Employment Bill

HL Deb 08 March 1988 vol 494 cc644-88

House again in Committee on Clause 13.

[Amendments Nos. 82 to 86 not moved.]

Clause 13 agreed to

Clause 14 [Independent scrutiny of certain ballots and elections]:

[Amendments Nos. 87 to 89 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 90: Page 16, line 38, at end insert ("he is approved by the Certification Officer as suitably qualified and his name is entered on a list maintained by that Officer for the purpose, and")

The noble Lord said: We have now reached, after dinner, the clause concerning scrutiny of ballots and the rules which are laid down in the Bill for the scrutiny to be undertaken by the union. In dealing with the Question whether Clause 14 shall stand part of the Bill, my noble friend will say something on other aspects of the clause. However, the amendment that we have chosen to move relates to the fundamental character of the scrutineer, having in mind the functions that the Bill puts upon him under subsection (2) and the way in which the trade union must ensure that all those functions are carried out. In passing I must add that, although we have not moved an amendment in this connection, we still put to the Government that the absolute character of the trade union's obligations under subsection (2) are too heavy, especially in the light of the points that arise from this amendment.

If one is to have a scrutineer forced by the state upon the elections or ballots of an organisation, and if one is to take seriously the question that he should be independent, then in our submission the legislation should go so far as possible in the direction of avoiding interventions directly by governmental state machinery. Indeed, it is rather surprising to find that that is not so in this clause.

The subsection to which this amendment relates and which would be deleted is subsection (3). It gives the Secretary of State the power to make an order setting out any conditions that he wishes with regard to the qualification of the scrutineer. The scrutineer will be someone set up by the state under qualifications imposed by the Secretary of State without, necessarily, consultation—at least in this Bill as drafted. It is possible—I do not say that it will happen— under this Bill as drafted that the qualifications the Secretary of State imposed were such that, inevitably, the scrutineer would be someone to whom trade unions were not particularly palatable organisations. There is nothing in the Bill to stop that.

It is odd that the Government, I suspect, have fallen into a trap that they had always avoided. They have always taken the line—and it has been much noted in their literature upon legislation—that they were not going down the road of the Industrial Relations Act 1971. One of the reasons that has always come through in their discussions on that, put shortly, is that they were not going to go in for some neo-corporatist legislation setting up a registrar to organise and supervise the trade unions. Some of us have felt that that is now rather more a pretence than a reality. Nevertheless, in the form of their institutions they have always made that distinction.

It is very odd that the Government do not now put forward one of the many very easy solutions that would have avoided this charge. Our amendment suggests that the certification officer is the person who should set up the qualifications and maintain a list of those who might be chosen for the purpose, purely for convenience. We say that the certification officer—a person established under statute, that is true—is someone who in reality has a certain independence. It is an independence that is remarkable through its maintenance in view of the legislation that we have seen since 1980. He has a remarkable degree of trust in the trade union world despite a few tiffs—but that happens in all relationships—and we say that the certification officer is more likely to avoid the charge that these are state imposed scrutineers than if the Bill remains in its present form.

Here I repeat the burden of the point. Subsection (3)(a) gives the Secretary of State the right to establish any condition that he wishes, by order, albeit that the condition has to be put before each House of Parliament. That is not worth a great deal in the terms of parliamentary majorities these days. From that group of people, who meet those qualifications, the scrutineer can be chosen.

It may seem a small point. I suspect that it is a small point which marks a divide. A line is thin but one can still cross it. I move this amendment in the belief that if we are to have this structure it would be better all round that the certification officer played a central role and maintained both the independence of the scrutineers and some independence in the machinery that set them up. I beg to move.

The Earl of Dundee

The Green Paper canvassed in paragraph 5.21 onwards—if my reference is correct—a possible role for the certification officer in independent scrutiny and gave some reasoned argument to draw attention to the drawbacks against it. I am grateful to the noble Lord, Lord Wedderburn, for giving us an opportunity to go over the matter again.

In response to his query on why the certification officer should not be given the job of scrutiny, the disadvantages that we considered include the danger of upsetting the important impartiality of his role in other areas, for example, certifying the independence of the union, and the fact that he already has a quasi judicial role under the 1984 Act that would be bound to lead to a conflict of interests. Nor would he be able to issue statutory orders of his own. These would still have to be made by the Secretary of State. I therefore do not think that there is a good reason for the change proposed in Amendments Nos. 90 and 91.

The noble Lord, Lord Wedderburn, also gave the view that what we are proposing comes down to an unnecessary intervention by government machinery. However, I do not think in context that that can be said because unions will be free to appoint any of those specified, subject to the provisions of Clause 14(3)(b). I am quite sure that within the categories to be specified—whatever the fears expressed now about the specification by the Secretary of State—some will be found who are sympathetic to the unions.

Nor do I think that we need to worry that the Secretary of State will be partisan in his choice of categories. No decision has been made yet but these persons are likely to be bodies with an established reputation in the field—for example, the Electoral Reform Society. The specified conditions are likely to be such as to enable unions to appoint scrutineers from the ranks of solicitors and accountants.

With these few remarks that I hope set the context, perhaps the noble Lord will feel able to withdraw his amendment.

Lord Wedderburn of Charlton

On another occasion, and at some other hour. I do not think that I would do so. The Minister made four points to me; I make four back to him; First, he said that the certification officer has quasi judicial functions. I accept that. He also has administrative functions. For example, he keeps the list of trade unions and he has many other administrative functions. He is the repository of the annual accounts. He publishes an annual report that is the major source of information about union affairs. Between those two it is not found that his quasi judicial functions are vitiated by his administrative functions; and it is difficult to see why this task should bring about a greater conflict of interest.

Secondly, it is said that this would upset the impartiality of the role of the certification officer. I find that rather odd, as though there is something about the job that would upset someone's impartiality. If that is so, then, even more than before, I do not want the Secretary of State undertaking that task. I do not trust a Secretary of State—I do not mean this Secretary of State; of course one never distrusts this Secretary of State. One looks at the power and asks, "What would another Secretary of State do?" Perhaps we did not distrust enough some of the powers that the Government began to take in the realm of education, and higher education in particular. However, we have seen that other Secretaries of State move more quickly to use the power that they have. The power here is without qualification. The noble Lord says that there would have to be orders in the end. There might well have to be regulations setting up the scheme; but, if the Secretary of State could make orders or regulations only on the proposal of the certification officer, then the point is met.

I deliberately did not use the arguments in the Green Paper because I did not think that they were very good. There are better arguments than those in the Green Paper, although the Green Paper discussion seemed to leave the question in the balance. This may seem a small point but it is very serious indeed. It is the first time that the Secretary of State will move in to impose conditions upon the functioning of trade unions in any way that he wishes.

I am rather disappointed that the Government will not consider this again. We have tried to move it in the sense, "We have lost the rest; but what about being constructive here concerning the independence of the scrutineers?" The Government may perhaps underestimate the mistake that they make in putting the Secretary of State in as the engine and the motive power behind the list of scrutineers. However, in view of the hour and the state of the Bill, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 91 and 92 not moved.]

8.45 p.m.

Lord Wyatt of Weeford moved Amendment No. 93: Page 17, line 3, leave out from ("person") to end of line 4 and insert ("by whom all voting papers for the purposes of the ballot or election are distributed to those voting, and to whom all such voting papers are returned by those voting;").

The noble Lord said: This is an extremely important amendment. The person who counts the ballot papers must be the person who sends them out; otherwise there are avenues for fraud which are very wide and would undoubtedly be followed. First, if the union concerned prints the ballot papers, there is always the temptation (which will certainly be acted on in many cases) to print more than are necessary. The surplus will be used by unscrupulous members of a union to distribute to people whose votes they feel will be favourable to the candidate they want, or they will fill them in themselves and send them into the scrutineer.

For example, that used to be the practice in the old ETU. I know that noble Lords on the Labour Benches do not like us to mention the ETU because it was a disgraceful episode in the history of the trade union movement. The trade union movement and the TUC preferred to do nothing about it for years and a group of people including myself, the noble Lord, Lord Chapple, the late Sir Les Cannon and others worked for years to try to get the TUC to put its own house in order and it would not. Finally we went to the courts and received that famous judgment in 1961.

Part of that court case centred on what was called Cobbett's rides, because a gentleman called Cobbett was concerned in one of the malpractices involved. Cobbett's rides consisted of overprinted ballot papers being taken by unscrupulous branch officials, filled in wrongly and posted in a variety of pillarboxes in various districts to make it look as though they had been genuinely posted by the appropriate people, which they had not been. That was part of the fraud.

The kind of fraud that can arise is very difficult to predict because some people will commit fraud if they have control of the printing and distribution of ballot papers. They will be selective sometimes in sending them out. They will not send them to people they feel will vote the wrong way, or they will multiply them in various other ways. It is possible, no doubt, to have sequential numbering of ballot papers as envisaged in the Bill, but it would be quite easy to duplicate the numbers by overprinting, to use them unscrupulously and not even to send out the originals.

My noble friend Lord Chapple knows a great deal about this kind of activity because he was in the thick of it at the receiving end, and perhaps at one time at the transmitting end in the old ETU.

We have gone so far with all this. We have almost everything tied up. We have the independent scrutineer counting the ballot papers, but why can we not finally fix the other end and make sure that he is the person who prints and distributes those ballot papers according to the list of addresses that he is given by the union? That may not be perfect because people may find tricks around it, but it is a great deal more secure than what is envisaged at the moment.

I hope that the Government will consider the amendment seriously. In fact, I hope that they will accept it. What is the point of going to all this trouble to devise a clear and foolproof method to secure a secret postal ballot if one of the ends is not tied up properly?

Ballot rigging is not always confined to extremist, Trotskyists and communists. I fear that even moderate union officials, who are very enthusiastic for their cause, have been tempted from time to time give judicious nudges in favour of their own candidates. This is a quite evenhanded provision. I do not claim that the moderate Right-wing (or whatever one calls them) members of unions are always pure, but there is no sense at all in not having an independent scrutineer in charge of the whole operation from the start. It is true that the independent scrutineer may not have a complete set of addresses from the union, but if the union does not have them it will not have a complete set of its own.

However, it will be a great deal better than the present system. Having to send the addresses to the independent scrutineer also helps to make the unions more efficient. Efficiency in union administration has gone up considerably since the 1984 Act when unions were forced to keep registers of their own members. Sometimes they did not know who they were. It has also forced them to tidy up their administration. This will be not only in the cause of democracy but also in the cause of greater efficiency.

I hope that we can agree the amendment. It is so self-evident that it makes sense. I hope that we shall not have another exhibition of the feudal approach to elections from noble Lords on the Labour Benches, who began with the approach to union elections by saying that there should be none at all.

Lord McCarthy

No.

Lord Wyatt of Weeford

Oh, yes. This used to be done by a show of hands where the landlords, as it were, being the union bosses, made sure that people voted the right way. Then it progressed further to block votes for the branches, and that was manipulated too. In some cases it was advanced a little towards workplaces, but every time the union rulers were asked to advance and extend the suffrage of their members they resisted. They have gone on resisting it. It is so absurd because they must know by now that it is what their members want. It is the history of mankind that those who have power are very reluctant to give it up.

It was the same with the old landlord. We had to have a Reform Act several times in England to have the suffrage properly arranged here; otherwise the wretched tenants or employees of the local landlord were forced to show how they intended to vote. It is exactly the same kind of thing in the trade unions. I implore the Committee to come up to date a little, to stop being like an old feudal baron and realise that we are now nearly in the 21st century and where members are totally different from what in the past we supposed them to be. I hope that there will be no disagreement about this and that the Government will accept the amendment.

Baroness Blatch

I rise to give the amendment the strongest possible support. I am surprised that it is even contentious because it seems to me that it is in the interests of all those people voting, whatever way they vote, that the result should be truly reflected. I suspect that we shall be challenged before the end of the debate on the amendment as to whether irregularities can be proved, or whether it is necessary to pursue the question of irregularities in recent elections. I believe there is disquiet in the minds of the public and certainly in the minds of some voting members of the unions. Therefore, we must have a vested interest in seeing that not only should this operation be done properly but that it should be seen to be done properly.

The area that has given rise to most disquiet is the issuing of the ballot papers, the part of the process which is not overseen, and the counting of the ballot papers when they are returned. I should like to see a consensus from this Chamber that the whole of that process should be done consistent with this amendment. The people we shall serve best are those who vote in the ballots, but the interest is far wider because of the voting impact on the public. One wishes to see a vote democratically cast and processed and then counted so that the result is a true reflection of the intentions of the individuals who exercised their votes. I stress that simple point and hope that the amendment will be supported.

Lord Houghton of Sowerby

Now we are deciding on the form of ballot I hope that the Committee will do its best to make a good job of it. Since 1984 the unions have been a little uncertain about what it is that Parliament may ultimately require. Members will recall the uncertainty into which we were plunged when the noble Lord opposite moved an amendment on postal ballots which prevailed. The Government then discovered that practical difficulties existed. The unions said that they were not ready for postal votes because they did not have the necessary equipment or material. They persuaded the Government to suggest workplace ballots if postal ballots were not possible. Since that time most ballots have taken place at the workplace.

I should like to ask the Minister whether an inquiry or survey has been carried out into the state of play in the administration of trade unions to meet the new requirement. We have not had a great deal of experience of postal ballots on a large scale. In the conduct of the ultimate system adopted, we wish to avoid the recurrence of complaints about ballot rigging or irregularities of one kind or another. The system must be designed to be and look efficient.

All parliamentary candidates will remember the backlog of returned envelopes following the issue of election material. I do not know what the returned envelopes amount to for the electoral officers in the local authorities but many undelivered ballot papers will be around somewhere. Where will they be? Will ballot paper envelopes state that if they are undelivered they must be returned? If so, to where?

What will happen to them when they arrive? Many administrative details must be carefully considered in order to make the system efficient and as free from irregularity as possible.

I hope that some assurance has been received from the unions that they will be able to meet this requirement. If not, I believe that they must be assisted to do so; that is important. I do not see that the custody of returned ballot papers is particularly useful by itself. However, control over the issue and identification of bona fide ballot papers, as against those which may be used irregularly, is another factor. The safeguards which must be made are probably more elaborate than appear at first sight, and that is important.

Many unions will not have a stable electoral roll. In some respects they may be less stable than the parliamentary electoral register because many people move in and out of unions. The register of members must be the basis upon which ballot papers are issued. There must be a closing date and also a date when they must be delivered to the scrutineer. All such matters must be taken care of, but we are used only to physical voting at a polling station. If we were to adopt the conventional method, and it was practical to do so, that would be the best idea for all ballots, whether for unions, local authorities, parliamentary elections and so forth.

However, the kind of ballot about which we are talking will, in some unions, be widely spread. I constantly think of my small constituency of years ago. There are 1,500 offices throughout the country, including those in Scotland and Northern Ireland, and they have so far been the voting stations. The ballot papers have been received there by the local officer who is a serving civil servant. They have been distributed according to his instructions, collected and then returned to a central point. I believe that that has been as watertight a method as one could obtain. However, there we are speaking of electoral rolls of 70,000. But what about 700,000, or over one million? It is not quite the problem which the building societies used to pose in asking, "How does one run a democratic system with eight million members? How does one communicate with them all?".

I believe that, on the whole, building societies probably have a more stable electoral register than have the unions. It would be reassuring to know that this is not merely blowing into the wind and expecting the unions to comply without an assurance that they are prepared and can effectively carry it out. It would be useful for the department to have an idea of how the balloting will be done. Can they provide a model which will satisfy conventional standards of security and efficiency? I am keen on balloting for many issues, and I am keen on efficient balloting. There are dangers in all elections but in some they are very real.

Lord Renton

The noble Lord, Lord Houghton of Sowerby, wisely said that if we are to have postal ballots we had better do the job properly. Although he did not expressly say so, I hope that it was implicit in all that he said that he agrees with the amendment. It naturally follows that if the job is to be done properly we must close the gap that exists in the Bill. It is for that reason that this amendment is important.

It would be absurd if the various purposes for which ballots are to be held under the Bill, and under the 1984 Act, were to be frustrated by our failure to accept the amendment and thus close the gap. I hope I am not being too frivolous when I say that my only regret about accepting the amendment is that it would put an end to all "ballot stamping" parties, to which the noble Lord referred at an earlier stage.

Perhaps I may go back to the speech of the noble Lord, Lord Houghton. He said that we have no experience of postal ballots on a large scale. In parliamentary elections we have had postal votes for absent voters on a fairly large scale; sometimes it involves as many as several thousand in a constituency. That has worked extremely well. Of course, we know that in those cases it is the electoral registration officer who issues the ballot paper; it is not the parties who do that. That is an important factor to bear in mind and is, I believe, the answer to the point raised by the noble Lord.

He also raised another important point which is fundamental to this matter. It happens to be a point which I raised at Second Reading; namely, that no union elections, whether by secret postal ballot or in any other way, can be regarded as properly conducted unless there is a complete and accurate register of those entitled to vote—an electoral roll.

In answer to the point I raised at Second Reading, my noble friend Lord Dundee gave an assurance that the unions had made very good progress indeed in compiling their electoral registers. He said that only one complaint had been made to the certification officer and that was unfounded. As the noble Lord, Lord Houghton, rightly said, we must have electoral rolls and the unions must be prepared for the system. I believe we may take it that he can feel well satisfied on that point.

9 p.m.

Lord Beloff

I hope that the Government will accept this amendment. Indeed, I hope that everyone will accept it for one very simple reason which has nothing to do with the possibility of manipulation, ballot-rigging or whatever it is called. It is normal and customary in all elections in all bodies—and the noble Lord, Lord Wedderburn, is keen to call our attention to bodies other than trade unions—that the function of issuing ballot papers and compiling a list of candidates is the responsibility of the same person who is responsible for seeing that these are collected and properly counted. In parliamentary elections the returning officer has been a major feature of the British scene for a century and more, and other smaller electorates—for example, clubs—normaly follow the same procedure.

I believe that it would be necessary for the Government or anyone else opposing this amendment to give a specific reason why there should be a departure from the normal practice governing the issue and collection of ballot papers. No such suggestion has so far emerged.

Viscount Massereene and Ferrard

I should like to support this amendment. We have had democracy in this country now—to a lesser degree a long time ago—for about 140 years. You cannot have democracy if you do not have a completely secure system where the vote of the individual cannot be mishandled before it is counted or even when it is counted because accidents happen. It is not only the unions that are involved in this. On the whole the unions today are very responsible although there may be a few exceptions. I have often wondered how the ancient Greeks, who invented democracy, voted. I presume that they voted by their hands but I do not know. Of course, it was quite a different type of democracy because it was the democracy of the elite.

Lord Renton

In fact, they voted by means of tokens.

Viscount Massereene and Ferrard

That might be very dangerous because all sorts of things can happen. Amendment No. 82, tabled by the noble Baroness, suggested that members of a union could have their ballot papers sent to their workplace. I have some knowledge of industry and I do not believe that that is a good idea because votes can easily be changed when members reach their workplace; I do not say that is prevalent but it has happened. Therefore, I congratulate the noble Lord who tabled this amendment. Provided that it can be made foolproof—andI do not see why it cannot—I think that the Government should view it very sympathetically.

Lord McCarthy

I thank the noble, Lord Wyatt, for his amendment—not for its substance but for the opportunity it gives us to clear up a number of misapprehensions. In answer to the noble Lord, Lord Beloff, on this side of the Committee we are not saying that there should not be a returning officer to control ballot papers. We are not saying that ballot papers should go adrift. We are not saying that there should be ballot-rigging. We know what people say about trade unions whenever any example of ballot-rigging, however small or slight reaches the newspaper.

We want to prevent ballot-rigging as much as anybody else. That is not the issue. The issue is whether there is so much ballot-rigging and so much evidence of it that we are justified at this point in time not just in accepting this amendment but in accepting the whole function and thrust of Clause 14, which is to create a scrutineer. The issue is whether to create this scrutineer and put into the body of this legislation a compulsory move from a mixture of postal ballots and workplace ballots to a situation in which all ballots are to be postal ballots.

It is in that context that we say that the case is not made. It is perfectly true that most other organisations besides trade unions—and it happens in trade unions, in clubs, in professional associations and so on—have returning officers who control the ballots. But that is not specified by law.They do not have an equivalent of Clause 14 to make them do that. Even in companies, where the secretary of the company is involved in the actual ballot process, a scrutineer is not brought in from the outside. A scrutineer is not imposed on the organisation in the way in which a scrutineer will be imposed on a trade union under the terms of Clause 14.

Therefore, in the context of this amendment, we have to look at what Clause 14 says, because this is the only substantive amendment at this time of night which we intend to press on this clause. In answering the noble Lord, Lord Wyatt, I ask the Minister to tell us how he sees the amendment, and even the clause without the amendment, operating.

There are many aspects about the scrutineer which are of concern to us. There are a series of characteristics that he has to exhibit. He must be independent. He must be competent. He must be qualified. But from where does he obtain his independence, his competence and his qualifications? What sort of person do the Government believe will be a typical scrutineer? I thought I heard the Minister say that the scrutineer could be sympathetic. Does that mean that he could be a trade unionist? Would the Government think it reasonable, for example, to go to the top of the tree and for a trade union to appoint my noble friend Lord Murray as a scrutineer, or could he be said to be too sympathetic, too involved? Let us suppose that it was my noble friend's old union. What kind of people do the Government think will be scrutineers? Must they all be members of the Electoral Reform Society? Must they all be solicitors? Those are the questions we want the Government to answer. It is in that context and that framework that the Committee should look at this amendment.

Lord Rochester

It would be wrong if, after this great debate, there had been no contribution from these Benches. Therefore, I should like to repeat what I said on earlier occasions; namely, that my noble friends and I are clear that trade unions should use the full postal voting procedures under independent supervision for elections to their principal executive committees and that that should extend to the distribution, receipt and counting of ballot papers.

As I see it, the amendment put forward by the noble Lord, Lord Wyatt of Weeford, is a means of ensuring that that independent supervision extends in an acceptable way to the distribution of ballot papers. Therefore, in general terms, I support this amendment.

The Earl of Dundee

I am grateful to the noble Lord, Lord Rochester. In reply to the noble Lord, Lord McCarthy, I appreciate the need, which he draws to our attention, for debating and discussing in general whether it is a good idea to have a scrutineer, but with respect to the noble Lord what we are debating in this amendment is, on the assumption that we have a scrutineer, whether that scrutineer is the best person to send out ballot papers.

I should say straightaway to the noble Lord, Lord Wyatt of Weeford, that I have a great deal of sympathy with what he proposes. However, the noble Lord will understand when I tell him that there are a number of practical difficulties which need to be considered and ironed out before the next stage of the Bill. Having said that, I can assure him that I am prepared to take away his amendment and give it serious consideration to see whether we can come back with amended proposals to those currently contained in the Bill.

Lord Blease

Before the Minister sits down perhaps I may make this point. We have had over 80 amendments dealing with ballot arrangements. We are now on Clause 14 and debating returning officers and scrutineers; we have given thought to the office staff, the postal arrangements and the register. There has been preoccupation with an office of a trade union organisation dealing with ballots, elections and all that pertains thereto.

There are practical difficulties. Will the Government give consideration to the objective of a trade union organisation? They are to give service to its members, to engage in collective bargaining in the interests of production in this country, and to carry on a relationship between workers and management in the interests of its members' wages and working conditions. In this Bill we have been concentrating our minds in connection with suitable ballots, but the practical issues and difficulties arising for trade unions where machinery is being imposed upon them by this legislation must be looked at in a practical manner. Trade unions are denied the right to carry on their ordinary working services for their members.

Lord Wyatt of Weeford

Do I understand from the Minister that the Government will seriously work out a practical scheme for implementing my amendment? If that is the case, I am sure that my noble friends who have been supporting this amendment would be willing for it to be withdrawn. I should like a double assurance to make assurance doubly sure before we take the dramatic step of not dividing the Committee. Perhaps we may hear once more from the Minister?

9.15 p.m.

Lord Chapple

Perhaps the noble Lord will listen to my experience on this matter since my union is the one that is generally mentioned and which is often dismissed by intellectuals in the Labour movement as being a special case. The way in which we conducted ballots after ending the ballot-rigging that took place in our union was to provide for the Electoral Reform Society to send out ballot papers and to receive them. In return the society receives any papers that are misdirected or sent to addresses which are unknown. The union simply provides the electoral roll and pays for the ballot. The society tells the union who has won but it sends out the ballot papers and collects them. It works perfectly well but I do not believe that it works well with the scrutineers missing. If the scrutineers do not send them out or get them back the system will not work.

Baroness Blatch

Perhaps I may be permitted before the Minister replies—

Lord Trefgarne

If my noble friend will permit me, the noble Lord, Lord Wyatt, has put a question to my noble friend and perhaps he would like to reply to it.

The Earl of Dundee

Before replying to the noble Lord, Lord Wyatt, I wish to say that I am grateful for the intervention from the noble Lord, Lord Chapple. It is very useful indeed at this stage and in this context to hear from him about the direct experience in his own union.

In reply to the noble Lord, Lord Wyatt, I certainly repeat again the assurance that I gave a moment ago that we will do everything we can to see whether we can find a way of accommodating his amendment.

Lord Wyatt of Weeford

In view of that assurance, which can be followed up if it does not materialise at Report stage, I happily withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 94 and 95 not moved.]

Lord Rochester moved Amendment No. 96:

Page 18, line 16, at end insert— ("(8) The Secretary of State may, under regulations authorised by section I of the 1980 Act, provide for payment by the certification officer towards expenditure incurred by independent trade unions in respect of ballots satisfying the requirements of subsections (2) to (7) above.").

The noble Lord said: This is a straightforward amendment that I hope the Government will feel able to accept. The Committee has now agreed that without exception trade unions should use secret postal voting procedures under independent supervison for elections to their principal executive committees and that this practice should extend to the distribution, receipt and counting of the ballot papers, as we have just been discussing. We have also accepted as a Committee this afternoon that the chief officers of unions will be required to submit themselves for re-appointment at regular intervals by the same electoral means.

When this matter was discussed in the debate on the Green Paper which was initiated by the noble Lord, Lord Boyd-Carpenter, last year, I pointed out that the cost to unions of employing outside agents to supervise ballots in this way would be very considerable. I suggest that the remarks of the noble Lord, Lord Houghton of Sowerby, in particular a little while ago emphasised that point this evening.

At the time of the debate on the Green Paper last year I asked the noble Lord, Lord Young, who was to respond to the debate, to say whether, as in Section 1 of the Employment Act 1980, the Government contemplated trade unions being able to recover such costs from public funds. In reply the noble Lord said that the Government's intention was, that this scheme should continue to operate broadly as of now. Since our proposals would require trade unions to make more use of postal ballots, they would be in a position to claim larger refunds from public funds."—[Official Report, 29/4/87; col. 1551.] He thought that that would be a sensible response to the Government's proposals. Section 1 of the Employment Act 1980 states: The Secretary of State may by regulations make a scheme … providing for payments by the Certification Officer towards expenditure incurred by independent trade unions in respect of such ballots to which this section applies as may be prescribed by the scheme". It goes on to say: This section applies to a ballot if the purpose of the question to be voted upon … falls within the purposes", which are then specified.

It seems to me that those purposes may not adequately cover the extended use of postal ballots which this Bill will now require. The aim of the amendment is simply to ensure that, to avoid any uncertainty, the verbal assurance given on an earlier occasion by the noble Lord, Lord Young, as I understood it, is written into the Bill. I beg to move.

The Earl of Dundee

The Government already provide substantial financial assistance to unions under the ballot refund scheme, and have done so since 1980. This assistance was offered despite opposition from the TUC and the Labour Party. Some unions came close to being expelled because they dared to apply for assistance. Even now some unions still oppose the scheme.

I am certainly happy to give an assurance that the ballot refund scheme will continue to be available where unions wish to apply for a refund in respect of postal voting. We fully expect the number and size of claims to increase as a result of Clauses 12 and 13, and the Government have therefore set aside considerable extra sums of money—£1.5 million in 1988–89 and £1.7 million in 1989–90 and 1990–91. Unions which change from workplace to postal ballots will become eligible for the first time to apply for refunds for the costs of printing ballot papers which they would otherwise have to bear themselves. This will help them to meet the cost of scrutiny and they will also be able to obtain a refund in respect of the election addresses that they will be required to send to members.

I do not see a reason in principle for relieving unions of the cost which many already bear voluntarily and which is fully justifiable as expenditure by the unions to secure the democratic rights of their members.

Lord Rochester

I am a little disappointed that the noble Earl has not found it possible to accept the amendment. In other words, he is unwilling to agree that the amendment should form part of the Bill. However, as the Government do not see any need for this point to be included in the Bill, I suppose that at this time of night I must be content with the assurance he has given that the substance of this amendment— that there will be reimbursement of expenses incurred in this way—is acceptable to the Government. On that basis, I am prepared to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 14 shall stand part of the Bill?

Lord McCarthy

I do not wish to detain the Committee on this issue at this time of night. I should merely like to ask the Minister whether he will answer the questions which I put to him when he considered the amendment of the noble Lord, Lord Wyatt. The trade union movement is very concerned about this point and is particularly concerned in the light of the answer he gave to the previous amendment of the noble Lord, Lord Rochester.

The employment of independent, qualified, competent scrutineers, if they are to be paid at the rates of the Electoral Reform Society or at the rates of solicitors, barristers and people of that kind, will be very costly. How do the Government see the role of the scrutineer? How far can he be a layman, a retired trade union official, let us say, or someone broadly sympathetic to the trade union movement? Will that be a disqualification? What is independent, qualified and competent?

The Earl of Dundee

Clause 14 does not itself specify the qualifications required of an independent scrutineer; but, as we have already discussed, it gives the Secretary of State the power to issue a statutory order specifying named scrutineers and/or the qualifications others should meet. As is indicated in the Green Paper, we intend that qualified scrutineers will be largely drawn from the ranks of solicitors and accountants. All will have to be independent of the union concerned. Power to specify named bodies will ensure that those already active in the field, such as the Electoral Reform Society, to which the noble Lord, Lord Chapple, has already referred, need not be excluded.

Clause 14 agreed to.

9.30 p.m.

Clause 15 [Remedy with respect to ballot on use of funds for political purposes]:

Lord Trefgarne moved Amendment No. 97: Page 19, line 4, leave out ("subsections (2) to (7) of section") and insert ("sections (Election addresses) and").

The noble Lord said: This amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

Clause 15, as amended, agreed to.

Clause 16 [Ballots on industrial action affecting different places of work]:

Lord Trefgarne moved Amendment No. 98: Page 19, line 17, leave out ("called upon") and insert ("induced").

On Question, amendment agreed to.

[Amendment No. 99 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 100: Page 19, line 31, at end insert—

• ("( ) that all the members entitled to vote constitute all of its members employed by one employer;
• ( ) that all the members entitled to vote constitute persons employed in the same occupational description or grade in a number of employers taken together;").

The noble Lord said: We now come to Clause 16 of the Bill. Having not moved one of our amendments (and we shall match it by not moving a few others), we wish to say at the outset how important we think Clause 16 is. Indeed, it would be very wrong of the Committee not to debate this clause properly, whatever the hour. We are prepared to debate it, just as we are prepared to debate the amendments and clauses which other people think are more important.

I see that the noble Lord, Lord Chapple, has left us; but if I address an intellectual argument in the course of my remarks it will only be because I often feel that in any movement, whatever its label, it is sometimes quite a good thing to have the intellect infuse a little assistance to gut reactions.

This clause requires in its development a great deal of agility. As an introduction, let us position the clause in its place in the scheme of things. Hitherto, in reducing the area of lawful liberty to withdraw labour organised by workers in a union, the Government have had as one of their main themes the division of workers in different units of employment. I am not saying this in any contentious spirit. Of course we have opposed that.

The second reaction: the restriction of picketing to one's own place of work, the re-definition of "trade dispute" in 1982, Part II of the 1982 Act and a number of other provisions, all have in common the refusal to allow lawful industrial action by workers in one employment unit in support of or in sympathy with or in solidarity with workers in another unit of employment with a different employer. There has been a tendency to confine lawful industrial action within the employment unit. One does not say a right to strike because in this country there is no "right to strike" in positive legal terms.

What is alarmingly new about Clause 16 is that it begins from a different base; that is, that there shall be, not employment unit confinement, but workplace confinement with the basic rule that lawful industrial action be allowed only where there is a majority in each separate workplace. That is the starting point of the clause in the new subsection (1A) of Section 11 of the 1984 Act that it seeks to introduce. One must have what I might call briefly—it is not exactly brief, but it is briefer than the proper long phrase—a separate ballot, a separate majority principle, for different workplaces.

Not only do we oppose this but we would say that it is rather silly—and many employers have begun to worry about it as well as trade unionists—because it must lead to fragmentation of bargaining structures. Where there is a majority in one plant, a "no vote" in the next plant and a speckled result across a multi-plant bargaining unit the imagination boggles at the horrendous possibility of fragmentation and chaos in terms of bargaining structures. It may be that the Government regard this as being in line with their policy to decentralise bargaining. It will be interesting to learn how far that is true. So far they have not said so.

Because of all that, the exceptions to the principle of different workplace, separate majority, separate ballot, become critical. It is round the exceptions that the debates have revolved. We submit that only through the exceptions will work managers to company directors and shop stewards to trade union national officials keep their sanity, and only if the exceptions to this quite extraordinary new principle are sufficiently wide. It is a principle for which no justification has ever been advanced except for selective balloting. So far in another place the Government have been unable to produce one example. They had a reservoir of imaginative ideas, but no real facts.

Let us turn to the exceptions in regard to which the amendment is important. It is mostly the unions which suffer for the simple reason that, at the bargaining table, it is the implied threat of industrial action—as any book on industrial relations would tell one, written by whosoever, on the ideological spectrum—that is a very important part of their position and power. That implied threat can be met by injunction at any time if there exists a wide area of illegality and a speckling of majorities. Losing the immunity here and keeping it there would allow for injunctions. Once again, the lawyers are already rubbing their hands—though not the defendant's lawyers.

What does the amendment attempt to do? It would put into the Bill what the Government have said on at least eight or nine occasions should be in the Bill. We say that it is not there. If the Government are serious about these propositions, as we thought they were at one point because they cover some—not all—of the area involved in the difficulty, they do not solve the bargaining unit problem to which my noble friend will come on the next amendment.

I shall explain what I mean. Perhaps I may summarise the clause in this way. It introduced the separate workplace, separate ballot, separate majority principle, with exceptions. However, one was not an exception. It provided that if one had the same place of work it did not apply. Of course it does not apply. It applies only at different workplaces, but I can put that aside. The Government introduced an exception where the workers were called upon to take part in the action. They are of course the workers entitled to vote, and only they are entitled to vote under Section 11 of the 1984 Act.

Those whom the union reasonably considers it will induce or call out are those entitled to vote. That is what I call the voting constituency established by Section 11. There, there must be separate ballots and separate majorities unless in different workplaces the workers were employed by one employer and were either of the same grade or were of the same occupational description.

I put the occupational description and grade point aside because it relates to the bargaining unit point which comes in the next amendment. Therefore, what is left? At first sight, nothing. But if one listened to the Government's understanding of their Bill, there is a great deal more. I wish to quote. I shall refer to every source of my quotations. In view of the hour, unless anyone would like me to read them all, I shall assert what they are. However, I wish to quote the first one or two to give the idea.

The Minister of State, Mr. Cope, wrote a letter to my honourable friend Mr. Strang. It had a considerable distribution without the Minister's objection. He was asked about the matter we are discussing, and in November last year the Minister said: Ballots where the union properly gives entitlement to vote to all of its members (i.e. the 'balloting constituency' consists of all its members) will not be affected at all by the provisions of clause 16. Nor will any ballot be affected where the union properly gives entitlement to vote— (a) to all of its members employed by one employer". That is the first point. He continues: or by each of a number of employers taken together".

That has formed the basis of our amendment. That is what I should call (a) and (b); (a) is in the words of Mr. Cope, but (b) is not in his words because we thought that they were a little ambiguous. We have therefore limited the exception to occupational description and grade. As the Committee will see, the amendment provides for, the same occupational description or grade in a number of employers taken together". Given that amendment to make the provision a little narrower, that is Mr. Cope. The letter is quoted on 10th February at col. 394 of Hansard in another place.

Mr. Cope spoke in response to that letter being quoted. He talked about an amendment that he is going to move. He said: The amendment does not affect the ability of unions—provided by the clause as it stands"— that is, before there is any amendment on the bargaining unit: to aggregate ballot votes across groups of employers, provided that the conditions of the new subsection are met for the groups within the balloting constituency". He seemed to confirm what he said a little more.

In Committee on 14th January (at col. 472 of the Official Report) the Parliamentary Under-Secretary, Mr. Nicholls, used the same formula. He talked about the exceptions, how the selective balloting procedure is to be prohibited and what the exceptions are. He said: it is simply a question of one workplace being balloted, all the workplaces being balloted, or a certain grade or occupational description of employee being balloted". —[Official Report, Standing Committee F. 14/1/88; col. 472.] You cannot have it clearer than that: all the workplaces; one workplace or a certain grade. We have all the workplaces in the sense of all the members employed by one employer which we think is more or less the same thing for the union. That is because ballots under Clauses 16 and 11 are union-specific. We cannot have a multi-union ballot so it has to be phrased in terms—I make no complaint about Mr. Nicholls who was using very short phraseology in the debate—that it means the same thing.

At col. 473 he says the same: selective balloting will not apply if one is dealing with all the workplaces; one workplace; or a particular grade or occupation".

At col. 476 there are more or less the same words. At col. 477 he said: If the only exceptions from the 'new procedure' were to be one workplace or all workplaces, I suspect we should hear even more … about 'bargaining unit'". But he assumed that "all workplaces" was an exception. At col. 480 he said the same thing; at col. 484 he said: it is not a question of balloting everyone in all the workplaces, that exemption does not apply. In other words, he is rebutting an example given to him because he says, "You are not balloting all the workplaces of the one employer with all the members". Then at col. 504 on 19th January he ends the discussion more or less.

Lord Trefgarne

I wonder whether the noble Lord would allow me to intervene. Is he making the case for his amendment by quoting the Minister in another place, or is he about to make a case which we can understand?

Lord Wedderburn of Charlton

I thought we did understand Ministers in another place. I shall reply to the noble Lord in this way. I understand the Minister in another place; if the noble Lord does not, then I suggest that he looks at these quotations and the wording around them. I am trying to cut down my quotations. Yes, I am making my case on the basis that the Government's speeches were more sensible than their Bill, and that what they said was in the Bill is not in the Bill. Perhaps the Minister can tell me that it is in the Bill and show me where—and I mean this Bill; I do not mean Section 11 of the 1984 Act, which is sometimes brought in and which is quite irrelevant to this argument. I am utterly astonished by the Minister's intervention. It has taken me aback. The idea that he should object to my praying in aid of an amendment moved the arguments put by his right honourable and honourable friends in another place is quite extraordinary.

Lord Trefgarne

I am afraid that the noble Lord misunderstood me. What I was puzzled about was the noble Lord moving his amendment and then quoting at length the speeches given in the Committee stage in another place which actually rebutted some similar amendments at that time. If the noble Lord will give me the opportunity, I shall be able to do the same now.

Lord Wedderburn of Charlton

Let me try and put it rather more clearly to the Minister. The argument for the amendment is that the clause as it stands is rather silly: that it will fragment bargaining units, that it will have all sorts of consequences which are quite clear in terms of industrial relations. Secondly, therefore, there should be wider exceptions than are in the clause as it stands. That is until we get to the bargaining unit point which the Government put in in another place. I am not dealing with the bargaining unit as such; I am dealing with all the other matters with which the Government dealt separately from the bargaining unit in another place. I am following their drift. I am saying, "If a union says, 'We want to ballot all the members employed by company X in our membership and its employment', how sensible of the Minister to say that that should escape the selective balloting principle". I do not know how to put it to the Minister more clearly than that. It is sensible without reference to the bargaining unit.

It is not the same problem as bargaining units or common factors. Of course, the next problem is what on earth we are going to do about common factors and bargaining units? I am not dealing with that. I am dealing with what Mr. Cope dealt with. I do not think the Minister takes it seriously enough. The statements have gone out and round the industry. It was not just a letter to my honourable friend Mr. Strang. All kinds of people have received this tripartite statement about what is in the Bill. But those things are not in the Bill.

I cannot find a quotation from the Secretary of State himself but I do not think that he has actually pronounced upon this precise matter. All Government statements that I can find say that there should be and is an exception to separate balloting where: all the members entitled to vote constitute all of its members employed by one employer". The above quotation is taken from our Amendment No. 100. The "members" refer to members of a particular union. That is clear. That provision comes in all of the Government statements. A Government statement suggests that all the members entitled to vote constitute persons employed in a number of employers taken together. But where that provision appears—mainly in the statements of Mr. Cope—it seems a little uncertain. We consider that, in the interests of certainty, to that statement should be added the words of our amendment: in the same occupational description or grade". Those words are taken from the Government's old amendment which was substituted on Report in another place.

The Government know perfectly well that they are in trouble with this. They know that having started from the basis of selective balloting, they then drafted a clause which does not really deal with that. They started with a problem which I think they invented. However, never mind about that. Let us suppose that there was more selective balloting then ever was the case. The Government then say, "We shall not deal with selective balloting. We shall start with the principle of separate majority and separate ballots in different workplaces."

Having reached that point the Government then got into a fix. Sensible people in industry said to them, "Do you really mean that if the Transport and General or the Sheffield Wool Shearers actually wanted to ballot all their members, and they were not all of the same grade or they were not all of the same description or in the new formulation they did not have sufficient common factors, they could not do that?"

The important point is that unless one falls in an exception one cannot aggregate the ballot. One must say to a member on the Liberal Benches "You can strike if your people voted yes." One would have to say to someone on the Labour Benches, "You can vote if your people voted yes." Of course on the Minister's Bench there would be no yes votes for a strike. But if those members on the Ministerial Bench wanted to strike they could all do so if they voted yes.

I suggest that we all think too much of industrial conflict in this matter. It is very often a case of people meeting round the negotiating table. In that situation there is very often an implied threat but stability is not inconsistent with conflicting roles. Anyone who thinks that is a paradox cannot have been very close to collective bargaining.

Stable collective bargaining is obviously threatened here. Everything depends on the exceptions. To help the Minister, again I say that we base this particular amendment on the words used again and again by the Government because we think that they were very sensible. The Minister saw the point here. Ministers wanted to have certain provisions. The only trouble is that those provisions are not in the Bill. We ask the Government tonight to give us some hope that they will put into the Bill what their own Ministers have said should be within it. I beg to move.

Lord Rochester

I share many of the concerns which have been expressed by the noble Lord, Lord Wedderburn of Charlton. This may be a convenient moment at which to express my misgivings more generally about the clause as a whole. On Second Reading I said that, even in the form in which it was amended on Report in another place, I found the clause very difficult to understand.

I further suggested that it was highly undesirable that we should pass legislation couched in language so obscure that it might not be comprehensible to those who would be affected by it. I went on to say why the Institute of Personnel Management feared that the provisions of the clause would prove in practice to be a double-edged weapon of such potential damage to employers that it should be omitted altogether from the Bill.

Since then I have come to be even more unhappy about what is proposed. I do not think that the Government have taken sufficient account of the practical difficulties which employers and trade unions will have, first in explaining the clause to employees and then in operating it. Multi-unions in a multi-site situation make for extremely complicated balloting arrangements. Some may perhaps choose to hold site-by-site ballots and others a company-wide ballot concerned with the same issue. Ballots may take place and the results may he announced at different times.

I suggest that the difficulties will now be compounded further. As I understand the position, unions may at present vary the constituency within a site and may still do so in future while adhering to the provisions of Section 11 of the 1984 Act, which is the operative section. My fear is that those further detailed regulations which the Government now have in mind will eventually culminate in a bonanza for lawyers.

Under Clause 17 of the Bill the Secretary of State is to he empowered to issue codes of practice on the conduct of trade union ballots and elections. Surely, it would be better to address the main points at issue through such a code rather than embroiling industry in further statutory provisions of that kind.

As the Government well know, another organisation worried about the operation of Clause 16 is the Engineering Employers' Federation. I am advised that notwithstanding two attempts it has made to explain the amended clause to its associations, concern about the confusion it will cause remains unabated. That is typified by one association which has written: If the legislation appears in the form in which it is currently drafted, it is beyond comprehension. A working guide for both union and management practitioners will be necessary in order to make clear the spirit and the intention of the law". In my considered view the wisest course for the Government to pursue now would be to withdraw the clause altogether pending further discussion with both sides of industry about its likely effects in practice.

Lord Trefgarne

We shall not do that, I am afraid. The aim of Clause 16 is to prevent the situation where a union, wishing to ensure that a certain group of workers at one place of work are included in a strike, includes with them in the balloting constituency on an ad hoc basis one or more larger workplaces where the members are known to be in favour of industrial action. The union will not be required to hold separate place-of-work ballots if the members it ballots all have the same workplace. Where the members to be balloted have more than one place of work, separate ballots will be required where the choice of those to be balloted is selective. This means that unless the balloting constituency is exhaustive in certain specified circumstances—that is, if the union properly ballots all its members or all its members who are employed by a particular employer, or if all the members of the union accorded entitlement to a vote employed by the same employer have a factor or factors in common relating to their terms or conditions of employment or occupational description not common to any other member employed by the same employer who is accorded entitlement to vote and only where there are other members of the union employed by the same employers not in the balloting constituency—it is not a factor which employees of that employer have in common because of the place or places of work. I give way to the noble Lord.

Lord Wedderburn of Charlton

I think that my question still stands. I am trying to save time. Will the Minister respond to the question whether the formulae which he read out applied to all the members of a union employed by an employer (I think he also said a group of employers, but I am not sure) without any reference to "common factor". Putting "common factor" aside, does he say that there is an exception—as Mr. Cope did—to separate balloting, separate majorities, where all the members of the union are employed by the same employer? If he says that, please will he point to the place in the Bill where that is set out?

Lord Trefgarne

I think that I can help the noble Lord. Where a balloting or voting constituency covers a number of employers a separate balloting requirement would apply only if the criteria of subsection (1B) to which I referred failed to be satisfied in respect of one or more of those voting. The main criterion is the common distinguishing factor which is to be tested against other employees of the same employer. To test it against employees of other employers would be more burdensome for the union. That is the sole function of the reference to the same employer. I hope that that answers the noble Lord's question.

Having responded to the noble Lord's question, I shall now continue. As can therefore be seen, it is not our intention that a union should have to hold a separate place of work ballot where it gives entitlement to vote to every member of the union who is employed by the same employer.

Lord Wedderburn of Charlton

I am very sorry, but that was my question to the Minister. He has just said again that the union does not have to hold separate ballots at different workplaces where it gives entitlement to vote to all of its members employed by the same employer, and I hope that I am getting it right. Will he please tell me where that appears in the Bill? It is not in subsection (1B) because that is about the "common factor"; nor is it in subsection (1B) (a) or (b) because they refer to "the same place of work". It is not in subsection (1A) because that is about separate ballots. So where is it?

Lord Trefgarne

If I may say so, I think that the difficulty is in the mind of the noble Lord. I do not see the difficulty that the noble Lord describes. Perhaps I may continue with what I have to say and in so doing I may be able to help the noble Lord further.

Subsection (1B) of the clause clearly allows an exception for persons of the same occupational description, provided that every member of the union employed by the same employer in the same occupational description is given entitlement to vote. The term "grade", which appeared in an earlier version of the Bill, is no longer needed since grade is clearly a factor relating to members' terms and conditions of employment.

The clause does not, and did not previously, affect the ability of unions to aggregate ballot votes across groups of members or across employers, provided that the conditions of subsection (1B) are met for each of the groups within the balloting constituency. I recognise that this is a difficult and complicated provision, but I believe that it is necessary. I believe that it is clear to those who study it carefully. I recognise that it needs careful study and I believe that the noble Lord has given it that attention. I hope that he is now satisfied with the explanation that I have given.

Lord Rochester

I realise that it was perhaps unduly optimistic of me to ask the Government to withdraw this clause. However, I hope that the Minister will recognise that there is very considerable concern about this clause in the minds of employers and unions who will have to operate it. Although he may not be able to enter into any firm commitment tonight for reasons that we all understand, I hope that at least he will feel able to say that the Government will give consideration to the kind of difficulties to which the noble Lord, Lord Wedderburn, has already given expression and which I have tried to adumbrate on behalf of those who will have to operate the clause.

Perhaps at least he would consider before the next stage of the Bill, in the light of the complexity of the clause, which he himself has now admitted, whether the Government might bring forward something which both takes account of the difficulties that have been expressed and is couched in language that is more easily comprehensible than is the clause at present.

10 p.m.

Lord Trefgarne

I am not willing to agree that we should amend the Bill, as I think the noble Lord is asking, because I do not believe that it would be appropriate or necessary. It is important for the Bill to spell out in proper legal terms exactly what is wanted and required. However, there may be some scope for providing some guidance to employers' organisations, for example, and if that is what the noble Lord has in mind I shall certainly be willing to consider it.

Baroness Seear

Is it impossible for the Minister to look at this matter to see whether the issues can be clarified? If the Engineering Employers' Federation, which is not a rabid Left-wing body ranged to attack the Government, the Institute of Personnel Management, which is made up of people who spend their lives interpreting these matters day in and day out, and the noble Lord, Lord Wedderburn, with whom I disagree on many occasions but who is an expert lawyer in these fields and widely accepted as such, all say that this is not clear, will the Minister not have the modesty to admit that there may conceivably be something lacking in the drafting of this clause?

Lord Trefgarne

Frankly, if I were to accept every proposition advanced by the noble Lord, Lord Wedderburn, that a particular proposal was not clear, I think I would find that there was very little left to any of the trade union and other legislation that we bring before the Chamber. While the noble Lord is indeed an acknowledged expert in these matters, he is also the principal Opposition spokesman on these issues, and the duty of the Opposition is to oppose however meritorious are the proposals that we bring forward.

Baroness Seear

I ask the Minister also to recognise that it is not the opinion only of the noble Lord, Lord Wedderburn, with whom, as I said, I frequently disagree. It is the view of bodies like the Engineering Employers' Federation and other people who are very much more expert in this field than is the noble Lord himself. I am sorry to have to say it so bluntly but that is the position. If those people are experiencing serious difficulties, we are once again in the position of passing legislation which will cause a great deal of confusion for the people who will have to operate it.

Lord Trefgarne

I repeat that it is necessary for the legislation to spell out the proposition in proper legal terms. I have accepted the point made by the noble Lord, Lord Rochester, that there may be a case for guidance to employers' federations. I have undertaken to look at that matter and I think that that specifically meets the point which the noble Lord, Lord Rochester, made.

Lord Wedderburn of Charlton

Perhaps I may say a final word about our amendments, which I can see will not get very far. First, the day on which the noble Lord, Lord Trefgarne, accepts one of my propositions, let alone all of them, I should, if it were not bribery, buy him a drink. However, it is a much more important matter than that.

Secondly, most people with whom I have discussed the matter—and that does not only include members of the TUC, the trade union movement or curious and odd people—think that in both its structure and its drafting this clause is dotty. They really think that. The idea is laughable that this clause can be defended on the grounds that it must be drafted in the proper legal terms.

However, a more serious point is hidden in what the noble Lord said, and at this point I part company with the noble Lord, Lord Rochester. I do not agree at all that the way to pursue these matters is to draft a Bill and not be sure what it means, to put a law on the statute book and then give guidance about it, or, if one likes, to accept that to some people the clause means one thing and to some another and then to give guidance. Not a bit of it! Perhaps that is because—and I admit to it—I have the trade unions more in mind than the employers. It is the trade union that will be on the receiving end of the writ; it is the trade union which is at risk of losing its protection. It will be told that the Minister may well have stated this in the House, and there are his notes of guidance, but that is useless. I should not be in favour of a code of practice here. We ought to have this clearly stated.

I shall withdraw the amendment but I ask the Minister to reflect on this. This is a very serious issue. Is this not the way in which our debate has proceeded tonight, in spite of the technicalities? It is a technical area of the law. First, the Minister has not said that he does not like what our amendments say. He has never resisted the substance of them. Secondly, he says that it is already provided for in the Bill. I admit that if we sat down and dissected the Bill, as it is now drafted, after the latest amendments in another place, we would find that there is a little of our amendment in the Bill—there is a little overlap—the whole of it is not included. Thirdly, and lastly, does not our amendment state it a little more clearly? It could be improved; certainly the second limb could be improved. I should be happy with the first limb. But the first limb is what the Government Ministers said; the first limb appears to be what the Government still want; the Government say it is in the clause. There is enormous disagreement and confusion throughout industry and the academic and legal world as to what it means. The first limb of our amendment states the position clearly. I should have thought that the Government could at least consider the position further before the Report stage. We must wait and see. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCarthy moved Amendment No. 101: Page 19, line 31, at end insert— ("( ) that all the members who are accorded entitlement to vote in the ballot are in the same bargaining unit, that is to say are persons on behalf of whom the union negotiated terms and conditions to he inserted in the same collective agreement;").

The noble Lord said: It is a remarkable tribute to the tenacity and seriousness of the Members of this Chamber that there are any people left after the debate that we have just had on this part of the clause. It may please some Members to know that I differ with the noble Lord, Lord Wedderburn, on this. I do not think that any sense can be made of this clause. The best thing to do with it is to read it.

We have to go back to the beginning of the story. The Government began, without reference to the Green Paper, by trying to change the concept of the area of the ballot. Therefore they got themselves into a position in which they wanted to have ballots on industrial action affecting different places of work. It may be that if the noble Lord had his time over again he would have said that they should not have done this, but they allowed themselves some exceptions. At least ballots on industrial action affecting different places of work which required different ballots in different places might be chaotic but the position would be clear. However, the Government allowed themselves exceptions in certain circumstances. Subsequently, in another place, and in correspondence with the Government by the EEF and other institutions, we have all been trying to discover what those circumstances are.

At the moment I find—as I am sure will Members of the Committee when reading it—that the central part of this clause, which is supposed to deal with the problem of different factors and which is the Government's final amendment on this matter, is extraordinarily delphic. It is a constant series of references to different factors. It states that there is to be, in relation to each of the members of the union who is accorded entitlement to vote in the ballot, some factor"— and we start now— (whether or not the same factor) which—

1. (i) relates to the terms or conditions of that member's employment or to the occupation description which is applicable to that member in his employment;
2. (ii) is a factor"—

the factor is back again— which that member has in common with some or all of the other members of the union who are accorded that entitlement and have the same employer as that member; and (iii) in a case where there are individuals employed by that employer who arc members of the union but are not accorded that entitlement, is neither a factor which that member has in common with any of those individuals nor a factor which individuals employed by that employer have in common as a consequence of having the same place of work". I do not say that the Minister cannot tell you what that means. He may even put it better in other words. It would be difficult to put it worse. One may even be wiser, a lot wiser, as to the Government's intentions as a result of listening to the Minister. But one will never be able to find the intention of the Minister in the words. No matter how long one looks at the words, they will never mean what the Minister says they mean.

My noble friend Lord Wedderburn says that he understands bits of them. And those bits mean some bits that the Minister says they mean. I say that they are gibberish. No man or woman can derive what is meant from the words. It is because of the gibberish that industry is so worried. That is why we move our amendment.

The amendment is somewhat broader than the amendment moved by my noble friend Lord Wedderburn. I justify it by saying that it focuses on the most sensible thing said by the Minister, Mr. Cope, in another place. After various attempts to tell the House what the gibberish meant, he said: In Committee, we promised to consider whether it was possible to amend the clause to enable an aggregate ballot of members employed at different places of work if they were in the same bargaining unit or bargaining group. We pointed out that, although the terms 'bargaining unit' and 'bargaining group' are well understood in general parlance"— they are universally understood in industrial relations on both sides of the bargaining table— they are not easy to write into legislation". If the clause is an example, they are indeed difficult.

Mr. Cope added: That is why we propose the definition in the amendment. It retains the general intended effect of clause 16, but I hope it will go some way to meet the concerns expressed in Committee in favour of a greater element of flexibility".—[Official Report, Commons, 10/2/1988; col. 397.] In other words I understand the Minister to be saying, "I should like to clear all this up by giving you a bargaining unit. You tell me that that is what everybody understands, but unfortunately it is very difficult to put into words."

Well, we have put it into words. Our amendment is a definition of a bargaining unit. The amendment states: that all the members who are accorded entitlement to vote in the ballot are in the same bargaining unit". So as not to be unclear we define it; that is to say, they are, persons on behalf of whom the union negotiated terms and conditions to be inserted in the same collective agreement".

That is a simple working definition of what a "bargaining unit" means. It is charitable to assume that the Minister believes that what I term the floating factor element in the new clause is a kind of bargaining unit definition. This item, which is related in some way to terms and conditions or to occupational descriptions of those who have the same employer if there are enough common factors, will for him cover some bargaining units. Our difficulty is that we cannot tell what bargaining units are covered by it.

I am afraid that this brings us to the reasons why we are in this position. We have to speculate because there was nothing in the Green Paper. But it is worth speculating. We have to ask ourselves why the Government engaged upon an attempt to find ballots on industrial action affecting different places of work. How did they get themselves into all these factors?

If I can take it from what the Minister has said tonight and from what was said in another place, I think that they had two ideas in mind. There were two kinds of devils. There were the mobile militant groups that unions knew about and wanted to grab hold of by the scruff of the neck and shove into the great dough of an unmilitant group to get a vote for a strike. The Government did not want that, so they had to have separate ballots at separate places of work. It reminds one of the Liverpool dockers. Where are they today? That is the kind of mobile militant group that the Government have in mind. They were not going to have that and so they embarked upon ballots of industrial action affecting different places of work.

As was made clear by Mr. Cope in another place, it is not merely the militant group; there is also the mobile coercive group. It is a powerful group which, if it gave its strike effect, would paralyse the company. Nowadays it tends to be computer terminal operators or systems analysts. If one could remove them and pop them into the middle of a factory, one would have a powerful group where, if one could produce a majority in favour, one would be in a wonderful position.

Noble Lords will say that this is fairyland. They are quite right; this is fairyland. In an attempt to justify their position when they were pushed far enough in another place they misread—I do not say that that was intentional—a perfectly reasonable publication of the Institute of Personnel Management when they brought up two cases from the reservoir. The first case was a 22-site ballot which was followed by a strike, which was followed by an improved offer, which referred only to six sites and which resulted in a settlement.

The second case was a first ballot of 800 permanent staff which produced an improved offer. A second ballot was put not only to the 800 permanent staff but also to 300 temporary staff. Nowhere does the IPM suggest that that was done in order to produce a strike. It states that such things can be used although they produce no evidence. It states that selection of constituencies can be a powerful weapon in the armoury of the union manager. However, no evidence is put forward.

If one looks closely at those two cases, the most likely explanation is that the second offer affected different people from the first. It usually does. Therefore the bargaining unit changed and so the ballot had to change. That brings us back to our amendment.

In the real world, trade unions ballot the bargaining group. They ballot all the workers affected by a particular set of negotiations. Who else would they ballot? What fairyland is it when they remove a militant group from somewhere and pop it into the ballot? In fact, that cannot be done. If one has our amendment one is safe because a bargaining unit is defined by the employer as well as the union. If the area of the ballot is the area of the bargaining unit the employer has at least as much say in who goes into it and who does not. He can be relied upon to keep out the semi-militant group or the powerful coercive group. At any rate, it is a matter for industry. If only the Government could bear to accept our amendment, at least industry would understand.

Lord Trefgarne

I explained to the Committee the aim of Clause 16, and the way in which it will operate, in relation to the previous amendment. It is worth repeating the effect of subsection (1B)(b). I repeat that the union will not be required to hold separate place of work ballots if all the members of the union accorded entitlement to vote, who are employed by the same employer, have factors in common Which relate to their terms or conditions of employment or occupational description and are not factors common to any other member employed by the same employer who is not accorded entitlement to vote, and only where other members of the union employed by the same employers not in the balloting constituency is not a factor which employees of that employer have in common because of their place or places of work. I am sorry if that is not clear to Members of the Committee opposite; but it is reasonably clear to me, even with my inexperience and ignorance of these matters, to which the noble Baroness, Lady Seear, referred.

During the consideration of the Bill in another place, the Government were pressed to agree to amend the clause to cover the terms "bargaining unit" and "bargaining group". Although these terms are well understood in general parlance, they cannot easily be written into the legislation. The difficulty is defining these terms in a suitable and sufficient way.

The subsection I have described which was agreed on Report in the Commons provides for a greater element of flexibility by covering situations where there is no settled pattern of collective bargaining. The main point is that if the proper balloting constituency consists of members in the same bargaining group, it would be reasonable for the union to believe that these members had a factor in common which would satisfy the requirements of the new subsection.

As I have said, the clause does not and did not previously affect the ability of unions to aggregate ballot votes across groups of members or employers providing that the conditions of subsection (1A) are met for each of the groups within the balloting constituency. Subsection (1B)(b) will clearly allow an aggregated ballot covering different types of bargaining unit to be held where they satisfy the conditions of what will be the new subsection (11)(1B)(i) of the 1984 Act. I hope that puts the matter clearly for the noble Lord and that he will not wish to press the amendment.

Lord McCarthy

The noble Lord does it again. He is a very slow learner. It is like the Bellman in the Hunting of the Snark: What I tell you three times is true". He says that he has told us this before and has told other people before, and then gives a much better and clearer view of what the clause means. However, it is not in the Bill and it is not derived from the Bill. No one ever does because it is not in the Bill. Secondly, he says that it is impossible to draft "bargaining unit". That is exactly what our amendment does. However, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 102 and 103 not moved.]

Lord Trefgarne moved Amendment No. 104: Page 20, line 21, leave out subsection (3).

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 105 to 107 not moved.]

On Question, Whether Clause 16, as amended, shall stand part of the Bill?

Lord McCarthy

I have no wish to make a speech on this matter. We oppose this, and we have said enough about it. This clause is as bad as it ever was and we wish the Government had never thought of it.

Lord Rochester

I wish to concur with what the noble Lord, Lord McCarthy, has said.

Clause 16, as amended, agreed to.

Clause 17 [Codes of practice as to ballots and elections]:

[Amendment No. 108 not moved.]

Clause 17 agreed to.

Clause 18 [Appointment etc. of the Commissioner]:

[Amendments Nos. 109 and 110 not moved.]

Clause 18 agreed to.

Clause 19 [Assistance by the Commissioner]:

Lord Wedderburn of Charlton moved Amendment No. 111: Page 21, line II, after ("practicable") insert ("(i) where the individual is a prospective party to proceedings, to consult with the relevant union or unions; and (ii)").

The noble Lord said: I shall say just a brief few words on this amendment. We were going so fast that one saw amendments flying through. But perhaps that is in the general interest of the Committee. However, there is a small point—perhaps a tiny point—to catch our breaths before we speed on. That relates to the new commissioner.

The new commissioner is obviously likely to be rather important; someone to whom the individual member, often a dissident member, may well go. He may well go to the commissioner with all sorts of complaints and stories on which obviously the commissioner will want to form a view. Indeed, it is the essence of Clause 19 that he must form a view at various stages.

Given the structure of the clause (to which we object very strongly in many ways but taking the Bill as it is) it is understandable that the commissioner should not be obliged to take any steps in talking with the union after there is (how shall I put it?) the reality of a possibility or the prospect of legal proceedings where there is, even on the horizon, an adversary relationship.

Amendment No. 111 poses this question to the Government. Is not the commissioner in a position, having had just the first complaint made to him, where it would be sensible, in the public interest and—I suppose I could stress this more with this Government—in the interests of the public purse, not to waste time and public money? Where the individual is only a prospective party to proceedings —perhaps it should be even more away from that possibility than the words of the amendment propose—and where the commissioner feels there might be a case, surely his first action should be to consult the relevant union to see whether it wishes to say anything to him. He is not asked to say anything to the union but to obtain the view of the union or unions. This is a small point which nevertheless encapsulates a point of principle in the sense that we do not believe public money should be wasted on a case where the commissioner forges ahead, and it turns out to be quite valueless when it could have been set right had he communicated with the union at the beginning.

I suspect that the Government will say that the amendment is not necessary and that the commissioner will of course do that. I can only say that among many trade unionists and workers there is already a very reserved attitude—not to say hostility—towards this new commissioner. The idea is not liked. I object to it and I understand those who also object to it. Therefore, it might be in the Government's interest to show that they understand this tiny point and say that if there is a complaint the first move of the commissioner should be to consult the union to see what it has to say about the matter.

As I said, it is a small point but it could have big dividends for those who believe in the structure. It could also be fairer and less costly. They are good grounds—

Lord Renton

Before the noble Lord concludes, I should like to say that I thought that this interesting amendment, for which I have some sympathy, was a paving amendment for the next amendment, for which I also have some sympathy. I should have thought that there would be advantages in discussing the two together, bearing in mind that before there can be an agreed settlement, as envisaged in Amendment No. 112, there would necessarily have to be consultation as mentioned in Amendment No. 111.

Lord Wedderburn of Charlton

I am grateful to the noble Lord. He will understand that I was consulting with my noble friends because we divide the work. There are points which perhaps fall to be made rather differently in regard to the two amendments. I am often in a minority and that is why I always understand problems about minorities. My noble friends tell me that I am wrong in believing that the amendments go together. They are not grouped together on the suggested groupings before the Committee.

At the moment I shall simply address the first amendment, although it has consequences throughout. Amendment No. 111 expresses a spirit, a procedure or an approach. I quite agree that some of the other suggestions that we are making are to get rid of the element of hostility which is in the Bill as it stands. As it is drafted, the commissioner is someone who is an engine of adversarial proceedings against the trade unions. One cannot expect the trade union majority, administrators and officials to like that.

Here is a beginning and if the Government are serious in wanting a good relationship, they can express a favourable view of something like Amendment No. 111. I beg to move.

10.30 p.m.

Lord Renton

I was delighted when I saw the reference in the Bill to the commissioner. It seemed to me that the commissioner was to be a kind of ombudsman for trade union members. In addition to that, he is to have the advantage, which the ombudsman does not normally have, of having the power to assist in the institution of proceedings. I have used my words rather guardedly because I do not wish to give a false impression of the meaning of the powers which are described in the Bill.

I do not suppose anyone will wish to dispute those two propositions. It would seem to be only right that, in order to get to the bottom of the problem and for no other reason, the commissioner should be required to consult the trade union. I do not see how he will get his work done well unless his aim is to resolve the difference between the union and the member without going to court if he can possibly avoid it. That is why I was attracted by the proposition in Amendment No. 112, which I agree could well stand own its on feet. I was attracted to the idea of an agreed settlement.

Given this cautious welcome to the spirit of Amendments No. 111 and 112, although Amendment No. 111 achieves its object, I do not believe from the drafting point of view that it has been put in the right place. I would have put it a little later on in the clause. That is a technical matter which can be attended to. The request which I am making to my noble friend is not to give a negative answer at this late hour to Amendment No. 111 or to Amendment No. 112 when we come to it, but, if the commissioner is to be as good a man as we want him to be, then reconciliation should be one of his main objectives. If that is to be achieved, there must be consultation followed by an agreed settlement. I hope that I am not over-simplifying the matter.

The Earl of Dundee

I am grateful to the Committee for the contributions on this matter. I agree both with the noble Lord, Lord Wedderburn, and with my noble friend Lord Renton, but out of context. I have much sympathy with the proposition that the commissioner should be a man who tries to conciliate with the union and to bring matters to a conclusion as swiftly as possible.

Having said that, I should like to outline one or two reasons why I think that in context this would not be the right way in which to proceed. We can see quite clearly that there would be damaging effects if there were a requirement to consult.

A requirement to consult could complicate the commissioner's task to no useful purpose. The commissioner should not be drawn into adjudicating between the parties. That is the task of the court. Such a requirement could lead to delay in dealing with applications where speed was of the essence; for example, a complaint about inducement to take industrial action without the support of a proper ballot. If consultation required the commissioner to reveal the identity of the applicant, that could put the person at risk with adverse consequences in certain circumstances. There are sound reasons for enabling the anonymity of the assisted person to be preserved up to the stage when court proceedings commence. Applicants might well be put off applying to the commissioner if they knew that their identity might have to be revealed then.

On the nature and function of the commissioner, I should perhaps mention that the commissioner will be able to provide assistance only in connection with specified proceedings, and that relevant complaints will have distinct features and needs. All proceedings will relate to complaints to be heard at first instance in the High Court. We have conflicting considerations which (if I may come back to the remarks of my noble friend Lord Renton) would amount to an oversimplification if we were to be in favour of the commissioner concentrating on conciliation. Much the best course is to allow discretion in this matter to rest with the commissioner. The clause neither precludes the commissioner from consulting anybody nor requires him to do so before coming to a decision about whether to provide assistance. That is the right approach and I ask the noble Lord to withdraw the amendment.

Baroness Seear

Perhaps the noble Earl has not understood what it is that we are after. He said that it was not part of the functions of the commissioner to adjudicate. Of course it is not part of the functions of the commissioner to adjudicate; but in any difficulty, as the noble Lord, Lord Renton, was implying, it is sensible to attempt to conciliate, which is something quite different from adjudicating. By saying that the commissioner should not adjudicate, the noble Earl has not answered the case for saying that he should have a conciliation role. They are two quite different functions.

Lord Renton

Before the noble Lord, Lord Wedderburn, replies to my noble friend, I wonder whether I may make one or two comments on what my noble friend has said. I appreciate the point that he has made about anonymity, but that will not apply in every case. There will be cases in which it may be very important for anonymity to be preserved. I can understand that it must be respected unless of course the applicant, the member of the trade union, says to the commissioner, "If you feel strongly that you should disclose my name, go ahead". But if the applicant says, "No, I don't want my name disclosed", the commissioner could still consult the union on a hypothetical basis and without revealing the name of the applicant. With great respect to my noble friend, that was his main point and I do not think that it was a complete answer.

However, I am reassured by what he said on another point. In the clause (which perhaps I have not studied as closely as I thought I had) there is power to consult the union but no compulsion to do so. It would not be a bad thing if we were to aim at consultation where practicable. We have the expression "as soon as reasonably practicable". We could have the expression "if practicable", especially if Amendment No. 111 or something like it were placed later in the clause, which I think would be better.

What I am really stressing is that having listened carefully to my noble friend, and having I believe fully understood the points that he was making, I still feel that it would be to the Government's advantage and to the advantage of the trade unions and everybody else if some further thought were given to this matter between now and the Report stage.

Lord Wedderburn of Charlton

I said in moving this amendment that although it was very small, I suspected it led to matters that were larger. The debate your Lordships have had shows that to be true. I find it quite extraordinary that an amendment that asks that the commissioner who is going to assist individual members of unions to bring proceedings against their union using public funds should not be told that as soon as reasonably practicable. I agree with the noble Lord, Lord Renton, without going into all the aspects that are coming in later amendments, there should be some formula that made it reasonably practicable. I would wish to maintain a duty upon him as soon as proper and practicable to discuss the matter or consult with the other side to see what it had to say. The idea that the noble Minister should present that as a duty to an adjudicator is baffling.

I know the Minister may say that this is not a clause about an employer; but if you are a worker you may be on bad terms with your union; and it is conceivable that you could be on bad terms with your employer, and you look around and weigh up what your prospects are. If you are on bad terms with your union and want to sue it, there will be the commissioner when this is enacted. He has no duty to consult with the union, and you can get him up to the point of issuing a writ, apparently just on your own say-so, because from where else other than from the unions is he to find information?

If you are going to be dismissed, first of all you may not have two years' continuity, and if you are going to be thrown out on your ear you will have no more income coming in. You are going to get no legal aid if you go; you have no commissioner to go to. No government of this sort are going to give you a commissioner. They are not even going to give you legal aid. You are going to have a pre-hearing assessment, when you may be knocked out if they think your case is not very good and told you will be liable in costs if you go ahead. There is no help for you unless you are a member of a trade union. As a matter of fact, it is a rather important function of trade unions to help individuals in industrial tribunals. Everyone seems to think trade unions do not help individuals. That is what they do. They give major assistance to those who are grossly, unfairly dismissed. What is more—and perhaps this is more relevant to the amendment—the industrial tribunal will have attached to it a conciliation officer. The first thing that happens is that the tribunal will know that you will go and try and conciliate. That is a very sensible procedure, and trade union officers and managers and people with the conciliation officer try to find a solution.

What a contrast! On the one hand are the unfair dismissal provisions giving no help to the worker; and on the other hand it is sensibly building in conciliation. Here there is no conciliation or consultation so far but a maximum expenditure of public funds which may all be quite useless. Suddenly the writ is about to be issued, and the union writes a letter saying "As a matter of fact, terribly sorry, but he's got it all wrong. It wasn't his fault. He was telling the truth as far as he saw it but he just happened to get it all wrong".

For a Government that believe in saving their money and in economy this is quite a staggering proposal to put; and then to resist a tiny wee amendment of my own of this sort is quite remarkable. However, I have to beg leave to withdraw it. That is all I can do.

Amendment, by leave, withdrawn.

10.45 p.m.

Lord McCarthy moved Amendment No. 112.

Page 22, line 7, after ("shall") insert ("(i) have a duty to make all reasonable efforts to secure an agreed settlement between a person to whom he is granting his assistance and the relevant trade union before assisting in an application to any court, and the court shall not permit any application from a person receiving the assistance of the Commissioner to proceed until such efforts have been made; (ii)").

The noble Lord said: I cannot say this is quite such a wee amendment. In fact, it tries to take us back to the industrial tribunal model. We say that it should be the duty of the commissioner to make all reasonable efforts to secure an agreed settlement between the person to whom he grants his assistance and the relevant trade union before assisting in the application to any court; in other words, to act as a kind of conciliator. I do not see how that rules out his acting as assistant and aid to the individual trade unionist if the case goes forward to be tried.

What kind of disputes will come before the commissioner and what will his business be? There will be the trade union member who says that the executive council was not properly elected; the candidate who says that he should have won but that the ballots were fiddled; the member who says that he did not get a chance to vote; the person who says that he had the wrong election address or no election address. Quite small things will be brought before the commissioner of trade union affairs. In many ways they will be the type of dispute that, if the matter were not one of unfair dismissal, may well come before industrial tribunals.

From the beginning industrial tribunals took a certain view. They wanted to reduce the caseload and to facilitate an agreed settlement between the parties if they could find one. They thought that it would help if they could bring the parties together, first, in two rooms and eventually in one room to enable discussion to take place to resolve the matter. If the Government had suggested that, we should not have objected, especially if it had been other than in the context of the Bill. When we on these Benches say with enthusiasm that we are not totally, unreservedly in favour of no regulation of trade unions by the state, it always seems to happen very late at night when few Members are present.

In 1968 the Donovan Commission advocated a series of provisions that would have regulated the problems of trade union members who felt that, in closed shop situations in particular, they had a case against the union. I have never been against workers having the right to go to a special tribunal if they believe that their trade union is treating them in some unsatisfactory way, whether under the rules or under some principles laid down by the Government. It is a question of how it is done. In the case of a man who has no conciliation or mediation functions and who, as the noble Lord, Lord Renton, said, is supposed not even to get in touch with the union in the first place, we are bound to view what might otherwise be a reasonable proposal as part and parcel of the Bill. If the Government are interested in what people feel, they should take note of the amendment.

Lord Renton

I have already expressed my views about the advantage of what is envisaged in the amendment. Although the noble Lord, Lord Wedderburn, did not ask the Government to consider the matter further when speaking to Amendment No. 111, I still say that the Government should do so. I hope that they will also agree to consider the matter that arises in this amendment.

The Earl of Dundee

The noble Lord, Lord McCarthy, suggested that the commission should have a duty to conciliate. That is to be distinguished from the suggestion under the previous amendment that the commissioner should have a duty to consult the union. Perhaps I may say, out of context, that I have a great deal of sympathy with that, as has my noble friend Lord Renton.

I hope that noble Lords will forgive me for what will be a partial repetition, but I should like to say a word about the role of the commissioner.

There is no need for the commissioner to be required as a matter of course to attempt to conciliate between unions and members. The ability to do so is a different matter from a requirement to do so.

The commissioner's assistance is to be available to ensure that union members are not prevented from taking certain legal proceedings against their union because they lack the necessary resources or legal advice. The Green Paper explained why such special assistance was required. No similar case was made out for a new conciliation agency.

It might be that there are inadequate facilities for conciliation, and that is essentially what we are considering. Do we have adequate facilities for conciliation? I think that the answer is that we have. Insofar as conciliation is necessary or useful, it can already be done by other bodies; for example, union arrangements and rules which might involve specific agencies with experience in such activities. They are permitted by union rules.

I come to what I see as the objection against trying to combine the commissioner's function as a conciliator with that of an officer, whose post it is proposed to create, to assist union members when they have special difficulties which need to be linked to the courts. Given that the commissioner's proper function need not require him to make efforts to secure a settlement between an applicant and his union, it is clearly inappropriate to impose a requirement on the court, as the amendment proposes.

There may be cases where it is vital that the court deal quickly with an application made to it. That could be the case if the application is made under various clauses of the Bill. A union member may well need the commissioner's assistance to make such an application to the court. It would be wrong to attach conditions to the award of that assistance which might limit the member's ability to get the quick response from the court that is needed.

I do not think that I need go further into the matter. With those few remarks, I hope that the noble Lord might see fit to withdraw the amendment.

Lord Renton

I am sorry to take up time and to be so persistent. I feel strongly, however, that we may be missing an opportunity. It is not a question of the court being required to have a settlement made before it; it is a question, among other things, of the commissioner being able to save large amounts of public money by preventing proceedings going to the court. It should be an earnest concern of the Government to save public money. God knows, the legal aid fund at the moment is costing hundreds of millions of pounds. We do not want to add unnecessarily to the amount of money that is spent on it—because that is what it comes to—if we can have it clearly understood that conciliation is clearly a function of the commissioner.

I am terribly apologetic, because I like to help my noble friends get their business through. I know that yet again it is awfully late. We were here until midnight last night. I think this matter so important that I ask my noble friend to consider it further. That is not much to ask.

Lord McCarthy

I join the noble Lord, Lord Renton, in that request. I found some aspects of the Minister's answer helpful. He was speaking almost as quickly as my noble friend Lord Wedderburn earlier in the evening, and I am not good at writing it down. It seemed to me that he was making a distinction between what the commissioner needed to do, was required to do, had to do, and what our amendment would force him to do, as against what he might do if he thought it appropriate.

I would settle for that. I would say that it was an advance. If the Minister would say that although he does not like our amendment—I agree we say that there should be a requirement to conciliate—he would respond favourably towards an amendment which said that part of the commissioner's function was to conciliate where he thought it useful, we should be going quite a long way.

But later on the Minister said something else which in some ways might be even more helpful. He said that it was open to the union to ask for conciliation. It is late at night for us to start thinking of ways of changing Bills, but that might be an even better way. For example, would the Minister say that it would be open to a union to go to ACAS? After all, the Advisory Conciliation and Arbitration Service has a great deal of experience in these matters; it knows unions very well; it is one part of—I cannot say the government machine because it is an independent agency—the institution of industrial relations which has managed to keep itself quite outside any political in-fighting in industrial relations. It is very much respected by both sides. Could it be a case for the Minister to say, "Maybe if a union found itself brought before the CROTUM," as we call him, "it might say it would like conciliation and go to ACAS"? Would the Minister think about that?

The Earl of Dundee

To respond to the three themes which have been mentioned, my noble friend Lord Renton made the point that we want to ensure that money is in no way wasted over what is proposed. The noble Lord, Lord McCarthy, picked up my reference to how the commissioner could perfectly well consult, if he wished to, but we do not require him to consult. He referred to how the unions should have the facility to refer to outside agencies.

I am in sympathy with all these points; I do not want money to be wasted. The Government clearly wish there to be as much conciliation as possible and in that the commissioner is already enabled to consult and conciliate if he wishes to, the Government in no way wish to impede the commissioner in so doing. I hope that those few remarks may be of some help to noble Lords opposite in establishing what the Government's attitude is to those three themes which have been raised.

Lord McCarthy

I thank the Minister and am very pleased indeed to withdraw this amendment. I can tell the Committee that he says that he wants to save money, he says that he wants conciliation and he says that he is in favour of consultation. I hope that the Government will look favourably on an amendment which we might move at the Report stage to try to facilitate those three ideas.

Amendment, by leave, withdrawn.

[Amendments Nos. 113 and 114 not moved.]

Clause 19 agreed to.

Clause 20 agreed to.

11 p.m.

Clause 21: [Procedure before the Certification Officer]:

Lord Wyatt of Weeford moved Amendment No. 115:

Page 23, line 48, at end insert— ("(4 On any application to the Certification Officer under section 5 of the 1984 Act, he shall, where requested by the applicant, take all reasonable steps to preserve the anonymity of the applicant.")

The noble Lord said: Perhaps it may be convenient also to speak to Amendment No. 116, as these two amendments are somewhat allied. Of course, listening to the debate on the last amendment, I wonder whether it is realised how much conciliation the certification officer already does. That is what I have found out in my investigation of what goes on there. He tries to reconcile the parties in a dispute before the matter goes too far. So in a way the point which has been made by the noble Lord, Lord Wedderburn of Charlton, is to some extent already answered in practice. The purpose of these two amendments is to make it easier for the timid union member to exercise his rights of complaint. One has to be exceptionally brave to stand up against one's own union, particularly when it is in the control of extremists. One can put not only oneself at risk but one's car, house and family. During the miners' strike working miners in areas where other miners were on strike were treated vilely, not just verbally but physically.

The strain of standing up for one's rights can be unbearable. In 1986 the certification officer had only 17 complaints about the conduct of union elections. I would have expected there to be rather more considering the number of union elections which take place and the very large number of unions that are involved. We still have over 400 unions in this country.

I put the small number of complaints about elections made to the certification officer down to a reluctance and unwillingness to be victimised. Of those complaints in 1986 about elections, nine were upheld by the certification officer and eight were rejected. In 1987 however the number had gone down to only 10 complaints of which eight were upheld and two were rejected. That is a very small number. In two cases, TASS and NALGO, the certification officer was unhappy with the response of the unions to the declaration he made about the defects of their election procedures and his call upon them to put them right.

I understand from NALGO that it will soon be complying with the law—it has taken a long time to do it—and that it now intends at its next conference this year to make proper arrangements to come within the terms of the 1984 Act as regards the conduct of its elections. I presume that if this Bill is passed in time it will also be complied with as regards the conduct of elections.

TASS on the other hand, before its merger with the ASTMS, took no notice whatever of the declaration of the certification officer. Although the certification officer had issued a declaration against it on a complaint from within the union no one was then brave enough to stand out and take TASS to court. I assume that they were frightened because TASS is a very tough and unpleasant union run by communists, as I have had to say before in this Chamber.

That is why the second amendment is so important. The declaration having been made by the certification officer and defied, it should be for him to go to the court and ask for the court to give effect to it. He knows all the facts. He has great experience in case law and in sifting the solidly-founded complaints from the shallow ones. It is unreasonable to expect a poor simple ordinary trade union member to then go to court himself. He will not do that unless he is a very brave, very unusual and very exceptional person. One cannot expect such a person to go to court himself and go through all these procedures when all the certification officer has to do is to go down to the court and say, "Here is my declaration. I issued it. The union took no notice. Will you now give an order that they must comply with it?" That is all that has to be done. That would incidentally remove the need for a commissioner in respect of complaints about union elections. I have serious doubts about the work of that commissioner which I think may be a work of supererogation in many respects and certainly as regards elections. If these amendments were accepted, we could save a lot of money.

At the same time it should be possible for a complainant to be able to preserve his anonymity if he so wishes and if it is possible. Otherwise he may be subject to a campaign of vilification, bodily assault and damage to his property which could last for years. Working miners in Scargill areas are still being victimised today.

Of course it is not possible for anonymity always to be maintained if someone is the sole complainant over a particular incident because the union would have no chance of investigating that incident unless the complainant could be identified. Then it would be up to the certification officer to say, "I am sorry. If you want to go on with this case, it is not possible to preserve your anonymity. So you either drop it or reveal who you are".

But apart from that, it is very important to take as much of the burden of hostility and of conducting strange and difficult procedures off the shoulders of simple people who may (and often do) live far from London and who do not understand the ways of lawyers—I am blowed if I understand them myself—or legal proceedings and who are terrified of the whole process.

If the Government would accept these amendments, they would find that there would be more justified complaints. I am not asking for frivolous complaints to be considered because I have a great regard for the certification officer. He throws out a lot of complaints when they come to him, and he tries to get conciliation. But there would be more justified complaints which are now not being brought because people are too frightened to do so. It would make the certification officer responsible, when his declaration has been defied, for going to the court and asking for the court to uphold that declaration. That will cut out the commissioner altogether on such matters, save an enormous amount of expense and take a burden away from the poor ordinary union member who is absolutely petrified. Members of the Committee cannot comprehend what an appalling ordeal it is for ordinary people to go to those fearsome places. I hope that the Government will accept the amendment. I beg to move.

The Earl of Dundee

With the leave of the Committee, I shall speak to Amendments Nos. 115 and 116. I take it that the noble Lord, Lord Wyatt, has spoken to both. In regard to the first of those amendments (which seeks to preserve the anonymity of the complainant with the certification officer) I say straightaway that I have a great deal of sympathy with the aim of the amendment. However, I should like for a moment to put the matter into perspective.

A union member should certainly not be put off making complaints about breach of statutory duty by a union and taking them up with the certification officer because he fears the consequences of so doing. Clause 3 of the Bill can be expected to help. It provides that union discipline, imposed because a member has sought the assistance of the certification officer in connection with a complaint against his union, is to be considered as being unjustifiably disciplined. If a member—

Lord Wyatt of Weeford

Perhaps I may ask the Minister a question. Does he realise that it is not the union officially which may necessarily victimise the person concerned but rather activists and enthusiastic fanatics who take the matter into their own hands? That is one of the reasons why people are frightened to come forward and be out of line with their union. It is not necessarily the union officials who are concerned.

The Earl of Dundee

I do not dispute that at all. As I said earlier, I have great sympathy with the concern of the noble Lord about preventing intimidation. All I was attempting to do was to give the background which forms the Bill now before the Committee, which gives a slightly different balance than had previously obtained.

Moving on from the subject of redress for unjustifiable discipline, if a member faces some other kind of intimidation because it is known that he has made such a complaint, that may be a matter for the criminal law. However, the main point that I wish to make to the Committee is that the amendment is not compatible with our present enforcement system. Part I of the 1984 Act gives rights to persons who are members of the union concerned and were members at the time of the breach complained of. That preserves the important principle consistently followed in the Government's reform of industrial relations and trade union law since 1979 that enforcement is left to those directly affected by an unlawful act of a trade union. Under the law the union must be entitled to challenge the locus standi of the complainant and it would not be enough for a certification officer to be satisfied that a particular complainant was eligible to bring the complainant concerned.

Perhaps I may move on to the second theme in the remarks of the noble Lord, and to the question of whether the certification officer should have the right to initiate a complaint directly with the union. I say to him that the legislation guarantees the rights of ordinary union members and candidates in union elections. It must be for those members and candidates themselves and not some third party to decide when and how to use those rights. The Government's view has always been that it is far better for enforcement of election and register duties to be in the hands of those directly affected by a union's unlawful actions, such as union members themselves, and not of some external, government sponsored institution. Governments should not risk the benefits of legislation by making its operation depend on action by a government sponsored supervisory agency, or even associating it with action by such an agency. We should not allow union leaders to present their unions as victims of unwarranted state interference in their affairs. The experience of intervention by ACAS in the context of union recognition shows the difficulty of imposing duties on state agencies in respect of inquiries into industrial relations matters.

At this time of night I am reluctant to go very much further into the matter. I should perhaps add that the position of members is not as weak as one might imagine. Complaining to their certification officer is simple, cheap and informal. It is an alternative to, not a substitute for, complaining directly to the High Court. It has been used and used effectively in many cases and experience indicates that there are certain union members who are neither timid nor intimidated when it comes to making applications to the certification officer.

Lord Wyatt of Weeford

Perhaps I may try to explain to the Minister what I mean. I am not asking the certification officer to interfere. I am asking him to finish off something that he has begun. He has already made a declaration to the union that in his judgment it has not complied with the law and would it kindly do so. It has defied that declaration. All he has to do is to walk down to the court, give the facts as he sees them and say, "Will you please enforce my declaration?" Instead, for some insane reason, the Government want to introduce a commissioner and high powered and very expensive lawyers, and put the unfortunate complainant—we assume by this time he is not anonymous—through the trouble and hazard of a hopeless reading of papers and God knows what else all over again in a case which has already been settled by the certification officer. What is the point of the second shot? The commissioner is being made into a kind of appeal body for the certification officer.

So far as I have been able to observe his working, the certification officer is a highly sensible and intelligent person who has been using his own case law and understands the position. He does not take up phoney cases; he rejects them. So why should the Government want another state commissioner to overpower and terrify the simple complainant in election cases when it is not necessary?

11.15 p.m.

Lord Rochester

If, among other things, the noble Lord, Lord Wyatt, is saying that we should do better without this commissioner at all, I for one am happy to agree with him.

The Deputy Chairman of Committees (Lord Airedale)

Is the noble Lord asking leave to withdraw the amendment?

Lord Wyatt of Weeford

No, not at all. Well, I suppose that I shall have to ask leave to withdrawn it, but I think that it has not been given sufficient consideration. However, it is much too late at night and everybody wants to go home, which I understand completely.

Noble Lords

Hear, hear!

Lord Wyatt of Weeford

But this is not the correct way to deal with something that is so important and fundamental to the legislation. It ought to be given serious thought. I hoped that it could have been postponed to another day instead of our trying to deal with it when only about 10 Members of the Committee are present.

The Deputy Chairman of Committees

Is the noble Lord asking leave to withdraw the amendment?

Lord Wyatt of Weeford

I suppose it might be interpreted as that.

Amendment, by leave, withdrawn.

[Amendment No. 116 not moved.]

Clause 21 agreed to.

Clause 22 [Interlocutory and interim orders.]:

Lord Wedderburn of Charlton had given notice of his intention to move Amendments Nos. 117, 118 and 119:

Page 24, line 4, after ("applies") insert ("on not less than three days' notice save where the court after notification to the defendant gives leave for further notice")

Page 24, line 8, at end insert— ("(2A) In section 17 (1) of the 1974 Act there shall be added at the end the following words 'and an affidavit shall be provided to the court at the hearing if an application that all such steps have been taken and setting out what those steps were'.")

Page 24, line 8, at end insert— ("( ) In section 17(2) of the 1974 Act—

1. (a) after the words "trade dispute" there shall be added the following words, "or resists an application made under section 1, 6, 9, or 15 above, or section 5 of the 1984 Act", and
2. (b) for the words "have regard to the likelihood of that party's succeeding" there shall be substituted the words "not grant the injunction unless that party appears to it to be likely to succeed".")

The noble Lord said: The night is young and although we now come to what, in our view, is perhaps the most important clause in the entire Bill because it concerns injuctions—I see the Minister disapproves but perhaps he will first just listen to the consequential part of the long sentence on which I am embarked. Although the clause is about the most important part of the Bill, because the injunction is the engine which puts into motion all the big wheels of the law against trade unions, and although the clause must be debated, perhaps I may put to the Committee our view that the context in which these amendments come (and they are relevant to so many different areas) is or may be changing. Indeed, in our view much that has been said tonight makes it sensible to debate the function of injunctions more properly when the Bill comes to the Report stage.

Therefore, so long as the Ministers and the Government have no objection to our doing that in the light of the changing perspective and context—that is to say, debating these matters fully and properly on Report, when they can be discussed more widely by the House—we should be prepared not to move Amendments Nos. 117, 118 and 119 tonight. Perhaps I may leave the matter there; it is a conditional offer not to move the amendments. It is a somewhat unusual proposition but one which I am sure Ministers will appreciate since the decision lies in their hands.

Lord Trefgarne

I am sure that I am wholly out of order in rising to speak at this moment, but of course the noble Lord is entitled to table what amendments he thinks fit at Report stage, provided that they do not deal with a matter on which the Chamber has already reached a decision. If, therefore, the noble Lord decides not to move his amendments tonight, he will be perfectly at liberty to table them at the Report stage.

Lord Wedderburn of Charlton

Finally, at long last the Minister and I have reached agreement on a small point. I propose that none of these three amendments be moved.

[Amendments Nos. 117 to 119 not moved.]

Clause 22 agreed to.

House resumed.