in the past. The exceptions that the ILO has come to recognise—and these the Government relied upon for their 1984 Act in terms of control of trade union elections and procedure—are if an exception is made to protect the democratic rights of members and to provide a sound administration for the members to exercise their rights.

In my submission, the Government appear to be infringing those principles in spirit and in the broad sense of free association if they say this to an organisation—I put the point very quickly. "You may adopt these lawful rules. There is no penalty in the law for having a rule, for example, that says a member shall be fined so much if he does certain things". There is scarcely an organisation in the land that does not have a rule of some such kind. However, if one says to that organisation, "You may have your rules and they are all lawful, including expulsion rules, but you cannot use your expulsion rule" (this amendment is about the rule of expulsion and we shall come to other rules later) "except on pain of very strong penal consequences," then one is surely breaking the principle that that voluntary association can choose its colleagues.

I am not sure that the Government have considered this aspect of the matter, because the arguments that they use lead to the conclusion that they have addressed us tonight without consideration of this point. However, sometimes their lack of consideration shows through. In another place, in order to justify this position, one Government Minister (I have the references if the noble Lord wishes them, but I am sure that he knows about the Committee stage in another place) alleged that companies could not expel members of any kind of company, be it limited by shares or limited by guarantee, and that was different from trade unions. However, that is wrong. If the articles allow it, companies, whether limited by guarantee or by shares, or indeed companies of any kind, can, as the authorities show very clearly, exercise their expulsion rules (as we would call them for a union) or regulations (as they would be called in the articles), and such limitation is placed upon them of similar kinds.

It would be quite extraordinary if one said to a company, especially a body registered as a company limited by guarantee, as a social organisation, many of which have been engaged in litigation, "You cannot exercise that rule." One may say that one cannot have certain rules and try to justify that, but, if one allows them to have the rule and then says, "You cannot exercise it except on pain of serious penalty," that seems a very stong limitation on the freedom of association.

Companies can do it; other organisations can do it. We know the Government's view on that. It is no good giving those examples because to them trade unions are special. Trade unions are unique. No power of analogy or argument drawn from other organisations ever has any impact on the Government. That we know. However, in another setting, do they not consider that this is a serious limitation on the right of free association, which they may perhaps have to consider with regard to the various international standards and instruments to which they pronounced their firm adherence at the earlier stages of the Bill in another place? I beg to move.

Lord Trefgarne

As I dare say is now clear, the Government believe that union members should not be disciplined at all for working during a strike or other industrial action or for seeking to enforce their legal rights. We recognise that unions cannot in the end be forced to keep individuals in membership any more than employers can be forced to continue employing someone. The Clause reflects these principles. It provides the individual with a right to compensation if expulsion occurs analogous to a dismissed employee's right to compensation in a parallel situation.

If we were to accept the amendment it would imply that discipline short of expulsion was in some way worse than expulsion itself. This might encourage unions to expel individuals whom they would previously have treated less harshly. It would also take away the benefits of union membership for those whose only crime (if that is the word) was disagreement with the leadership, perhaps on one occasion only. I do not think that that would be right.

I thought that the noble Lord might have referred to the International Labour Organisation, because I am aware that the TUC has complained—

Baroness Turner of Camden

My noble friend did.

Lord Trefgarne

I apologise; indeed he did mention it. I am aware that the TUC has complained that this provision may breach the convention. The Government are quite convinced that that is not so. We believe that the provision is entirely within our international obligations including the convention to which the noble Lord refers.

The principles of what we are seeking to achieve in the clause are very clear. I shall not repeat them to the Committee again. The amendment would to an extent undermine those principles and I cannot therefore agree to it.

Lord Wedderburn of Charlton

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 31 to 34 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 35: Page 6, line 37, at end insert ("and discipline which is unjustifiable for the purposes of this section shall not constitute unlawful means for the purpose of any liability in tort").

The noble Lord said: I wish to put upon the record a clearer statement than that which the Minister obtained from Amendment No. 15. It concerns a similar point, which is that whatever the limitations on remedy and on right which appear in Clause 3, there is the possibility that a breach of Clause 3 by a union could give a third party a right of action in the High Court. I stress the word "could". I believe it is an ambiguity and that this would be another way to remove it. If the Minister will not accept this amendment now, will he please consider it before Report? I beg to move.

Lord Trefgarne

I undertook to examine a similar matter in connection with Amendment No. 15. I am happy to give the same assurance in connection with Amendment No. 35.

Lord Wedderburn of Charlton

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 36 not moved.]

On Question, Whether Clause 3 shall stand part of the Bill?

Lord McCarthy

The Minister was asked by my noble friend Lord Wedderburn to bring him some comfort; I thought he said as Chesterton said: I tell you naught for your comfort, Yea, naught for your desire, Save that the sky grows darker yet And the sea rises higher". That is certainly the case in relation to the amendment. The Minister will not be surprised to learn that we oppose the Question that Clause 3 shall stand part of the Bill.

There is much to be said. We have stated our case on all the amendments which we have put down, some of which have been moved and some because of the time of night have not. Essentially our case was made in speeches in the fine debate which we had on the amendment moved by the noble Baroness, Lady Seear, and the noble Lord, Lord Rochester, where we sought to protect strike action within the context of the 1984 Act. We told the Committee that we thought it was unfair and unwise and several Members of the Committee said it was way, way over the top. But that was a general argument about the general state of the clause. On that occasion I accept that we were asking for a major change in the clause. If that amendment had found acceptance in the Committee—I would not say it was a wrecking amendment—it would have made a major change in the scope and value of the clause to the Government.

The amendments that we have moved since then have been pianissimo; they have been tiny; they have been small in the extreme. Of course we have had the usual answers that it is unnecessary, it is unacceptable or it is unclear. Sometimes it has been all three; unacceptable, unnecessary and unclear.

My noble friend Lord Wedderburn said, "Surely you can allow the unions some right of disciplining the individual who subsequently acts against the union". The Government said, "No, not under any circumstances. So much the worse for him". My noble friend said, "Surely you cannot suggest that a member of a union is free to slander, libel and villify without regard for the truth. He must have reasonable grounds". "Not at all", they said. "It will serve them right". My noble friend then said, "Surely we should observe, as we see it, the ILO conventions, the European social charter, in regard to the right to expel". They said, "Not under any circumstances. It might encourage expulsions instead of fines, which are unlawful anyway". Therefore we oppose the Question that Clause 3 shall stand part of the Bill.

Lord Rochester

As has the noble Lord, Lord McCarthy, I too have already given reason enough as to why I believe that the clause should be omitted from the Bill. I shall not repeat the reasons. It is a rotten clause and should be withdrawn.

9.15 p.m.

Lord Boyd-Carpenter

I believe that at this stage the relevant thought is that the side note to the clause is: Right not to be unjustifiably disciplined". That is the essence of the clause. It is interesting to note that the representatives of the Labour Party in the Committee oppose it. In so far as one can ever deduce the thoughts of the representatives, or representative, of the Liberal Alliance, they apparently believe the same. Opinion outside the Committee will be that it is proper to provide that people in unions should not be unjustifiably disciplined. It is no argument for amendments to say that they are very small, as the noble Lord, Lord McCarthy, has attempted to adduce: they were very small, they were insignificant and they were wrong.

Lord McCarthy

is the noble Lord's position that the trouble with us is that we are too concerned as to whether the worker is unjustifiably dismissed by the employer; and he is too concerned as to whether the worker is unjustifiably disciplined by the union?

Lord Boyd-Carpenter

The noble Lord will realise that the first point does not arise in connection with the Bill. We are discussing the second point. It is clear that the representatives of the Labour Party believe it to be right that a worker should be unjustifiably disciplined. I believe that that will be noticed outside this Committee.

Lord Wyatt of Weeford

Despite my reservations as regards an earlier part of the clause, I believe that it is preferable to have the whole clause, even with one defect, than not to have it at all.

Lord Trefgarne

I do not have much to add to the discussion. At the end of the remarks that I made before the dinner break I said that the proposition was contained in the Green Paper published last year. It was also contained in the Conservative Party Manifesto at the last election and was approved by the electorate. It was approved by another place when it considered the provisions of the Bill. It was also approved by your Lordships' House in the Division before the dinner break and that was aimed at the principle of this Bill. I do not believe that the proposition could have better credentials and I recommend to the Committee that the clause remains part of the Bill.

Clause 3 agreed to.

Clause 4 agreed to.

Clause 5 [Further remedies for infringement of right under section 3]:

[Amendment No. 37 not moved.]

Lord Trefgarne moved Amendment No. 38:

Page 8, line 13, at end insert— ("(3A) Where the Employment Appeal Tribunal or any industrial tribunal is satisfied, on an application under this section, that it would (but for this subsection) be required by virtue of subsection (2) above to dismiss the application, it may, instead of dismissing it, transfer the application to an industrial tribunal or, as the case may be, to the Employment Appeal Tribunal; and an application transferred under this subsection shall be proceeded with as if it had been made in accordance with that subsection at the time when it was originally made.").

The noble Lord said: I should also like to speak to Amendment No. 123. This is a technical amendment concerning the method of applying for compensation in respect of unjustifiable discipline. In brief, the amendment ensures that if an individual makes his application for compensation to the Employment Appeal Tribunal—the EAT or, I suppose, "eat" for short—and the EAT decides that the application should have been made to an industrial tribunal because the union has revoked the finding and reversed the penalty, then the EAT will have the power to remit that application to a tribunal. Similarly, a tribunal will be empowered to remit applications to the EAT.

Without the amendment, the EAT could only reject the application leaving the individual to make a new application to an IT. This would be unnecessarily bureaucratic and, depending upon how long the EAT took to come to its decision, could mean that the individual lost his right to apply for compensation because of the time limit specified in Clause 5(3). I believe that this is a technical clarification and correction. I am happy to give the Committee further details if it wishes, but in the meantime I beg to move.

On Question, amendment agreed to.

Baroness Turner of Camden moved Amendment No. 39: Page 8, line 17, at end insert ("having regard to the loss suffered by the complainant").

The noble Baroness said: I rise to move Amendment No. 39 and to speak also to Amendment No. 40, because the two amendments run together. Their intention is to ensure that any compensation awarded under this section should have regard to the loss suffered by the applicant.

In many instances it is quite possible that the financial loss will be quite small. In fact, in financial terms it could well be non-existent. We are dealing here, in the main, with individuals who have decided to ignore the union strike call despite a majority in a ballot. Presumably such people will, in most cases, have gone to work and may have done much better than their colleagues who were on strike. Some of them may possibly be much better off because they could have been doing the work of their colleagues on strike and perhaps making money on overtime which they would not normally have had.

If the union attempts to discipline those people, they are to have access to the courts and may claim compensation. It seems very unreasonable that the court should not be bound to consider what losses have been sustained by the applicant when it awards compensation. In fact, if substantial compensation is awarded under this section in such cases, it could lead to great disturbance in industrial relations at local level where the people who have actually been on strike would have lost a good deal of money while on strike in order to gain benefits for the whole of the workforce.

If this amendment is carried, we shall not need the wording set out in lines 37 to 40 since that prescribes a minimum amount. It should be open to the court to award only nominal damages if the damage to the individual has only been slight. I beg to move.

Lord Trefgarne

I believe that the Bill as drafted does exactly what the noble Baroness wishes, because as it is drafted tribunals and the EAT will be able to have regard to loss suffered by the applicant when deciding whatever amount is, just and equitable in all the circumstances". That will have to take clear regard of the loss actually suffered by the applicant. Therefore, I believe that this amendment is not necessary. Indeed, I believe that its adoption would rather complicate the clause and I hope that on reflection the noble Baroness can agree with that.

Baroness Turner of Camden

I cannot agree with that, and I am sorry about that. I note that the Minister thinks that the first amendment, No. 39, is already covered in the legislation. I said that I was speaking also to Amendment No. 40, and if one looks at lines 37 to 40 on page 8 one can see that a minimum is specified. The subsection states: shall not be less than the amount for the time being specified in Section 73(4A) of that Act (minumim basic award in certain cases of unfair dismissal)". In other words, if that still stands in the legislation it will not be open to the court to award only nominal small amounts of damages or small amounts if the damage to the individual—the financial loss—has been very small or even non-existent. Perhaps the individual may have gained financially through not having been involved in the dispute which was the cause of the original issue. Therefore, I am not happy with the reply from the Minister and would like him to speak to that amendment.

Lord Trefgarne

I apologise. I should have been rather more forthcoming on the second point because the noble Baroness is also seeking the removal of the minimum award. The minimum award reflects the seriousness of cases where the penalty has not been revoked. Unions will therefore have an incentive to rescind displinary action before individuals apply to the Employment Appeal Tribunal if they know they will otherwise be liable to pay at least a minimum award. This liability cannot of course arise until at least four weeks after declaration of unjustifiable discipline has been made by an industrial tribunal. It is important to keep the minimum award provision in place because, as I have said, that gives the union an incentive to rescind the action before the EAT machinery creaks into action.

Baroness Turner of Camden

I am sorry that I cannot agree with the Minister. It seems to me that if we have within the legislation provision for a minimum award we are removing from the courts the opportunity and the flexibility to decide on nominal amounts. That is quite unjustifiable in the circumstances. However, I shall not press the amendment to a Division at this stage but will look carefully at what has been said before Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 40 not moved.]

Clause 5, as amended, agreed to.

Clause 6 [Right to inspect union's accounting records]:

Lord Wedderburn of Charlton moved Amendment No. 41: Page 9, line 14, leave out ("six") and insert ("three").

The noble Lord said: We now come to Clause 6. "Accounting records" is a very wide phrase and is defined in Sections 10 and 11 of the Trade Union and Labour Relations Act 1974, usually known as TULRA. It is necessary to remember of course that most unions have a rule concerning inspection. The reason for that is the 1871 Act, over 100 years ago, requiring unions which registered, as most did under that provenance, to have a rule about the inspection of books and accounting records. The Green Paper took up this point saying that that requirement had been lost—which is true—in the 1970s. The Green Paper was not wholly accurate on the way it had been lost but that is another matter.

Therefore, the Government have come forward not with something like the 1871 provision, which gave unions a flexibility which is not allowed them under this legislation, but with a specific rule about inspection of the accounting records. Our amendments, in series, are meant to point to a number of these specific regulatory features which we say are unnecessarily rigid and extensive. Amendment No. 41 questions that extension.

A union is to be told that it must keep its accounting records for six years. Obviously that is related throughout the rest of the clause to the area of the obligatory inspection, if a member requires it, bringing his accountant with him. All the books and records, as we see in the clause, not merely of the union but also of every branch and section must be kept for six years. If one says that that is a hard burden on many branches that are run from home in the spare time of members and if one raises the question of whether the right to inspect is going to carry the right of a member into the branch secretary's home, one begins to see the difficulty.

This amendment asks: why six years? From debates in another place it seems to be the case that there was some analogy with company law. If there is not, perhaps the Minister will tell us where it came from. If there is an analogy—and I put it more widely—with other associations, there is only one place known to me at least where one finds a requirement for accounting records, as opposed to filed accounts, to be kept for six years. In private companies it is three years.

If one was to take an analogy with company law, perhaps one should have gone to Section 222 of the Companies Act 1985 and said that this is an analogy with private companies. Some private companies are pretty big. But the Government have chosen six years, which is the period for the public company. As regards a trades union's period of limitation for the retention of accounting records not merely at headquarters but at regional district, every single branch and section is equated with a public company. I suggest that this is ridiculous. It is ridiculous in terms of the amount of paper or technology involved. If every branch secretary had the latest word processor the number of bytes or other electronic measures that would be taken up over the six years would become rather large. It seems to me to be rather absurd.

It may be that the Minister can say that the Transport and General Workers' Union has 1½ million members—at least I hope it still has—and therefore it can be equated. I know that the Minister hopes that it has not, but he will see that number increase when employment improves. The Government keep telling us that employment is improving.

The Committee may wish to consider the national league for the blind and the disabled, which has 2,800 members. Why should that organisation be equated with a public company for the purpose of the six years' period, let alone the Sheffield Wool Shearers who have 17 members'? They are in. It seems to me quite absurd. We ask the Government, as we have done throughout, to justify this clause. In another place the debate on this clause left the Government exposed without the justification of even the kind of arguments we have heard this evening. I beg to move the amendment. I ask the Government: why not three instead of six years?

9.30 p.m.

The Earl of Dundee

I have listened with interest to the argument put forward by the noble Lord, Lord Wedderburn. I agree with him straightaway as regards his remarks concerning public companies. I do not believe that it would ever have been a good idea for the Government to equate the arrangements for public companies with what they have in mind in this clause. I believe that such analogies are very misleading between unions and companies. Companies and trade unions have quite different purposes and there is really no valid analogy concerning the relationship between a trade union and its members and that of a company and its employees or shareholders.

The noble Lord also said that he believed what we were proposing was going to be rigid and very difficult for everyone concerned. I cannot agree with that at all. If we consider the difficulties which will arise—namely, altering arrangements that the unions currently make— I think we agree that the difference in practice would be very little. Presumably, unions already have to keep some kind of accounting records for at least a period of one year. Many may already be using computerised systems where storage costs may be marginal once the system has sufficient capacity to keep the records. That may mean little more than a place to keep the computer tape.

In any case, it would be worth little to create a right for members if that right was severely limited by the fact that it applied only to records created in or relating to a period of less than six years. Unions with substantial amounts of accounting records will have large memberships and any additional costs which arise to comply with the duty to keep accounting records for longer than the law currently requires will translate into a very small increase in the subscriptions of the individual union member, if it is quantifiable at all in those terms.

The noble Lord asked me to say what are our main reasons for considering a particular period at all, and in this case six years. I can give an assurance to the noble Lord that we have put serious thought into this matter and our reasons for so proceeding are good ones. It is reasonable to assume that members may be interested in more than the current year's accounting records. For example, they may be seeking to establish how long any perceived or suspected problem in the union's affairs or transactions had existed. They might need to have access to accounting records, for example, in order to found a legal action. The period of six years, therefore, appears in Clause I because it corresponds to the period during which a court may, generally speaking, entertain an action rather than rejecting it on the ground that the period of time between the date of the complaint and the commission of the wrongful act is too long. With those reassurances, I hope that the noble Lord may see fit to withdraw his amendment.

Lord Wedderburn of Charlton

Curiouser and curiouser, although I share the ground that the noble Earl offered me. I accept that there is no real analogy between the command structure of a company and the democratic association of a trade union. That is why I would be surprised if the Government had made an analogy here, just as there would be no analogy between company law and trade union law if they enact this clause, because the shareholder has no right in law to inspect the accounting records. One might have thought that, with the kind of manipulations which have gone on in the City in the last few years, if the Government were really concerned with malpractice, they would have given the shareholder a right to look at the accounting records of companies back over the last six years. However, there is not a word, not a whimper, not a single syllable upon that. Why? They are only interested in regulating trade unions.

The noble Earl, with respect, gave it away. What came high on the list? The member might want to bring a legal action against the union of course and he will have state apparatus in the form of the commissioner to help him do it. That is what it is all about. We understand that. So there is really not much point in asking, "Why six?" I suppose the amendment should have been, "Why six? Perhaps you would prefer 12", because the noble Earl's arguments would lead with equal validity to 12, 24 or even 100.

There is one small point which the noble Earl does not seem to appreciate. He says that the provision will need only a small increase. I wonder whether he really understands the job of being a branch secretary of a large union on the ground at home, late at night, coming home from work and going off to the union meeting room. We know what the Government are about. They are asking those people to keep six years' stuff and make sure it is all there when this accountant comes along to inspect it in their front parlour because they know they will not take on the job. That is another way of making trade unions cease to operate effectively. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCarthy moved Amendment No. 42: Page 9, line 25, after ("below") insert—("by making available to that member for inspection the records relevant to the request which relate to the period ending with the date of the request and commencing with the date of the most recent return made by the union to the Certification Officer under section 11(2) of the 1974 Act")

The noble Lord said: It is necessary to read though this amendment at this time of night because Members of the Committee may not appreciate how modest it is.

We are saying that the limits of the intervention and right to inspect the accounts should be, by making available to the member for inspection the records relevant to the request which relate to the period ending with the date of the request and commencing with the date of the most recent return made by the union to the Certification Officer under Section 11(2) of the 1974 Act". So instead of being able to go back six years, you would only be able to go back to the date of the most recent return made by the union to the certification officer. We would argue that if you have a return from the certification officer, you have the necessary information that you require to see what the broad financial position of the union is. If your argue, as you might well, that dreadful things have happened to the finances of the union since the most recent return made by the certification officer, you have a right to see the records since then.

However, the problem I have with this debate so far is to find any real justification for anything at all that the Government want to do in this clause. It is very significant, is it not, that the Green Paper is very strong on examples? At least it has the same old examples; it does not have this secret reservoir which the Minister has and which we are all hoping to see. The examples of abuse are all about use of the National Union of Mineworkers' funds at the time of the miners' strike. It does not deal with the parts which start at paragraph 3.23 of the Green Paper: Possible Changes: Members' access to union accounts". The Green Paper does not produce any scandals, nor does it allege any cases where those particular provisions in Clause 6 actually apply. We have no concrete cases at all. Of course, I accept that the Minister may have a reservoir of which he may be about to give me sight. I hope that he is. It would be even better if he were to give us prior sight of such a reservoir. But perhaps that would not be a good idea from his point of view.

In the Green Paper there is no justification at all for what is being suggested. All it says is that although there is a right to inspect annual returns to the certification officer in the Trade Union and Labour Relations Act 1974, the Government do not believe that that provision is sufficient. Therefore they believe that there should be a right to inspect accounting records, although we are not told in the Green Paper—as the noble Lord, Lord Wedderburn of Charlton said, we have to guess—exactly how wide those accounting records will be. We do not know whether the member will be able to look across branches and back over six years at the salaries that officials and branch collectors receive; the mortgages that the union takes out; the ex gratia payments that the union makes and the commercial companies with which it deals. We do not know whether the union member living on one side of the country at, say, Land's End will be able to obtain the records six years back of what happened in a totally different section of a union—for example, the Transport and General Workers' Union—in John o'Groats. The Minister has said that none of this procedure will take much time; none of it will be much of a problem for the unions and that all of it will be perfectly easy for them to do.

If it is to be done at every level and at every branch, it will have to be done by lay members of the union. The overwhelming majority of branch secretaries are lay members. They give their services free of charge or for a pittance. Now they are being told that they must keep records for six years. Somehow we will have to find out how much they have to keep and in what form because, unless they do so, the union is likely to find itself in some kind of legal difficulty.

We say that there is no conceivable justification for this requirement. We say that the only possible justification is to provide that the annual returns that are given to the certification officer cannot give you an immediate, up-to-date, record of the state of your union and therefore you ought to be able to obtain any further information from the date of such a return. I beg to move.

Lord Rochester

This may be a convenient point at which to express a general view on the Government's proposals under Clause 6. As the noble Lord, Lord McCarthy, has reminded us, under the Trade Union and Labour Relations Act 1974 unions and employers associations already have to make an annual return to the certification officer and keep proper accounting records which provide a true and fair view of their affairs.

I see no reason to give union members, accompanied by professional advisers, a further statutory right of access to their union's accounts. The noble Lord, Lord Wedderburn of Charlton, has already reminded us that companies are not legally obliged to provide such detailed information which the Government now have in mind for trade unions. For example, shareholders have no right to financial information on a plant-by-plant basis, nor to inspect the company's books. In my view it would be better merely to require employers and trade unions to disclose to their employees or their members, as the case may be, appropriate financial information as envisaged in the Industrial Relations Act 1971 (in respect of employers) rather than impose this administrative burden on trade unions.

9.45 p.m.

Lord Renton

I assume that noble Lords opposite accept that Clause 6 is desirable and are trying to improve it.

Noble Lords


Lord Renton

Not so: I am surprised at that in view of the strong arguments put forward in the Green Paper for making unions accountable to their members.

Lord Wedderburn of Charlton

I can perhaps put it briefly. In respect of the inspection of accounting records, requiring bodies generally, as the noble Lord, Lord Rochester, said, to have a rule of reasonable proportion in that area seems sensible. It is the rigidity, extent and absurd proportions of the clause that we cannot possibly accept.

Lord Renton

In other words, the noble Lord accepts the principle that there should be some right of inspection by union members. That means that the unions must keep the accounts in such a way that they reveal what needs to be revealed.

I shall deal with the four items mentioned in the amendment. First, there is information, the disclosure of which would be against the interests of national security". There, I think the noble Lord has a point.

Lord McCarthy

I think that the noble Lord is talking about the next amendment. We are dealing with Amendment No. 42.

Lord Renton

I must apologise to the Committee for jumping the gun.

Lord Trefgarne

My noble friend Lord Dundee will reply to the amendment in a few moments, but I wonder whether I may be allowed to intervene briefly on one point. The noble Lord has spoken on many occasions about the great reservoir of cases to which I have referred. I did not say that I would reveal that reservoir to noble Lords. I undertook to write to the noble Lord, Lord Wedderburn, about the international implications, and that I shall do; but the reservoir is for occasional revelation in small parts.

Lord McCarthy

That is the problem that we have with the noble Lord. We asked him two questions on virtually the same basis. We asked, "Can you tell us more about your statement concerning other countries that do such things?" He said, fairly and openly, "Yes, I will tell you more. I will not burden the Committee with it. I will write to you." Is that right?

Lord Trefgarne

That is correct.

Lord McCarthy

I ask the Minister another question. I say, "What about all the vague statements you have made about all the other cases you have; this reservoir of cases. Can you not send us a letter about that?" The Minister says that he cannot. I do not see why.

Lord Trefgarne

I believe that good things come in small packages. I shall allow the noble Lord the occasional look as we go through the Bill.

Lord Wedderburn of Charlton

With great respect to the noble Lord, we are not concerned; it is the Committee that is concerned. Does he not feel that there is some lack of courtesy to the Committee to say, "I have the evidence. We will debate it, but I shall not show it to you so that you can debate it with me. I will only let it come out in small packages"? We are not concerned. We want the Committee and the world to see this great fund of evidence and then debate it. That is all we ask.

Lord Trefgarne

I described two of the cases during discussions on an earlier amendment. Other Members of the Committee were as disturbed by those cases as I was. It would not be right to reveal a whole raft of cases now. I do not intend to do that.

Lord McCarthy

With great respect, there is a real difference, and the noble Lord knows that well. There is a difference in coming to this place and mentioning names which we have not had before; unions which we have not been told about before; making statements and allegations which we have no opportunity of checking; and saying, "I will dribble some more out for you next time, lads". There is all the difference in the world between that and telling us what they are now, before we debate the issue, so as to allow us to make our own investigations.

Noble Lords

Hear, hear!

Lord Dean of Beswick

But is that not the tenor of all the proceedings on the Bill? I was present earlier when the noble Lord, Lord Campbell of Alloway, who, unfortunately, is not present, condemned an Opposition amendment out of hand. He said that if it were accepted it would be fraught with difficulty and that he could see the unions abusing it. But he did not give one single example of how it could be abused. We are almost in the game which we were in with the local government Bill of people being condemned when the case was in no way proven. As a basic trade unionist, not an ex-trade union official but as somebody who joined a trade union at the age of 15 and is still in one 50 years later, I have always believed in the openness of the books and making available the fullest information possible. I say that as a former secretary for 22 years of a very large Labour club. Everything was available to be shown within a reasonable period.

I think that some parts of this Bill are almost like the people who believe in a majority punishment, like the schoolteacher who has one or two recalcitrant pupils but rather than punish them decides to punish the whole class. Most of this argument is based on the fact that some unions may at times misbehave. I happen to belong to a trade union which, so far as I can remember, has always believed in the ballot box by post. That is where I stand, I believe in that. However it seems to me that the Government are going along without any concrete proof and continually moving the winning post.

It is not good enough. I recognise the Minister's ability and, although I disagree with him on most matters, I always think he does a good job in trying to explain his case. But in this instance he has failed lamentably. It is not good enough in Committee on a Bill as important as this that he should say, "I'll let you know, I'll think about it." The answers should be given at the Dispatch Box, if there are answers.

We have the situation where, because of the pressure over the years, over the last two or three Sessions the Government have been pushing through too much legislation and not giving adequate time for debate. I read in this morning's paper that there will be some further major amendments to the Housing Bill when it comes here. Those amendments will not be debated in another place, we shall debate them here first of all. I should find it indefensible if I were a Peer sitting on the other side, even if I believed that the Government were right, that the House should be treated in this manner. I would expect the Minister dealing with this issue to be a little more forthcoming than he has been. I think he has been uncharacteristically flippant in what he has said and I hope he will be more forthcoming in his answers to what has been said.

Lord Mottistone

I find this recent plea, which is what it sounds like, from the other side very strange. It does not seem to bear any relationship to the amendment under discussion. We are talking about Amendment No. 42 but, so far as I can gather, the noble Lord, Lord McCarthy, was inviting my noble friend to tell him all that he is ever going to say in relation to all the other amendments now—

Lord McCarthy

No, no.

Lord Mottistone

The time to tell people evidence to back up something is in relation to particular amendments. This is a very strange sort of thing. I am quite sure that noble Lords think they are doing the right thing and I do not wish to go on with this argument. What I want to do is to encourage the Committee to get on with the amendment and to take amendments in an orderly fashion. Let us get through them, finish them and, if we have nothing else to talk about, let us not introduce strange subjects which relate to the Bill as a whole.

Lord Dean of Beswick

That is not—

Lord Mottistone

For heaven's sake, let us get on with the amendment.

The Earl of Dundee

I am very grateful to all members of the Committee who have contributed to this amendment. Perhaps I may say first of all in reply to the noble Lord, Lord Rochester, who referred to analogies with companies, what I also said to the noble Lord, Lord Wedderburn, a moment ago in connection with the previous amendments that these really are misleading. I do not think that they get us very far. I think that the noble Lord, Lord Wedderburn, and I take the same view on that.

The noble Lord, Lord Rochester, also said he thought that what we are proposing in the clause—for the right of inspection to go back for six years—would be a serious burden on unions. I cannot agree with that. The noble Lord, Lord McCarthy, made the same point. But surely in a modern age with computerisation we cannot seriously feel that what we are proposing—just to extend the right of inspection for a few more years than already exists—will be a serious imposition.

Perhaps the key issue was introduced by my noble friend Lord Renton when he referred to the right of inspection itself and the principle that union members should have that right and should be able to carry it out properly for several years and not just for a short interim period. That is why I feel that if this current amendment were to be adopted it would be contradictory to the aim of the clause. The whole foundation of the clause is that a member may need access not just to his union's annual return to the certification officer, which is a right that he already has under Sections 11(4) and 11(5) of the Trade Union and Labour Relations Act 1974, but also access to the accounting records on which that return should have been based. With those remarks, I hope that the Members opposite may feel able to withdraw the amendment.

Lord McCarthy

Of course we are not surprised that we receive such answers. I only have three points to make to the three speakers who have addressed us on this matter during the debate. We would support the noble Lord, Lord Rochester, but unfortunately we cannot put those kinds of amendments into this Bill because that is not in the Long Title. There is a wonderful system here. If one tries to introduce amendments that are not in the Long Title, one is told that that is not in the Long Title. Then one asks if the Long Title can be changed, and one is told "only at the end". When one changes the Long Title, one cannot put any more amendments down. So we cannot do anything about all the very good ideas that the noble Lord, Lord Rochester, has.

We should like to say that the disclosure provisions in this Bill should be imposed upon employers for six years and upon all their establishments too. That would be wonderful, but we have to deal with what we have got.

I have to say, really as much to the noble Lord, Lord Mottistone, as to the Minister—I do not know whether the noble Lord was in his place when the altercation between the two sides arose—that the Minister mentioned a reservoir of disgraceful things which trade unions did. He said that they acted coercively in relation to their members and that he would let us have in good time one or two examples of that whenever he thought that it would liven up the debates. We are asking whether we can have them now so that we can go away and investigate them in advance and be in something like an equal position with the Minister when he pops out the next two or three. Up until now the Minister has said that he will not do that.

I do not know quite what to say to the noble Earl, Lord Dundee. It is just like the principle "Let them eat cake". When someone comes to the Committee and says that this matter is a question of computerisation, he has clearly never seen a branch secretary on a Saturday night struggling to make his books add up.

Lord Dean of Beswick

I do not think that Ministers are aware of the percentage of trade union subscriptions which are collected voluntarily at factory level. They represent quite immense sums of money. The possibility of introducing a computer there is completely nonsensical and farcical. In continuing in his reply will my noble friend advise the Minister and the Government how to deal with that situation? As an ex-shop steward I can say that that would make a complete nonsense of what the Government are proposing here as regards accuracy of information and submission. Anyone who thinks otherwise is living in cloud-cuckoo-land.

Lord McCarthy

My noble friend is absolutely right. These activities are carried out by ordinary citizens in boilersuits in their spare time. To say that all one has to do is to install computers is the Marie Antoinette answer. It is saying, "Let them eat cake". We have to withdraw this amendment but we still believe that it should be accepted.

Amendment, by leave, withdrawn.

Lord Houghton of Sowerby

Perhaps I may—

Noble Lords

The amendment has been withdrawn.

10 p.m.

Lord Wedderburn of Charlton moved Amendment No. 43:

Page 9, line 28, at end insert— ("(2A) Nothing in this section shall require a trade union to disclose any information

  1. (a) the disclosure of which would be against the interests of national security;
  2. (b) communicated to it in confidence or obtained in consequence of the confidence reposed in it by another person;
  3. (c) relating specifically to an individual, unless he consents to its being disclosed, or
  4. (d) obtained by it for the purpose of bringing, presenting or defending legal proceedings.").

The noble Lord said: Perhaps I should keep an eye on my noble friend Lord Houghton and not withdraw this amendment too quickly!

All of these amendments illustrate the absurdity of the clause. However, this amendment puts four points to the Government. Whatever else the vast range of obligatory disclosures on inspection to any member at branch or union level contains, have the Government not forgotten several things? The four instances which would provide exemption from such disclosure appear in different forms in a number of statutes. For example, they appear in Section 18 of the Employment Protection Act 1975, which gives exemption from disclosure by an employer in collective bargaining.

The first of the four instances is a disclosure of anything that would be against the interests of national security. I do not know whether the Minister has applied his mind to that. However, it is extraordinary to find that the Government have overlooked the matter. We are not yet six years away from the attempt to crush trade unionism at GCHQ. I am happy to say that trade unionism still exists in the public service both there and elsewhere.

No doubt the accounting and other books and records of such branches would include many things. Perhaps the Minister can imagine a branch at such a sensitive government centre which contains two members, Mr. Wrong and Mr. Right. The subscription stubs and other records, or no doubt the computerised data that the noble Earl would require it to keep, may record many things. If a member comes along and sees all those pieces of information and there on Mr. Wrong's record are the words: "Didn't pay last week; gone to Moscow or Australia", that is plainly a piece of information which should not be disclosed. It might be arguable that it could be kept, with permission, by the authority employing that person. I give that example but there are thousands of others.

Secondly, have the Government thought about confidence? They seem to be rather keen on "duties of confidence" in other respects and elsewhere not a million miles away from the instance which I have just given. I have used the words in the Employment Protection Act. Perhaps the Minister would prefer to use other words. Should anything which is communicated in confidence or obtained in consequence of the confidence reposed in another person be in some way protected from disclosure?

Thirdly, the Government also seem to be very keen on—they usually try to suggest that we are not keen on it but we are—the individual's interests. We believe firmly in the privacy of information about individuals, which is so much at risk in this computerised age and which is the reason we have the Data Protection Act. Perhaps, for example, the subscription records may say: "Could not pay because his wife has left him". Why should some other member be allowed to see that? Is there any reason?

Lastly, I am sure that the noble Lord, Lord Renton, whether or not he agrees with the amendment, accepts that it is a perfectly normal rule that information obtained for the purpose of bringing, preventing or defending legal proceedings in some form or other is normally under a heading of privilege, and that any ambiguity as to whether the clause allows a member to demand to see such matters should be cured by paragraph (d). It seems to us that paragraphs (a), (b), (c) and (d) are normal, natural exceptions which we are surprised the Government have left out. I beg to move.

Lord Renton

Perhaps I may deal with the four paragraphs of the amendment seriatim. I think it is very unlikely that any question of national security would arise on the accounts of trade unions, even of a trade union involved in making armaments. However, to the extent that national security might arise, I see no harm in the provision which prevented disclosure.

When it comes to confidence, I do not think that a case has been made out. The essence of accounts is that they should be open to inspection. Glasnost—however it is pronounced—or openness are essential to accounts. At first sight, paragraph (c), relating specifically to an individual, unless he consents looks as though it might be worth having. However, when one considers the matter further one finds among the conclusions of the Green Paper, set out in paragraph 3.28 on page 15, that: A further cause for concern is the introduction by at least one major union of rules to indemnify its officials for the consequences of any actions whether legal or not". I do not know how anything like that could be brought to light if there is to be a provision of the kind proposed in this amendment. In any event, if a member of a trade union considers that a pecuniary favour has been granted to another member of the trade union, is the inquiry to be frustrated because the member in whose favour the pecuniary advantage has been given refuses to give his consent? Surely, therefore, paragraph (c) cannot be right.

As regards paragraph (d), the noble Lord, Lord Wedderburn, is quite right in saying that there are certain documents which are privileged from disclosure in a legal action provided that they are prepared for the purposes of that action. On the other hand, any documents which arose before action and were not prepared for that purpose have to be disclosed to the other side under the normal rules of procedure. Paragraph (d) does not make it clear which of the two classes of privileged document or documents liable to disclosure are being referred to.

On balance, in spite of what the noble Lord said with great sincerity, I do not think that there is very much in this amendment which should compel the Government to accept it.

The Earl of Dundee

I am grateful to noble Lords for their contributions and to the noble Lord, Lord Wedderburn, for his explanation of what he has in mind. Equally, I am grateful to my noble friend Lord Renton who answered the noble Lord's points far better than I could and put them in context very well.

I should like to begin by telling the noble Lord, Lord Wedderburn, what the clause is about and what it is not about. The clause is not about the disclosure to union members of any specific type of information held by the union other than information which forms part of the union's accounting records which Section 10 of the 1974 Act requires every union to keep.

Those accounting records to which the clause applies are required to be records, necessary to give a true and fair view of the state of affairs of the trade union … and to explain its transactions". Nothing in any such records should be denied to the union member. At this point I should like to endorse the remarks of my noble friend Lord Renton who made a connection between glasnost (however one pronounces it) and the right to inspect accounts in an open and straighforward manner.

As regards the content of accounting records, unions have been keeping accounting records as required by Section 10 of the 1974 Act for over 10 years. They are of course needed so that the union's transactions, assets and liabilities can be properly audited.

The Institute of Chartered Accountants has issued guidance on auditing standards, part of which covers the special factors to be considered in the application of those standards to trade union audits. That guidance recognises that there may be considerable diversity as regards the nature of and information to be found in trade union accounting records needed for the purposes of audit.

I am perfectly ready to accept that different unions' proper accounting records as kept for the purposes of Section 10 of the 1974 Act may contain different sorts of information. Some records may contain some information that would come within one or more of the categories set out in the amendment of the noble Lord, Lord Wedderburn. But if that information has to be included in a union's accounting records, as necessary to give a true and fair view of the state of affairs of the trade union … and to explain its transactions", the member must have a right of access to it nonetheless.

Regarding the other aspect which I think lies behind the noble Lord's amendment—namely that of the possible unlawful use of information obtained by a union member, whatever information a union member obtains from his union's accounting records—he will not be able to make illegal or unlawful use of It without risking the penalties that may follow from such action. The law recognises that a person who has received information in confidence is not allowed to take unfair advantage of it and that an injured party is entitled to seek relief for breach of confidence.

In summary, the concern underlying this amendment is misplaced. The new subsection proposed is neither necessary to achieve nor compatible with the intended effects of the clause.

Lord Dean of Beswick

Once again I ask why the Government insist on double standards. Is it not a fact that in claims for certain benefits across the whole spectrum, the previous 12 months are always indicated as the norm for what will be claimed and what will be paid, on the basis that it is impossible to keep up-to-date records for such a large volume of people—which bearing in mind the number of trade unionists involved is possibly still in the region of 9 million?

Why do the Government expect the trade union movement, which has nothing like the same resources at its disposal for keeping records up to date, to have its books examined at such short notice? Why do they expect the trade union movement to carry out an exercise and produce a result that they themselves are totally incapable of producing in spite of all their resources, a result that in no way and in no respect is finite or definite about what the trade union movement has under its control?

The excuse that has always been given by the Government takes this form: "We cannot pay this; we cannot pay that. We cannot pay at a certain time. We cannot pay it because it is so difficult to collate everything. There is no way that we can do it". I remember that excuse being given before the DHSS was computerised. It is now supposed to be totally computerised, but the same comments are still put forward. When a realistic argument is put forward to the effect that the Government can now do things much more quickly, they always come back with the same excuse: "We are sorry but physically we still cannot do it". Why are Her Majesty's Government asking the trade union movement to do something which they themselves cannot do?

10.15 p.m.

Lord Renton

It may comfort the noble Lord to reflect that nearly all our legislation is passed not in order to govern the actions of the best but to ensure that those people or bodies who fall below the standards of the best reach the standards of the best. That is one of the main purposes of this Bill.

Lord Dean of Beswick

The noble Lord has encapsulated the matter in a nutshell. The arguments put by the other side are that it is to catch the few who are not behaving. The same arguments were put during discussion on the Local Government Bill: "Some are behaving naughtily; we shall punish them all". The situation is like that of the schoolteacher who has one or two naughty pupils but who decides to punish the class in order to catch the guilty ones.

What the noble Lord, Lord Renton, has just said was similar to what the noble Lord, Lord Campbell of Alloway, said earlier. It is like saying, "We are protecting you from your own iniquities. In other words, we shall hang you tonight because you may be shot tomorrow morning". The arguments from the other side are not good enough on this occasion.

Lord Wedderburn of Charlton

Perhaps I may address one or two remarks to the Minister and to the noble Lord, Lord Renton. The noble Lord, Lord Renton, referred to the fact that the legislation that one passes is normally measured to the gravity of the problem and the danger. Until we are able to swim freely in the reservoir of the Minister's experience, we do not know what that problem is.

With great respect to the noble Earl, the Green Paper does not disclose even a mere trickle of a problem on abuse. Trade unions have been keeping accounting records since long before 1974. The Act of 1871 required every trade union to keep accounting records if it was registered, and under that dispensation most were. I believe that I am right to say—but we can check it—that Citrine on trade union law reveals that in 100 years of the existence of that Act only three—or it may be two—serious complaints were ever made. Two cases went to the High Court. Both were discussed in the recent case of Hughes in 1985. A very small amount of alleged abuse took place even then. The Green Paper does not give us a stream of facts on abuse in accounting records now.

Turning to the points made on the amendment, I accept what the noble Earl said about a true and fair view. I believe that I quote the noble Lord, Lord Renton, correctly when he spoke about ensuring that the bad do not fall below the standards of the best. When I apply that argument to the Government's record in legislation, and the Financial Services Act that they will not bring into force, I begin to wonder whether they have double standards in this respect. However, if one makes that point, one also needs to state why the extent of the inspection is needed.

My noble friends Lord Dean and Lord McCarthy have tried to ask the Government whether they realise the enormous harassment of trade union sections and branch administration that this will cause. The fact that the Government do not answer that question is capable of the interpretation that they know it and do not care; or even that it is intended. Therefore perhaps by Report stage they will have an answer to that point that means something.

The noble Earl said that on the issue of information disclosed, members cannot make unlawful use of such information without penalty. With respect to him that is a tautology. I am not concerned with unlawful use without penalty. I am concerned with use that does damage in other ways. I agree that some parts of the amendment are concerned with matters that could be unlawful.

I accept what the noble Lord, Lord Renton, said about the drafting of this clause in one particular. I do not accept his comment on paragraph (a) because Civil Service unions will undoubtedly have information in and about their accounting records as defined by the 1974 Act that will be concerned with national security—there is no doubt whatsoever about that—and even their membership in some cases. I have had conversation with those who are good trade unionists and good civil servants at GCHQ and they would not tell me whether they or anybody else was in the union to begin with, and they would not have done so before the unfortunate events of 1984. They would not tell me anything about their work which would be related to which union they were in.

Secondly, I think the noble Lord would have to accept that some kinds of confidential information might appear in the records, especially—here is the point on which I freely accept that the amendment must be looked at again—those that do not relate to trade union affairs. I do not agree with the noble Lord, Lord Renton, about paragraph (d). Subject to a few words I believe that: information … obtained … for the purpose of bringing, presenting or defending legal proceedings", is a fairly good short way of producing the usual kind of formula or privilege; but on paragaphs (b) and (c) I agree with him. If we had this kind of debate more often instead of being told that we were raising issues to which the Government will say "No, no, no", we would advance a little further as a revising Chamber. I do not think that the Committee has acted as a revising Chamber for one minute tonight because the Government will not revise anything. If they will not revise anything in this Chamber there is nothing we can do.

The noble Lord, Lord Boyd-Carpenter, seems very pleased with that. Of course he is, but perhaps when he is on this side of the Chamber he will not be so pleased.

Lord Boyd-Carpenter

As the noble Lord has ventured to refer to me, I should perhaps say that so far from being pleased I was merely being amused.

Lord Renton

Before the noble Lord—

Lord Wedderburn of Charlton

I shall reply first before giving way again, which I shall willingly do. I referred to the noble Lord because he made an interjection from a sedentary position. If he was amused, I am pleased. At least that is some profit to the evening.

I put now a serious matter to the noble Lord, Lord Renton. I should like his assistance on the amendment because I believe he will agree with us. There are matters in trade union accounting records, as defined by the 1974 Act, which do not relate primarily to trade union affairs. I gave an example of family affairs. Matters can easily be found in branch papers concerning what is happening in Brother So-and-So's family. Such information should be protected.

I accept what the noble Lord said, that these words go wider. The point about the individual could, as it were, knock the rest of the clause for six if it were taken in its literal sense. I hope that the noble Lord will join us in finding a narrower formula where the protection of privacy concerns matters not related to trade union membership and the relationship of union and member. I hope that this is a matter that the Government will consider a little more because from their Front Bench no argument has been advanced against this proposal other than they do not accept it. I thank the noble Lord, Lord Renton, for pointing out these other matters and ask leave to withdraw the amendment.

Lord Renton

Before the noble Lord withdraws his amendment, may I point out that he was quite wrong about our not being a revising Chamber here today. Goodness me, he and I were overwhelmed by the number of government amendments intended to improve Clause 1.

Lord Wedderburn of Charlton

I think we should leave it at that.

Amendment, by leave, withdrawn.

[Amendment No. 44 not moved.]

Baroness Turner of Camden moved Amendment No. 45:

Page 9, line 50, at end insert— ("(5B) Where a trade union receives a request from a member under this section it may apply to the Court for an order that the member shall protect the confidentiality of all or part of the records inspected, and on such application the Court may take such order as it thinks appropriate.").

The noble Baroness said: As has been indicated by my noble friend Lord Wedderburn, this is a very important and in many ways a very unfair clause. As we have seen, Clause 6 provides a right for a union member to have access to the accounting records of the union as a whole and every branch and section of the union at places where the records are normally kept. The member may be accompanied by an accountant. The accountant may be required to agree to confidentiality as a professional individial. The member however is under no such constraint. Moreover, as was evident from the previous debate, the term "accounting records" clearly goes much further than the annual audited accounts which are normally published and available. If they did not do so there would be no necessity to include this provision in the new legislation.

Every institution has material which it rightly regards as confidential. Among those are detailed staffing records. Every employer, particularly a good employer, will from time to time give assistance to employees, perhaps with ex gratia payments to alleviate distress following bereavement or other domestic crises. In my union we frequently did that for our own employees, clerical as well as officials. In addition there are records of pension payments, union mortgages, personal records and so forth.

If the clause is not amended it will give dissident members, perhaps acting on behalf of an outside agency hostile to the union, access to employees' records. If so, trade union employees could be subject to gross invasions of privacy in a way that other employees are not. Furthermore, branch accounting records, and in some unions the national records, will include details of which members are in compliance with their contributions to the union and which are not. That matter has already been touched upon by my noble friend Lord Wedderburn. In some disputes, particularly those concerning recognition, that would be of great value to an employer. Sometimes individuals belong to a union but they do not wish their employer or anyone else to know. Why should that information be made available to another member? It is information that the union holds in confidence.

Another aspect is the legal service provided by the union. In my union it is customary to keep records of sums of money won for individuals following accidents at work or in other legal cases. Often the individual who has benefited does not wish other people to know how much has been awarded. Why should all or part of such records be available for inspection if there is to be no duty of confidentiality imposed on the member who inspects?

The purpose of the amendment is to enable the union to apply to a court in order to protect the confidentiality of such material. I believe that to be eminently reasonable and I commend the amendment to your Lordships' Committee.

The Earl of Dundee

I appreciate the points raised by the noble Baroness as regards confidentiality. However, I believe that the amendment would impose undue restriction on union members. For instance, a member may need to disclose the details of what he has found in a legal action against the union to which it was relevant. In such a case the union's perception of the confidentiality of the accounting records would not and should not prevent him from doing so. Again, in the absence of a court action, he may wish to bring to the attention of his fellow members or even the public what he had discovered as part of some complaint against his union involving the assertion that union rules or statutory requirements had been breached. I do not believe that there is a good reason for seeking to prevent him from so doing.

I should like to say a few words about the nature of accounting records in that context. Section 10 of the 1974 Act does not provide a list of the documents or non-documentary records that would fall within the definition of "accounting records". It specifies that the records kept must be: such records as are necessary to give a true and fair view of the state of the affairs of the trade union … and to explain its transactions". It may be helpful to the noble Baroness if I also comment on what is likely to happen in the case of a dispute where it would be ultimately for the courts to decide what did or did not constitute such accounting records. In the absence of a court judgment a union in doubt about the matter may well ask its auditors for their view or seek a legal opinion. Bearing those considerations in mind, I would expect such records to consist of the records of completed financial transactions. Such completed financial transactions may be unlikely to contain information that would come within the definition of confidentiality which the amendments propose to apply.

The clause makes it quite clear that a member has the right of access to inspect accounting records only if those records relate to a period when he was a member of the union. There are various other limitations to ensure that that right is not abused. The protections for unions in connection with the clause are, I believe, already quite sufficient, and there can be no question of adding to them in the way proposed.

10.30 p.m.

Baroness Turner of Camden

I find that a very unsatisfactory reply. If one looks at the amendment, it says that the union may apply to the court for an order and the court may make such order as it thinks appropriate. In other words, if the union is approached by a member and the information that is being requested is confidential, then the union can apply to the court and the court decides to make an order if it thinks it appropriate. That seems to me eminently reasonable. And, quite frankly, when we come to talk about proper accounting records, I gather that the present legislation compels the unions to keep proper accounting records with respect to their transactions, assets and liabilities.

The wording in the Bill is much wider. It would give a dissenting member every opportunity for thinking that the sort of information to which I have referred, which is eminently confidential and would be regarded by most employers as confidential if it related to employees—perhaps loans or grants to employees who are under stress or something of that nature—was available to him. In my view, that is not satisfactory. I do not see why the amendment which I believe is very reasonable could not be accepted—

The Earl of Dundee

If the noble Baroness will give way, I listened carefully to what she said. I had not appreciated one aspect of what she had in mind—that it would be for the union to apply to the court and that the amendment would not be triggered unless the court took the initiative to trigger it. I am prepared to take this away and have a look at it. I believe that it is a constructive approach. I will take it away and look at it without commitment.

Baroness Turner of Camden

On the basis of that assurance, I am willing to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 46 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 47: Page 10, line 36, leave out ("or of any branch or section of that union").

The noble Lord said: We come to perhaps the most serious or one of the more serious issues in the clause. It has been made clear by the Government in another place and here tonight that the clause will require the union to permit a member of any one branch of the union to demand the accounting records of the union, of the branch or of a section. That is sometimes called the Land's End/John o'Groats principle; namely, that any member of any branch can go anywhere and demand the six years' records if he has been a member for six years.

My noble friend Lady Turner was right to point out to the Government—because this happened in another place—that the relevant definition in Section 10 of the 1974 Act is not so much that the records necessary to give a true and fair view must be kept. Section 10(2)(a) states that the union must keep proper accounting records with respect to its transactions, liabilities and assets.

That leads to the second point to which these amendments are addressed. I speak also to Amendments Nos. 48 and 52. The three amendments would achieve two things. They would cut out the branch records where they apply to branch property. Whenever I say "branch", I include section. However, the amendments would make even clearer the tie between this clause and Section 10 of the 1974 Act; namely, that the union must keep—since the Government have rejected all other amendments—records relating to its transactions, assets and liabilities as Section 10 states, wherever those records are held. That leads to a distinction which, in my reading of the Committee stage of another place, I was not sure that the Government understood, to put it bluntly.

Union property—that is, the property held by the union's trustees or by other trustees who hold for the union—may be held at a variety of places. My noble friends have spoken about the work that is done at so many levels by lay members and, voluntarily, by officials who frequently are trustees either in name or perhaps as branch treasurer and who holds certain funds.

Most of the union property will of course be held by the union trustees or by trustees of some unions at a regional level. But the union property is totally different from branch property; or to put it another way, it frequently happens that branch trustees hold both branch property and union property. For example, if one takes a union, as in one of the printing unions, where the subscriptions as they come in are automatically divided between what belongs to the union and what belongs to the branch (quite apart from the chapel) one immediately gets either one set of trustees holding two sorts of property or, sometimes, two different trustees, or a treasurer and the branch trustees. In other words, branch property is not union property.

I do not have to argue that because recently the courts have held it in two or three decisions, which I should be happy to discuss, in connection with sequestration. It arose in one of the NGA cases and it arose in a SOGAT case. The union was in contempt of court. The court ordered sequestration and the sequestrators went in and seized the lot. In both cases a sizeable branch—in one case based at Manchester, with a very long history and more than its own independence in some ways within the organisation and certainly its own property—applied to the courts successfully to have that property released because it was not union property.

The first point to note about the clause is that there is no distinction between union and branch property. What has been said by the Government in another place, and I think here tonight, makes it quite clear that the Government intend to get at records relating to branch property as well as union property. If that is so I ask: why? There can be no reason for other than branch members getting at branch records. Of course the members have a right; they are the beneficiaries of the trust, if one wishes to put it in a legal form, but in trade union terms it is not necessary to put it like that.

It is obvious to a member of a branch that other members of the branch have a right to inspect the books of the treasurer or whichever officers under the rules hold the property. However, members of another branch inspecting on branch property is another matter. That needs special justification and the first amendment strikes that out by getting rid of those words, "branch or section".

The second set of amendments comes to the aid of the Government in the sense that they make doubly clear what may be clear in the clause at the moment, because the Government are probably in a muddle on this. If you apply Section 10 of the 1974 Act, as they did by amendment in another place, it looks as though you are covering only union property, because that is what Section 10 is about. Section 10, if one reads it, is about the union's records relating to its transactions, its liabilities, and so on.

Section 10(4) makes it even clearer, because it says that if the property is held at branch level for the union then any records kept by the branch of union property will be adequate. Were it not for the hour of the night I could give some practical examples of how this works, but I believe the case is made. The first of these amendments —namely, Amendment No. 47—gets rid of "branch or section", because it is there that the clause looks as though, albeit somewhat ambiguously because of its incorporation of Section 10, it is getting at branch property and branch records of branch property for members other than the members of that branch.

The second two amendments—namely, Amendments Nos. 48 and 51, which go together —reaffirm that if the clause is to operate at all —and we still believe that it is horrendously wide and oppressive—it should operate in relation to union property. I repeat that that can be union property usually held centrally or at district or region but it can be property held for the union as a whole. For example, it may be subscriptions held by branch trustees. I believe that to be a clear although a somewhat technical case.

If the Government genuinely believe what they put forward in another place, that they want to tie in this clause with Section 10 of the 1974 Act, then it is a case which they must accept on its own logic. The logic which I have put forward this evening only spells out the case that the Government made in an amendment in another place in bringing in Section 10 of the 1974 Act to govern Clause 6 of the Bill. I beg to move.

Lord Renton

The noble Lord knows more about the organisation and the structure of trade unions than I. I have no reason to challenge the factual description that he has given the Committee of the holding of property by unions and by branches. It is implicit in what he said that both unions and branches have separate accounts.

From the point of view of the ordinary member who of necessity normally belongs to a branch rather than to the headquarters of the union, if he wants to find out what is happening to the branch to which he subscribes, surely we must provide that he is enabled to do so. The union is mainly the sum of its branches as regards the monetary funds of the union.

I believe the noble Lord is right in saying—but I am open to correction—that the first reference in Clause 6 to branches is in subsection (9)(a), which he seeks to amend. I do not believe the fact that there is no earlier reference should be held to nullify the effect of what has gone before. I understand that is what he suggests. I do not have with me my copy of the 1974 Act. Perhaps the noble Lord can confirm by reference to Section 10 of that Act whether there is anything in it which requires branches to keep accounts.

Lord Wedderburn of Charlton

There is nothing.

Lord Renton

In that case I believe it is a relevant factor for the Committee to bear in mind. It may be that in the light of what the noble Lord has said and the fact that Section 10 does not refer to branch property, paragraph (a) may on reflection by the Government need amplification. I hope that if the Government consider that to be so they will not depart from the proposition that branch accounts should be open to inspection by branch members.

10.45 p.m.

Lord Wedderburn of Charlton

I did not wish to mislead the noble Lord. He asked whether there was anything in Section 10 of the 1974 Act which referred to a duty on a branch to keep accounting records. The answer is, I think, no, but a few words should be added. Subsection (4) make two provisions. First, a branch, when it holds union property, may satisfy the union's obligation by keeping the records there. Secondly, as the noble Lord will know, a branch may be a separate trade union in itself. It is a difficult point because sometimes they are separate trade unions in law, although part of the national trade union. If that is so, then the duty falling upon them in that connection is to keep their own. So there are two riders to the "no", but I do not think they affect the substance of the answer to the noble Lord's question.

Lord Renton

I am much obliged to the noble Lord.

The Earl of Dundee

I was interested in the sense in which the noble Lord, Lord Wedderburn, pointed out to us that the ownership of union property can be construed differently from the ownership of branch property. He made the point that union and branch accounts could, and somtimes are, kept separately.

I think that the noble Lord, Lord Renton, put his finger on the point when he said that the purpose of our proposal is to enable the ordinary member to find out what is going on. The ordinary member cannot find out what is going on if he is simply confined to inspection at his own branch. It might be helpful if I were to expand on the kind of way in which the ordinary member can in practice find out what is going on.

A union member who has an interest in ensuring that the funds of the union are being correctly applied will clearly need access to the accounts of the union wherever they are held. His interest will extend beyond the funds which are centrally applied. There may also be particular circumstances which a member may wish to investigate—for example, where he believes his branch or section is being treated less favourably than others for improper reasons, or where he believes there to be a problem affecting a number of different branches or sections. To pursue such matters he needs to have access to the union's accounting records as they relate to such branches or sections. The noble Lord, Lord Wedderburn, may feel that the interesting distinctions which he was drawing to our attention are transcended by the practical needs in the context of this clause.

Lord Wedderburn of Charlton

I am not sure where we are, except that I appreciate the Government are not going to accept our amendment. However, one gets used to that.

The amendments in a sense represented an attempt to clear up a point and an attempt to tease out just what is the intention of the Government. To take the second point first, it was not entirely clear in another place whether they really meant to cover the accounting records of all the hundreds of thousands of branches up and down the country for six years back. I remind your Lordships again of the definition. The accounting records must be kept with respect to transactions, assets and liabilities.

"Transactions" is very wide. If it means that all branch property is included in that, which is apparently what the noble Earl is saying, then we suggest that there is no justification. Most rule books of course provide for the revelation of branch records to branch members, but in the amendment to which we are about to come, where perhaps the point will be even more germane, that is not the Government case. Their case is the Lands End to John o'Groat's case; everyone from Lands End can inspect the John o'Groat's branch and vice versa, and the same will apply everywhere up and down the country. The question is; why? They say that members might want to bring an action againt the union. That is usually the idea in mind, and I see that, but it does not seem to us to be a very good reason. That is the first point. The branch case has not been made out for branch property.

Where the branch is holding union property—and more usually union property will be held at the level of union headquarters—there the Government have put something in subection (9)(a) which seems to restrict the paragraph to union property. I am sure that the noble Lord, Lord Renton, and I did not disagree on this point. It is the definition of the subsection that is in issue. Therefore we have references, if I may take the relevent words: to accounting records of that union, or of any branch or section — as are, or purport to be, records which are required to be kept by the union under Section 10 of the 1974 Act". However, a branch does not have to keep such records as its own property under the 1974 Act. I thought that the Government would say tonight, on having successfully included that amendment, that they were not going to press for branch property. However, they now say that as they have got the amendment in they will proceed to do likewise in respect of branch property. The next thing to happen will be that on Report they will be seeking to take that amendment out—an amendment which they introduced in another place. I hope that they do not do so because there is a fighting chance, as the words stand, that at least the inspection of branch property will not be unlimited.

I thought it would be better if we cleared the matter up; got rid of the branch as the repository of the obligation; dealt with the union as the Government wanted in incorporating Section 10, and then, although we would not like it—we think the clause is a bad one—we would at least know where we stand.

Lord Renton

Even if the Government have not got the matter right and fulfilled their own intention of enabling branch accounts to be inspected, would the noble Lord not agree that branch members are more likely to be interested in the inspection of their branch accounts, rather than union accounts? Therefore their right to do so should be made abundantly clear.

Lord Wedderburn of Charlton

The common ground between the noble Lord and those of us on this side of the Committee is even greater. Branch members should have access to their own branch records, albeit I should prefer a framework which the law used to have within which the rules had to come and not this rigid notion. Nevertheless, each union has different rules. They provide broadly that members of the branch have a right to know what is going on. As a rule, if a branch secretary tried to conceal what was going on within that branch he would get short shrift. They may also be genuinely interested in the accounting records of the union, although, like my noble friend Lord McCarthy, I would restrict that to the date of the last published accounts. Once the union has published its accounts for the year, that is fair.

The Green Paper made a much better case on this than the Government Front Bench have done tonight. It said that something nasty may have happened since the last filed accounts, so you ought to look at the last accounting records. I did not agree with the way it was put, but the noble Lord, Lord Renton, and I could easily have found agreement on that proposition. But that is not what we are presented with now. We are presented with a gigantic explosion of inspections by people.

Let us face the fact the trade union movement has known since the days of Osborne, and others like him, while it has had the economic lead, that every branch secretary or general secretary up and down the union knows that there are people trying to find out things to which they would not normally have access. My noble friend Lady Turner of Camden has referred to many such people this evening. Their purposes in so doing are, let us say, not friendly to the union. Of course the same is true of all organisations. They know people who, if they got to know certain things, would not use them in a kindly way.

Lord Dean of Beswick

Will my noble friend give way briefly? As a member of the second largest trade union in the country, the AEU, is he not aware that every branch of that union annually elects its auditors and trustees to examine the books on behalf of its members? Is he further aware that very few, if any, branches of the AEU are property owners? Of course the national union is, by virtue of its district offices.

Does my noble friend not agree that the general picture, in most cases, is that the overwhelming number of trade unions do not have masses of property situated all over the place? Are we not, once again, using a sledgehammer to crack a walnut?

Lord Wedderburn of Charlton

I am grateful to my noble friend. There will be branches of some unions that have offices and so on; but for the most part it is branch funds that matter. That is the main point.

I put two points for the Government to consider on Report. I am sorry if the noble Lord, Lord Renton, feels that I have been helpful to the Government in trying to get the clause right. We are not concerned merely to oppose in the sense of saying that it is a bad clause; we are concerned with the clauses for a special reason. We believe that the Government do not show any consideration, or much knowledge of what goes in the administration of a real trade union. Many of the clauses will make the life of those who contribute, often in their own time, difficult. When there are no explanations for the clauses, we become somewhat suspicious—we are not usually suspicious people—of the intentions behind what will obviously be capable of harassment.

There are those, as I said, such as the Economic League, which make a practice of giving information about union members to employers and so forth. We know that there are those people who will be put up to demand inspection of a vast amount of information. It should be limited to reasonable proportions.

I repeat that branch funds and property and therefore branch accounting records should not be within the clause. They are dealt with perfectly well in branch rules for the members of the branch. Secondly, if it is the case, as the Government argued when they introduced the amendment into subsection (9)(a) in another place—they made a big case of it—that they want the clause to be coterminous in its impact with Clause 10, let them look again at subsection (9)(a) to see whether there is perhaps virtue in the second and third amendments to which I am speaking. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 48 not moved.]

Baroness Faithfull moved Amendment No. 49: Page 10, line 39, at end insert ("except that accounting records of a limited company through which a trade union carries on any commercial activity shall not, for the purposes of this Act and the 1974 Act, be treated as accounting records of that trade union;")

The noble Baroness said: I shall be brief. As already stated on innumerable occasions, Clause 6 makes provisions for trade unions to keep accountancy records and to make those records available for inspection by individual members of the trade union. But some trade unions have certain of their activities carried out through a limited company. For instance, the Royal College of Nursing, which is a trade union, carries out some activities through Scutari Projects, a publishing company which publishes a professional paper for the Royal College of Nursing. A rival firm, Macmillan Press, publishes the Nursing Times and would have access to the commercial company acting for the Royal College of Nursing.

The amendment provides that the records of the limited company, Scutari, would not fall within Clause 6. The Companies Act may cover the contingency, but that is not certain. From the debate in the other place, I understand that the Secretary of State took the view that a limited company's accountancy records probably did not fall within Clause 6, but he was not certain. The amendment would put the matter beyond all doubt. I beg to move.

Lord McCarthy

I support the amendment. As the noble Baroness said, this is the Royal College of Nursing's amendment. As a special body, the RCN has got out of nine-tenths of the Bill, and it wants to get out of this bit. Since we believe that there is no justification for the clause, we must support the RCN in its desire to get out of the Bill altogether.

The Earl of Dundee

Clause 6 creates, as we know, a member's right in respect of access to his union's accounting records. It does not provide for access to the accounting records of any other body. Limited companies through which trade unions carry on commercial activities, assuming they are companies in their own right, cannot be trade unions. So it is already the case that the provisions of the 1974 Act and those of Clause 6 have no impact on their affairs. Simply for that reason I would ask my noble friend if she would see fit to withdraw the amendment.

11 p.m.

Baroness Seear

Why are the Government so resistant to the belt and braces approach occasionally? If there really is any doubt in people's minds, what harm does it do to put something into this Act, so that people do not have to go to a number of different Acts to find out what their position is? It cannot do any harm and it could well do some good. Can the Government really not accept this?

The Earl of Dundee

I take the noble Baroness's point that even if this is irrelevant, perhaps there is sometimes a case for irrelevance if it gives people peace of mind. I should perhaps say to the noble Baroness that I would at this stage be perfectly happy to take the matter away and, without commitment, see if I can come back with something which might be to her satisfaction.

Baroness Faithfull

I rise quickly to my feet to say that under those circumstances I shall reconsider the matter, discuss it and take legal advice. I am very grateful to my noble friend and to the noble Baroness, Lady Seear, as well as the noble Lord, Lord McCarthy. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCarthy moved Amendment No. 50: Page 11, line 1, leave out from ("construed") to end of line 6 and insert ("as creating a duty to comply with a request in relation to the accounting records of a branch or section of a trade union where the request is made by a person who was not a member of that branch or section either at the time of his request or at a time during the period to which the records relate.").

The noble Lord said: I think it is necessary to point out precisely where this comes in the Bill. We are dealing with subsection (10), which states: Nothing in this section shall be construed as preventing a duty to comply with a request made in relation to the accounting records of a branch or section of a trade union from arising where the request is made by a person who, although he was a member of the union at the time of his request and at a time during the period to which the records relate, was not a member of that branch".

We want to rewrite that subsection so that it reads: Nothing in this section shall be construed as creating a duty to comply with a request in relation to the accounting records of a branch or section of a trade union where the request is made by a person who was not a member of that branch or section either at the time of his request or at a time during the period to which the records relate. In other words, as the noble Lord, Lord Wedderburn, has said, this is the amendment to do away with the Lands End to John o'Groat's aspect of the clause. It is talking merely about branch property or branch information, branch accounts. We do not see why unions which very often have very different kinds of accounting methods at branch level, and which would not normally be expected to keep their records at branch level for six years, should be expected to do all this and necessarily to keep them in a standard form, the precise description of which we do not yet know, because that will emerge over time.

Any member from any part of the union can ask for the branch records or section records from a branch or section which he has never visited, which he knows nothing about, which does not negotiate his terms and conditions and which may consist in a large union of workers of a quite different category and type of work from the work he does. We do not see why the Government want it. This is in a literal sense a probing amendment: we are probing, we want to know why the Government are so keen to put in this bizarre provision.

The noble Lord, Lord Wedderburn, said that the only justification in the Green Paper for anything in this clause is that part which says that maybe there is a justification for going back to the time when the last accounting records were made. That relates to the accounting records for the entire union. But here we are saying that we should go back six years in every single branch of the union and that access should be available to any individual member of the union who was a member at that time. We are saying that we are very suspicious about this.

I repeat that this is a probing amendment. We are not even certain that we believe—at least I am not certain that I believe—the Government when they say as they have to some extent said today that they are afraid of the misapplication of funds. The misapplication of funds concerns people if it occurs in their own branch or it concerns them if they believe that misapplication is on such a scale that it is a national problem. But why someone living in Lands End should be bothered about the misapplication of funds in John o'Groat's is something that I find extremely difficult to guess.

It seems to me that somewhere we are coming close to an atmosphere which I have felt overhanging this Bill from the beginning. That has come through quite often in the comments that the Ministers have made on this and previous clauses today. The suggestion is that something must be under the bed and that, if only the Government could place enough demands on unions somewhere, some more scandals would arise. The secret cornucopia which the Minister has and which he will empty out for us in dribs and drabs might get filled up. We are very suspicious and we do not see why this provision should be supported. I beg to move.

The Earl of Dundee

I am sorry that the noble Lord, Lord McCarthy, is suspicious and I hope that I may be able to reassure him that he really has nothing to be suspicious of. The noble Lord refers to the John o'Groat's to Lands End problem as he calls it, but perhaps I may briefly remind the noble Lord and the Committee what would be the position if we were to accept this particular amendment.

If we did accept it I really think that we should see that it would run quite counter to the effect, and intention, of subsection (10). This subsection is essentially clarifying that nothing in the clause shall be construed as preventing a union from complying with a request made by a member of one branch or section to inspect the accounting records of another branch or section.

The amendment would reverse the effect of the subsection; a member's right to inspect branch or section accounting records would be confined to those which existed in the branch or section of which he was a member. That would be unacceptable. A member who has an interest in the way his union's funds are applied quite properly has an interest in the accounting records of the union wherever they are held.

Perhaps I may repeat what I said a moment ago regarding the fairly obvious practical example that would obtain where a member may believe that his branch or section is for improper reasons being treated less favourably than others or that there is a problem affecting a number of different branches or sections.

The noble Lord, Lord McCarthy, perhaps rather assumed that the only geographical distance that we have to consider is that between the far north of Scotland and the far south of England. But of course there are a numerous and infinite number of branches all over the country and I do not think that I can accept the nature of the difficulty which the noble Lord gives us to understand is reflected by his John o'Groat's to Lands End imagery.

I do not think that there is anything sinister or underhand about this clause or the Government's attitude to it. The matter is open and indeed my noble friend Lord Renton a moment ago put this very accurately when he compared the openness that we have in this clause with glasnost, which he attempted to pronounce. I shall not try to say too much on that in case I mispronounce it.

Baroness Seear

I do not understand why the Government are treating the trade union movement as if it were totally different from any other kind of organisation in the country. I do not know what happens in the Conservative Party but I can imagine the hullabaloo that would be let loose if constituency members in my own party went round looking into the accounts of constituencies in other parts of the country. I cannot think that the situation is very different in the Conservative Party. Does the Conservative Party allow its Kensington branch to go and poke its fingers into what is happening up in John o'Groat's? We have John o'Groat's on the brain—let us say Edinburgh. Why should unions be treated in such a totally different way to other institutions?

I noticed that the noble Lord, Lord Renton, said that a union was only the sum total of its branches. There is no such thing. Branches are proudly independent and the union as a totality is something quite different from the individual branches. It is not the sum total of its branches any more than the Conservative Party is the sum total of its branches in the constituencies. Why are unions picked out for treatment so totally different from what would be expected for any other organisation?

Lord Houghton of Sowerby

That is the thinking of 1871 extended by the ingenuity of the Conservative Party in recent months. It knows, or ought to know, the problems of getting to know about branch funds in the unions generally. I shall give an example of that difficulty.

When I was chairman of the committee on the financing of political parties, of which my noble friend Lord McCarthy was a member, we sought information about the finances of the branches of the Conservative Party. We said that we should like to know more about the funds of constituency parties: where they get the money, what they do with it and how much they send to headquarters and generally to know more about their financial activities.

We asked whether the party would co-operate if we sent a list of our own selection of constituency parties to which we should like to send a questionnaire. It said: "You may send us your list of our constituency branches that you would like to investigate and we shall forward the questionnaire to them. We shall not allow you to send a questionnaire directly to our branches. We shall veto your list and send on the questionnaires that we think are suitable. Also, when the replies are given they are to come to us first and not to go direct to your committee".

That was how the committee dealt with the Conservative Party as regards disclosure of information about its branches. The committee had to give up the idea of getting any disclosure about the central funds of the Conservative Party. It would not open its books to us. It would not tell us anything about donations. It would tell us about contributions from branches, but donations were a closed book.

Yet representatives of the Conservative Party have the effrontery to sit there and tell trade unions what they should disclose about their finances and their branches. In this subsection they have the sheer impudence to say that a member of a union who has not been a member of a particular branch either at the time he makes the request to see the branch accounts or at a time covered by his request—that means to say that he was not a member of the branch and nor was he interested in the funds of that branch—still has the right to disclosure of the accounts of that branch. I cannot imagine anything more stupid.

To what extent is the party opposite going to drag the corpse of the unknown trade union member from the foundations of the trade union movement in the last century and make him king? Apparently that anonymous member, whose inquisitiveness is beyond all reason, can claim to be satisfied and can have the enforcement of the law behind his request. That seems to me to be mad. It is carrying the matter to absurdity.

I think that my noble friends come down from the cloisters of their universities to help us out on these occasions because they want to discover what a brick wall feels like, because that is what they encounter every time they come. Some of us are more used to it than they are. They can at least make some impression in their academic lives. We can make little or none in our parliamentary lives. At this wearisome hour of a quarter past eleven vitality is low and numbers are small. The television cameramen were so bored that they packed up hours ago. Nothing that we were proposing to discuss from about seven o'clock this evening was of the slightest interest to the great British public. So they put the red covers over the cameras and pushed off. I regard that as an insult to the Chamber. Perhaps the overtime they get is too much. I do not know.

If this were a branch meeting of any respectable section of the trade union movement we should say that this was a pretty poor attendance, that the proceedings were dull, that there was no drama anywhere, that nobody was doing anything and that no resolutions were passed—in fact, they were all withdrawn. We should say this was no sort of branch meeting to attend; yet here we are going through this farce.

In my 90th year and after 40 years in the trade union movement, I sit here discussing the future of trade union finances at this juvenile level. It is an insult to anybody's intelligence. It seems to me that the whole of Clause 6 is largely unnecessary. Who are these members who want to bring tame accountants with them to probe into the accounts of large unions which have considerable funds and very large memberships? The inspection of books and accounting of records is Victorian; it does not relate to the modern union. If the unions are to be subject to these requirements, then all other institutions should be subject to the same conditions. What is really needed, not only here but elsewhere, is a universally accepted standard of auditing and of reporting to public interest and opinion. Such treatment is prescribed for a very large section of the public sector and it should probably be extended further.

Meantime, it seems to me that we are simply dabbling with something which is quite unworthy of our attention. I regard subsection (10) of Clause 6 as part of that and I do not know how it comes to be in the Bill. Who sits down and thinks up these provisions? What directive are they given and what is the purpose? Where are they trying to get to? I shall tell you where they are trying to get to. This is a biased and critical approach to the trade union movement of today. The whole ethos of the Bill clearly reveals the mentality of the Government towards trade unions: "Let us make them feel that they are under constant observation and that they are smaller than they think they are; let us do this in the sacred name of giving a right to the individual member". We have had some examples this evening of how far that attitude can stretch.

I regard the proceedings tonight on this clause as being quite unworthy of the House of Lords as part of the British Parliament legislating for one of the oldest and most respected branches of working class activity. All the institutions which emanate from the grass roots get this sort of treatment. Friendly societies, co-operative societies and building societies have all gone through it because the Government do not trust those who promote institutions to serve the purposes of the great mass of the people. They do not trust them to deal with their business on the lines of suitable integrity and honesty. It is shameful. It is no good appealing to the reason of Members opposite at this hour of night. They have lost all capacity now for absorbing argument. It is no good appealing to their better nature either. All one can do is to appeal to their sense of shame. That is what I am doing, and now I sit down.

Lord McCarthy

I doubt that one needs to do much after that speech. I think that Members on the other side of the Committee can see how their attitude is viewed on this side. The noble Lord, Lord Houghton, at one point asked: what could be more stupid? But then he went on to show that the Government's action is not so much stupid as malicious. It is not that they do not know what they are doing; in so far as they know, they intend it and they do not intend to do any good to the trade union movement.

The noble Baroness, Lady Seear, is quite right. She asked what party would allow this. Would the Conservative Party, the Liberal Party or the Labour Party allow it? At least if they did, they would have decided to do it. If some party were to say that any branch or ward could march in and ask for the records from six years back, at least it would be a voluntary association under its own rules which decided that. But this Government will do it by law, by fiat, and by all kinds of penalties. As I said earlier, the Minister gave me answers of the "let them eat cake" variety; tonight he gives me "Nothing up my sleeve" replies, and they are not convincing. I withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 51 not moved.]

Clause 6 agreed to.

11.15 p.m.

Clause 7 [Right to require employer to stop deductions of union subscriptions]:

Lord McCarthy moved Amendment No. 52: Page 11, line 15, after ("shall") insert ("notify the union that the employee has so certified and shall").

The noble Lord said: I think we have agreed to consider Amendments Nos. 52 and 53 together. We come now to Clause 7 of the Bill, which concerns check-off. The Government are saying in Clause 7 that the individual worker in future shall have a right to require the employer to stop deductions of union subscriptions from source as it were on notification. In our two amendments, which are in some ways complementary although one could see them as alternatives, we suggest that in all reason the union ought to be notified that the employer is doing this. In our first amendment, No. 52, after the word "shall" we should like to insert: notify the union that the employee has so certified", so that when the employer cancels the check-off he tells the union that he has done so.

Amendment No. 53 is a slightly different way of effecting the same thing. We suggest that the employer should not be able to start cutting off the check-off until he has notified the union. This clause is about the check-off, and our amendment proposes that the employer should be under some slight obligation, even if it is a burden on business and even if he is one of the smallest of small businessmen, when he decides that he must give in to a request of a worker in his employ to cancel the check-off at least to tell the union.

I think that it is necessary very quickly to explain to those who may not know why we have check-off at all. The British trade union movement was very reluctant to agree to check-off. It was one of the last trade union movements in the world to agree to it. The system grew in the 1960s very fast, partly because employers wanted it. They wanted it because they did not want people wasting their time going round the factories collecting subscriptions, or failing to collect subscriptions and thus generating difficulties and disputes about people lapsing. The unions wanted it because it avoided the problem of lapsing. The workers were prepared to accept it—after all, under our law they have to sign and agree to it—because it is a painless way of paying union subscriptions and there is no problem of lapsing.

It now covers some 95 per cent. of trade union members. So far as I am aware—and the question has been studied, though not recently—it is one of those rare phenomena that causes no problems or complaints and was not even mentioned in the Green Paper or the election manifesto. The Government have never told us, and they did not tell us in the other place, why they want to do this. I am not saying that it should not be done. Any employer who is asked to cancel a check-off is under a legal obligation to do so. The system can continue only if the individual worker wants it to continue. I am saying that what the best employers do—which is to inform the union—all employers should be made to do, even if it is a burden upon business. This is an extremely reasonable amendment. We hope that the Government will accept it.

Lord Trefgarne

This clause is concerned with the rights of an employee in respect of deductions from his pay made by his employer. It does not affect his substantive obligations to the union; for example, to pay subscriptions so long as he remains a member. The need for the clause arises from the quite unreasonable difficulties that have sometimes been placed in the way of individuals who sought to stop deduction of union subscriptions from their pay exercising their undoubted right to resign from a union.

The government amendment in another place arranged for the Bill to be modified so as to require the employee to certify that the union knows that he is leaving it, or has done so. It would be quite redundant, and an unnecessary burden on the employer, to impose a further obligatory notification. There is nothing to prevent unions and employers agreeing that such notification should take place if they wish to do so, but I do not think that we ought to provide for it in statute. I hope that the noble Lord will agree with that proposition and will not press his amendment.

Lord McCarthy

The noble Lord almost opened his reservoir then. He referred to quite unreasonable difficulties. I do not know whether he wishes to send for the cavalry for the details. Does he have anything in his reservoir about quite unreasonable difficulties in getting rid of the check-off? It would be quite unlawful to do so even now. I do not see why the Government cannot accept one or other of these very modest amendments. I have to withdraw them, but I call on the Minister now to tell me what these unreasonable difficulties are. I note that the reservoir remains closed.

Amendment, by leave, withdrawn.

[Amendment No. 53 not moved.]

Lord Trefgarne moved Amendment No. 54:

Page 11, line 27, leave out subsections (3) and (4) and insert— ("(3) Notwithstanding anything in any contract between the employee and the employer, or in any agreement or consent signified by the employee, a deduction made in contravention of this section shall in all cases be treated for the purposes of Part I of the Wages Act 1986 as a deduction in contravention of section 1(1) of that Act.").

The noble Lord said: In moving Amendment No. 54, I shall speak also to Amendments Nos. 122 and 137 to 141 inclusive.

During consideration of the Bill in another place, the Parliamentary Under-Secretary of State undertook to consider, at the request of the Opposition, whether Clause 7 could be amended to provide a simpler and more readily understandable procedure. This amendment to Clause 7, and the consequential amendments to Clause 29 and Schedule 3, honour that undertaking.

The clause already provides that where an employee certifies to his employer that there has been, or will be, a termination of his union membership and that the union is aware of the termination, the employer must stop deducting union subscriptions from his remuneration. If the employer nonetheless continues to make such deductions, the amendment will enable the employee to apply under Part I of the 1986 Wages Act to an industrial tribunal for a declaration and a refund of the deductions.

This allows an individual to obtain a refund without first applying to the county court if his rights under the clause are breached, thus allowing for the removal of subsections (3) and (4). In effect, he will be in the same position as any other employee who has suffered an unlawful deduction at the hands of his employer.

Removal of subsections (3) and (4) means that the reference in Clause 29(3) to orders against the Crown is unnecessary and it is itself removed by another of these amendments. The amendments to the schedule are purely consequential. The right given in the Bill for an employee to obtain a refund under the Wages Act 1986 of any political fund subscriptions deducted unlawfully is preserved.

This group of amendments brings about a useful simplification of the clause. I beg to move.

Lord Wedderburn of Charlton

On this group of amendments, our position is one that the Government often take, except with regard to Clause 29, which may be necessary. However, since the whole issue under the Wages Act is a matter of contract in a very broad sense we cannot see why this amendment is necessary. However, as it has been moved we have no objection to it.

On Question, amendment agreed to.

Clause 7, as amended, agreed to.

11.30 p.m.

Clause 8 [Use of funds for indemnifying unlawful conduct]:

Lord Wedderburn of Charlton moved Amendment No. 55: Page 11, line 41, at end insert ("pursuant to any agreement, arrangement or understanding to which the union is a party—").

The noble Lord said: We now come to Clause 8. It falls to me to move the first amendment to it in this excited and crowded Chamber. Clause 8 is particularly obnoxious. It is another clause which takes from trade unions the ordinary law of the land, and takes it from them uniquely.

I should like to place on record my personal reflection upon the evening in the light of what my noble friend Lord Houghton of Sowerby said, which I felt was so much to the point. It was said earlier tonight in previous debates that this was in effect a class Bill. The Minister will not appreciate that analysis, but those of us who have been watching what has happened as the evening has been going on with calm analysis have seen the Government go over the top against trade unions. They were told so from their own Benches on the discipline clause. We have seen the inspection of branch accounts being taken to a ludicrous extent, right over the top, and there are the other clauses that have been debated, and now this one goes over the top, but over the top always in one respect—the union must be picked out, and not just the union, of which the Government are so keen to speak, but the individuals who form that union are picked out for second class treatment and with double standards. If ever a clause did that again, it is Clause 8.

The issue is whether a union should be permitted to indemnify officials, or possibly even others, who have upon its business committed offences. The law is clear at the moment. I support it and so I believe do most fair-minded people in this country. Broadly speaking one must not agree to indemnify for the costs of a crime in the future. That is against public policy. It would be extraordinary if it were not, but one may indemnify afterwards so long as that is a discretionary matter and not done in pursuance of any such arrangement. There are some footnotes to be added and extra qualifications, but broadly those are the two areas.

They were the areas as set out in the case of Thomas v. National Union of Mineworkers (South Wales Area) in 1985, 2 WLR page 1120. Mr. Justice Scott there sets out precisely that test in relation to the reimbursement of fines or penalties incurred by striking miners who fall foul of the law, as he put it. He cites previous authority to say that there is nothing lawful about an agreement to recompense or indemnify for crime in the future. But whereas here the union had power with its rules (because as the law stands union rules are still of some importance) where it has powers to consider the cases of members arrested for offences, and if it thinks fit in the interests of the union and the members as a whole to relieve the financial consequences of the arrests in the past, then that is not contrary to the law.

The amendment would put the clause not perfectly but basically back into accord with the normal rule of law. If ever anything showed that the Government intend to place trade unions alone into a stockade fenced off by special rules, it is their refusal to allow them the very limited power which the law allows to bodies now. It is a power which companies use every day. How many Members of the Committee have lunched with an executive who has parked his car on a meter, then seen him take off the ticket knowing that it would be sent to the company for payment? That is recompense or indemnity of the costs of a crime. Under the clause unless the Secretary of State is gracious enough, embodying himself the ruler of law, to say that by order he will exempt an area of criminal offences, the trade union is not to be allowed to do so and ordinary officials who have done their job and who have, albeit innocently, committed a criminal offence of parking or whatever, are not to be allowed to do so. I should like to ask the Minister a question to obtain genuine information. Is it the case that the clause forbids the union to pay the fines of anyone who is convicted? If that is the case, it is another dimension from which the union is excluded. It would appear that it is. Therefore, this amendment tries to ask the Government whether there is a limit to the way in which they will pick upon trade unions. If there is no limit, perhaps one day they will reflect ruefully upon what they have done. I beg to move.

The Earl of Dundee

I am grateful to the noble Lord. I believe that his amendment would enable a union property to be lawfully applied in a way the clause specifically aims to prevent. The key principle of the clause is that a member should be able without qualification to prevent the use of his union's funds to provide unlawful indemnities. Whether the funds are applied in this way pursuant to any agreement, arrangement or understanding to which the union is a party, is beside the point.

It is not the Government's intention to limit the clause so that, for example, use of union funds to pay indemnities on an ad hoc basis would be permitted. Nor do we intend to limit the member's right so that he might have no grounds for action if his union funds were applied through some kind of holding agency.

The noble Lord, Lord Wedderburn, asked whether in certain circumstances the union would be able to indemnify an individual. I can assure the noble Lord that in certain circumstances that will be possible.

Lord Wedderburn of Charlton

The last part of the noble Earl's response fills me with a certain amount of puzzlement. I thought that he was about to point to a part of the clause that I had overlooked and which allowed that. Perhaps he will do so at Report so that when the reservoir opens we can look at the matter. At the moment I cannot see it.

However, I cannot appreciate his first remarks as a reply because he tells me that the Government intend to have the member of the union prevent the union using its funds or property for the payment of indemnities for penalties of offences. I understood that; it is set out in the clause. Broadly speaking, I am saying that every other organisation in the land has the right to do so ex post facto, with hindsight and discretionary, subject to certain types of offence. They cannot make an agreement to do so in future and I am in favour of that. That has always been the law.

No abuses have been alleged tonight but there may be some allegations in the future. Why is the clause necessary? We are left in the position where I have to beg leave to withdraw the amendment because no other course is open in line with the procedures of the Committee. I have received no reply to the question: why is it there and why cannot trade unions be allowed the same—

The Earl of Dundee

The reason for this clause is that in its absence there is no incentive to a union member to behave in the right way because he knows that, whatever he does, it is quite possible that the union will pay his fine.

Lord Wedderburn of Charlton

I shall obviously refrain from reading the whole passage from the judgment of Thomas v. NUM. But if that were the case the union would fall within the first rule rather than the second. As Mr. Justice Scott makes clear, if, as he says, a union or any other body is so perverse as to make it a practice to indemnify people for the costs of their crime, that is also against public policy. It is only when it is clearly ad hoc and discretionary that the permission exists. I have no answer, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 56 and 57 not moved.]

Baroness Turner of Camden moved Amendment No. 58: Page 12, line 24, at end insert ("and other than an offence committed by an official of the union, other than wilfully or recklessly, in the course of his duties and, in respect of which he ought fairly to be excused having regard to all the circumstances of the case.").

The noble Baroness said: I do not wish to go over the ground so adequately covered by my noble friend Lord Wedderburn. However, I again raise the question of why a union should be constrained in a way that does not apply to other organisations. I know that we shall have the answer that unions are unique organisations. However, there are other institutions—and newspapers are an example—where this kind of constraint does not apply. Union officials become involved in situations from time to time which involve minor infringements of the law. An obvious example is a parking fine. Is the employer allowed to pay a fine for his personnel officer but the union cannot pay the fine of an official? I know that the Minister has said that this is one of the offences which will be protected when we have further information from him but I feel that the situation is entirely unsatisfactory.

Our amendment protects an official in respect of an offence commited, other than wilfully or recklessly—and I emphasise that—in the course of his duties and in respect of which he ought to be fairly excused having regard to all the circumstances of the case. Quite recently a journalist was fined for contempt. The newspaper employing him made an announcement on its front page that it would pay not only the fine but also the cost of the action because the employee had been acting on its instructions and in accordance with its policy. There is no reason why that newspaper should not have the right to do that and I applaud it for doing so.

On the other hand, why are unions to be the subject of discrimination again? It seems most unfortunate that this should continue to be the case and we cannot make the Government see that what they are doing is grossly unfair and terribly inequitable. I commend the amendment to the Committee and should like a reply from the Minister as to why this moderately worded amendment cannot be accepted if that is the situation. I beg to move.

The Earl of Dundee

I entirely accept that the intention of the noble Baroness is to introduce innocuous and moderate measures, but I cannot accept this amendment. It would be quite wrong to limit the application of a clause depending on whether or not an offence had been committed in the course of an individual's duties. An individual's duties, whether or not he is an official of a union, should simply not include activities which lead to him being found guilty of an offence with the consequent imposition of a penalty.

It is also irrelevant whether an offence was committed wilfully or recklessly; and it is up to the court to decide whether an individual ought fairly to be excused having regard to all the circumstances of the case. These are matters of relevance to the courts but not to the clause.

These points are sufficient to explain why the amendment is unacceptable and should be rejected. In the light of that, I ask the noble Baroness to withdraw the amendment.

Baroness Seear

Will the noble Earl please explain whether he intends to bring in similar legislation to stop companies paying parking fines for their employees? If not, why is sauce for the goose not sauce for the gander?

11.45 p.m.

The Earl of Dundee

In reply to the noble Baroness, my noble friend Lord Trefgarne has already said that the Bill is about trade unions, not companies. I think I said when replying to one of the points on a previous amendment that there would be circumstances under which the union would not be prevented from paying the fine of an individual who had fallen foul of the law, and a parking fine might well be one such example. However, a union member might have obtained a parking fine in taking part in secondary picketing or industrial action somewhere, in which case it would not apply. It would apply in certain circumstances.

Baroness Seear

Where in the Bill does it say that this exemption could be made? The noble Earl said that there are some circumstances in which it would not apply. Is that in the Bill?

Lord Houghton of Sowerby

What we are asked to do in every succeeding clause is to take something away from the present responsibilities and powers of the unions. So far as I can tell, nothing in this Bill, and, so far as I recall, nothing in earlier legislation, confers any additional strength on the trade union movement. Throughout the legislation the Government have been building up the response of individual members of unions to the exercise of union power and union responsibility.

That is the ethos of the whole course of action. It is extremely distasteful for anyone who has any respect for the trade union movement to feel that that is the sort of treatment it deserves from any government. It is not conducive to a response from the trade union leadership of any respect for a government who have consistently been following such a policy throughout their term of office. The Government are moving towards a relationship with the trade union movement which bodes ill for the harmony and mutual confidence of the unions and the Government for the rest of the latter's term of office.

The Government may feel that they can ride over this and that they have public opinion on their side, but there is a reaction which may occur. Many people are at present becoming conscious of the fact that the Government's policy is deliberately to floor the trade union movement so far as they can, to weaken its power and to reduce its collective responsibility. That is what is happening. The Government are reducing collective responsibility by promoting individual resistance. The whole basis of the strength of the trade union movement is to get some degree of collective action. Individual actions have failed and have resulted in unity and the added strength of collective action. It is the effectiveness of that unity that this legislation is trying constantly to chip away.

That is something to be deplored. It is reprehensible that we should be kept late at night to continue this process. I hope that for the rest of the Bill we can do rather more business during normal hours of the day.

Baroness Turner of Camden

At this time of night we do not intend to persist with our argument. We shall withdraw the amendment and reconsider the position on Report.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clause 9 [Remedy against trustees for unlawful use of property]:

[Amendments Nos. 59 and 60 not moved.]

Clause 9 agreed to.

Clause 10 [Industrial action to enforce membership]:

[Amendment No. 61 not moved.]

Clause 10 agreed to.

Clause 11 [Action by an employer to enforce membership]:

Lord McCarthy moved Amendment No. 62:

Page 14, line 14, at end insert— ("(2) For the avoidance of doubt it is hereby declared that subsection (1) above does not apply to an employer who declares and makes public his intention to engage persons who are members of a specified trade union.")

The noble Lord said: I understand that this is our last appearance tonight. In Amendment No. 62 we are asking the Government for a declaration. I hope that the very worst that they are going to say about this amendment is that it is not necessary. I hope they are not going to say that it is objectionable or unclear. Those are the only three answers that they ever give. I hope they are going to say that it is unnecessary. Even at this late stage I should be even more pleased if they said that the condition in the Bill is unclear and that this amendment makes it clearer. That is our position.

The purpose of the amendment is to protect the rights of the employer. Surely we can reach some agreement on that. That is the right of the employer to continue to express and act upon his preferences and, his intention to engage persons who are members of a specified trade union". What we have legislated about is very largely the conditions of unfair dismissal or action short of dismissal. In this country there is no right to work and certainly no right to work as non-unionist. There is no right to demand a job as a non-unionist. As my noble friend Lord Wedderburn said earlier tonight, the Government have made it clear in another place that they are not interested in trying to circumscribe or restrict in any way the employers' right of engagement. The individuals that the employer decides to engage and their characteristics are the business of the employer. All we have is legislation about dismissal and discrimination, but not about engagement.

It is true that the 1982 Act prohibited union-labour only clauses in contracts for the supply of goods and services. It prevented secondary action to enforce the closed shop against given employers who were employing non-union labour. It is true that in the area of race discrimination we have something which is broader than the issue of dismissal. But when we come to the engagement of workers on grounds of unionism or non-unionism, we have the words of no less a person than the noble Lord, Lord Young, to say that it cannot be done. As far as we know it has not been tried yet.

The amendment seeks to make clear that employers can if they wish express and practise their intention to engage persons who are members of a specified trade union and that at this moment in time remains quite lawful. I beg to move.

Lord Trefgarne

If I may say so, this amendment is the closed shop having a last rigor mortis wriggle, if that is the right word—a last struggle before it finally sinks into the world of oblivion where it rightly belongs. In any event, the amendment is defective because taken at face value it seeks to retain the whole panopoly of closed shop approval and dismissal for non-union membership for certain employers and accepts its repeal in the case of others. The distinction would be determined by the employer's expressed intention to engage members of specified trade unions. I need hardly say that such a proposal would be quite unacceptable to the Government.

In principle this amendment is objectionable for the reasons that I have referred to. In any event it is technically defective and I therefore invite the noble Lord not to persist with it.

Lord McCarthy

The noble Lord worries me now. It may be the Government are getting tired. There is nothing here about the closed shop. The closed shop is an agreement or practice. We are not talking about anything which a union does: we are talking about the sacred rights of the employer. I am sure that if the Minister goes away and asks other people in government he will find that this Government have not said that they wish to circumscribe in any way the employer's intention to engage people who are members of a specified trade union. It is not to be through agreements, practices or other nasty things like the pre-entry closed shop but by the simple excision of employer preference. Surely even if the Minister does not agree to this amendment, he can at least admit that that is the case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

The Earl of Dundee

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at four minutes before midnight.