Lords Sitting of 14 March 1988

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

Self-Regulating Organisations: Registration
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether they are satisfied that the relevant self-regulatory organisations (SROs) are equipped to handle effectively the expected quantity of applications for registration before the final date in April for authorisation to transact investment business.
Lord Beaverbrook: My Lords, it is not necessary for the recognised self-regulating organisations to process every application for membership before the Financial Services Act comes into force in April. Any business which made a valid application for membership before 27th February will receive interim authorisation until such time as its application is determined. I know that the self-regulating organisations are eager to ensure that applications are processed as speedily as possible consistent with the requirements of the Act.
Lord Campbell of Croy: My Lords, I thank my noble friend for that Answer. I feel reassured by the confidence which he has exhibited. Nonetheless, do the Government recognise that, because some rules and other edicts have not appeared until very recently, an unduly high proportion of applications are likely to be made at the last minute?
Lord Beaverbrook: My Lords, firms have known since last summer that the key provisions of the Financial Services Act would be introduced in April. They have had plenty of time and opportunity to apply for authorisation.
Lord Williams of Elvel: My Lords, how will the Government ensure that the public are aware of which firms may not do business after 1st April?
Lord Beaverbrook: My Lords, I recommend that members of the public should be sure to ask any firm with whom they are doing business whether that firm is registered with the relevant self-regulating organisation. The Financial Services Act is now becoming widely known. I believe that any sensible investor must specifically ask that question of those who look after his money.
Lord Morris: My Lords, surely it is incumbent on regulatory authorities or indeed on businesses themselves to demonstrate the fact that they are registered, rather than placing the onus on members of the public.
Lord Beaverbrook: My Lords, there are considerable penalties involved for firms who undertake investment business without being registered with the relevant SRO. However, the important point is that from April all investors will have a regulator to whom they can turn in the event of a complaint. That will be true in some areas for the first time.
Lord Diamond: My Lords, does the noble Lord believe that the best method of coping with the congestion of business which was bound to arise at this time was to get rid of the chairman of the SIB?
Lord Beaverbrook: My Lords, I pay tribute to the achievements of Sir Kenneth Berrill. I am not prepared to go into the background involved in that change of chairman. However, I am sure that the new chairman will do an excellent job.
Lord Campbell of Croy: My Lords, the terms of the Financial Services Act have been known for some time. However, will my noble friend agree that there has been little time in some cases? Perhaps the House will excuse my use of an acronym in giving an example, but I understand that LAUTRO did not promulgate its rules until last month.
Lord Beaverbrook: My Lords, my noble friend is correct. There are problems with LAUTRO. However, any firm that would normally have LAUTRO as its SRO will find that for the time being other arrangements have been made so that it may carry on investment business.

EC Budget: UK Contribution
2.40 p.m.
Lord Jay Lord Jay asked Her Majesty's Government:
What will be the United Kingdom payment to the EC budget, less rebate, for the first year in which the agreement reached at Brussels on 13th February takes effect compared with what would otherwise have been payable.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, the Commission's latest budget proposals before amendment by the Council and the European Parliament envisaged that our gross contribution in 1988 would be some 5,120 million ecu or £3,550 million after abatement, compared with an estimated maximum of some 4,640 million ecu or £3,220 million if no agreement had been reached at Brussels. Because of higher United Kingdom receipts, our net contribution will increase by less than our gross contribution.
Lord Jay: My Lords, I thank the Minister for those figures. Do they not mean that, far from a firm limit having been set and financial discipline imposed on the common agricultural policy, expenditure will now increase further, as well as the liability on the British taxpayer?
Lord Brabazon of Tara: My Lords, growth in agricultural spending will be limited to 74 per cent. of the growth rate of Community GNP. That limit, unlike previous limits, will be incorporated in a legal instrument. It should therefore be sustainable.
Lord Hooson: My Lords, is the Minister able to tell us what the German contribution to the same budget is?
Lord Brabazon of Tara: My Lords, I do not believe that I can answer that question precisely. However, I know that one German newspaper stressed that the cost to the Federal Republic would be 4 billion deutschmarks, rising to 10 billion deutschmarks by 1992.
Lord Bruce of Donington: My Lords, is it not the case that in Government expenditure plans covering the year in question the net payment to the EC for the year 1988–89 was put at £800 million; for 1987–88 it was put at £1,400,000; and that, even taking the calendar year (which I presume the noble Lord is doing), the figures that he has given to the House represent a colossal increase over and above what the Government had originally planned? Will the noble Lord tell the House whether those figures include £900 million which has been requested by the Commission from the United Kingdom on loan or non-reimburseable advance towards the cost of disposing of surplus stocks?
Lord Brabazon of Tara: My Lords, from the information that I have, the increase in the United Kingdom's net contribution arising from the future financing agreement is some £200 to £300 million a year compared with the continuation of the current 1.4 per cent. VAT ceiling, and £100 to £200 million a year compared with the effective level of spending in 1987. From the figures available to me I cannot identify the £900 million to which the noble Lord refers.

Rover Group: Disposal Negotiations
2.43 p.m.
Lord Williams of Elvel Lord Williams of Elvel asked Her Majesty's Government:
Whether it is consistent with the fiduciary duties of the directors of the Rover Group for the Government and Rover not to consider offers for the Rover Group other than from British Aerospace.
Lord Beaverbrook: My Lords, British Aerospace wished to negotiate on an exclusive basis only. The Rover Group board recommended that, taking into account the overall interests of the business, exclusive negotiations with British Aerospace should be pursued. The Government have accepted this advice, provided that negotiations are concluded by the end of April.
Lord Williams of Elvel: My Lords, I am grateful to the noble Lord for his response, which does not exactly answer the Question that I asked. Will he tell
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the House whether there have been approaches from other parties in respect of the Rover Group during the past six months?
Lord Beaverbrook: My Lords, the Government have undertaken to negotiate with no other parties until the end of April, that is, to negotiate only with British Aerospace. If those negotiations come to a successful conclusion the Government will then consider all relevant factors before accepting the outcome of the negotiations with British Aerospace. As regards other approaches, it would not be appropriate for me to comment other than to say that any exchanges or expressions of interest are commercially confidential.
Lord Diamond: My Lords, is it not a wholly unsatisfactory state of affairs when the Minister is not prepared to come clean—if I may use the phrase—about the Government's intentions with regard to the disposal of a national asset? Does the Minister not recognise that the Government are in the position of trustees and have the duty to try to secure the highest possible price in the interests of the beneficiaries—who are the whole of the British nation? Does he recollect that I raised this matter at the very moment that the original Statement was made? The matter is still not cleared up. Finally, is he aware that in interview after interview the chairman of British Aerospace has made it perfectly clear that he realises the strength of his negotiating position and has said in advance that he is prepared to give very little for the purchase of this company?
Lord Beaverbrook: My Lords, what the chairman of British Aerospace has said to the shareholders of his own company or to the press is one thing. I have already said that the Government will consider all relevant factors before accepting the outcome of negotiations with British Aerospace.
Baroness Seear: My Lords, the Minister told us that the Government would consider the position at the end of April if there had been a successful conclusion to the negotiations. Can he tell the House how he will judge whether or not those negotiations have been successful as they affect the taxpayer?
Lord Beaverbrook: My Lords, as I said at that stage, the Government will have to consider all relevant factors before accepting the outcome of the negotiations.
Lord Williams of Elvel: My Lords, can the noble Lord tell us why other expressions of interest are so commercially confidential? After all, the Rover Group is apparently available for sale. That has been known for some time. Is it not the case that there have been, and continue to be, other expressions of interest, and that these are being pushed aside by the Government? To return to my original Question, is that consistent with the fiduciary duties of the Rover Group directors and the Government?
Lord Beaverbrook: My Lords, I also have seen press reports of other approaches with regard to the Rover Group. The Government have entered into

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negotiations for the Rover Group with British Aerospace on an exclusive basis. Until the end of April the Government will not negotiate with any other party. The reason why any other approaches are confidential is that they have been made on that basis. We are not prepared to negotiate at this time.
Lord Cledwyn of Penrhos: My Lords, if an offer is made which is better than the British Aerospace offer, would that be a relevant consideration?
Lord Beaverbrook: My Lords, that would certainly be a relevant factor.

Post Office Advertisement
2.48 p.m.
Lord Airedale Lord Airedale asked Her Majesty's Government:
Whether, in view of their campaign against robbery, they propose to make representations to the Post Office regarding a Post Office advertisement stating—"We don't think that credit transfer is a good idea … keep your money where it works best, in your hand".
Lord Beaverbrook: My Lords, it would not be appropriate for the Government to intervene in what is a commercial matter for the Post Office.
Lord Airedale: My Lords, does that mean that the Post Office is entitled to hide behind a rule about day-to-day operations in the course of publishing a statement of general policy with which most people do not agree?
Lord Beaverbrook: My Lords, I regard the Post Office's response to the DHSS campaign as a legitimate commercial response. The Post Office is as entitled as any other organisation to compete for customers.
Lord Airedale: My Lords, does the noble Lord suppose that the Post Office talks to its friends at the National Giro before it publishes such an advertisement?
Lord Beaverbrook: My Lords, I am not quite sure to what the noble Lord refers. The National Giro may well have come into it. The Giro Bank certainly represents one way in which the DHSS is able to transfer money to recipients.
Lord Williams of Elvel: My Lords, does the noble Lord agree that in this advertisement the Post Office is advising the public not to deal with the Giro Bank since the Giro Bank handles credit transfers—quite properly, as it was set up to do? In advising the public that it does not think credit transfer is a good idea, is not the Post Office depriving its subsidiary of business?
Lord Beaverbrook: My Lords, that might be a slight effect of the point that the Post Office is making in the advertisement, but no doubt it is also trying to make the point against all its competitors in the commercial banking world.

Business
2.50 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Employment Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the Committee stage of the Matrimonial Proceedings (Transfers) Bill and the Second Readings of the Foreign Marriage (Amendment) Bill and the Duchy of Lancaster Bill will be taken.

Consolidated Fund (No. 3) Bill
Brought from the Commons, endorsed with the Certificate of the Speaker that the Bill is a Money Bill, and read a first time.
Then, Standing Order No. 44 having been dispensed with (pursuant to Resolution of 9th March), Bill read a second time; Committee negatived; Bill read a third time, and passed.

Regional Development Grants (Termination) Bill
Brought from the Commons; read a first time, and to be printed.

Employment Bill
2.53 p.m.
The Minister of State for Defence Procurement (Lord Trefgarne): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Trefgarne.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES (LORD ABERDARE) in the Chair.]
Clause 23 [The Training Commission]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 120ZA:
Page 24, line 20, after ("sixteen") insert ("but members appointed in addition to the ten specified in that section shall have an advisory role only").
The noble Baroness said: As it stands the Bill seeks to change representation on the Manpower Services Commission, which is now to be known as the Training Commission. Since 1973 the commission has consisted of three commissioners representing employees via the CBI, three commissioners representing employees nominated by the TUC, plus representatives from the local authorities and a

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representative from the field of education. The Bill seeks to add to that number further employers' representatives who are not nominated by the CBI but appointed directly by the Government.
The MSC has opposed that change. It felt that such additional employer members would upset the current balance which has enabled the commission to function effectively. During our debates on this Bill much has been heard about the need for balance. This proposal is another instance of the Government going over the top in their attitude to trade union representation and disturbing that balance, because the new employers' representatives will certainly have the effect of weighting the commission against trade union influence.
The TUC General Council, of which I was a member until last year, has always supported training programmes and the Manpower Services Commission. This has not always been easy. Voices have been raised within the trade union movement against continued participation in the commission and against particular schemes. The YTS in particular has been heavily criticised as not providing proper training and because of the level of allowances, which were seen to be too low. Nevertheless, the TUC has seen its role as directed towards ensuring that quality training is provided rather than cheap labour schemes, and the General Council has hitherto been successful in persuading the trade union movement that at every level co-operation with the commission is desirable.
To me and to these Benches the Goverment's proposal in this Bill appears to undermine the contribution which the trade union movement has made and should continue to make. If the trade union commissioners are to be swamped in this way by employers' representatives who are directly appointed by the Government, pressure will grow for the TUC to withdraw altogether from the commission on the grounds that its representatives are simply prisoners of an in-built majority. That would be a great pity and entirely counter-productive.
The Government may say, as indeed they have said already in another place, that the employers' representatives are required to be there in force because they are the ones who will be expected to provide the training. My amendment acknowledges that fact. It does not seek to debar them from membership but to restrict their role to an advisory capacity. In that way the essential balance can be maintained. If the Government are genuine in saying that they are not anti-union and do not want to marginalise the trade union movement, but are concerned to ensure continued trade union co-operation in training, then in our view they should accept the amendment.
I ask the Committee to vote for the amendment. If it is accepted it will be necessary to move a similar amendment to Clause 28, which contains similar propositions. We shall table an amendment at Report stage in order to bring that clause into line and maintain consistency. I beg to move.
Baroness Seear: I want very strongly to support this amendment. For the past four years I have been chairman of a local board and through all the difficulties of ensuring full support for the YTS, trade union loyalty to the scheme has been absolutely essential. In the case that I have been concerned with and, I believe, throughout the country, trade union support has been very good indeed. After all, these measures have to operate at local level. If the trade union representatives feel that inevitably they will be outnumbered and down-graded—on the committees one does not vote very often but it happens from time to time—one runs the very considerable risk of losing that absolutely essential trade union support.
I know that the Government will say that they want more employers' representatives because they want employers to represent different facets of employment. They want the small employer as well as the large one, the retail trade and so on. I suggest that that is not a very powerful argument. On these committees one wants employers who are experienced in training, who understand the problems and have enthusiasm for training. Our experience has been that employers find it extremely difficult to make time to attend. Employers must be enthusiastic and want to come to the committees.
I believe that it will be very difficult to get people to turn up to man the committees in the numbers that are suggested and that they will be hampered to no good effect at all. I very much hope that the parity of the trade unions will be maintained, both centrally and locally.
3 p.m.
Lord Boyd-Carpenter: This amendment does neither one thing nor the other: it does not retain the membership of 10, which seems to appeal to both the noble Baronesses who have spoken; on the other hand, it proposes that six of the 16 members should attend only in an advisory capacity. It is not very clear what precisely is meant by "an advisory capacity", although I suppose it means that they would have no vote in the event of a difference.
However, the idea that one has carefully to constitute the commission so that there is no majority for one source of membership or another is quite misleading. There is no reason to believe that the present commission has voted on party lines, still less reason to believe that the Training Commission—as it will become—will similarly vote. There is something slightly derogatory, of being a second-class citizen, in being put on a body some of whose members have full voting rights and are full members, and some of whom are only there in an advisory capacity. The difficulty the noble Baroness, Lady Seear, has suggested in getting good enough employers—employers with enough experience—to serve would be accentuated if all that they could be offered was a post in an advisory capacity.
I share the Government's view that one wants additional employers on this body. It is the employers who will be responsible ultimately for training, and, with the vast variety of British industry today, in particular with the development of the new technologically important industries, very few people will have the knowledge to cover the training needs of

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more than a small section of industry. Therefore one requires—and this I understand is the purpose of the clause—a fairly wide spread of employers who will have between them the knowledge of the training requirements of most of British industry. I suggest that one will not attract those if one puts them on a body in a slightly derogatory way.
When I read the amendment I could not help being reminded of—and Members of the Committee may recall—the pleasant story of the preacher at one of those sects that indulge in extempore prayers at their services. He was heard to say, "Oh Lord, use me. Oh Lord, use me—be it only in an advisory capacity."
Lord Campbell of Alloway: I cannot support the amendment because the additional members in this important task ought to have a full vote and ought not to have merely an advisory role. However, the amendment raises a very important point of principle. The principle of parity between the employer and employee representatives on the commission was enshrined by Section 1 of the Employment and Training Act 1973. Clause 23, as it stands, leaves it open, as I understand it, to the Secretary of State by appointments to this commission without consultation to defeat this principle of parity if the membership, excluding the chairman, is enlarged beyond 10 to 16.
On this process of enlargement on this very important commission, it appears that there would be no consultation required before the Secretary of State makes any further appointments beyond the 10 under the Act of 1973, and there is absolutely no machinery whatever to preserve parity. I accept that one wants more employer representatives, for the reasons given by my noble friend Lord Boyd-Carpenter, but I cannot understand why the principle of parity should be derogated. It is not merely a question of not understanding. It is the settled wish that there should be continued co-operation between the trade unions and the employers, so essential to this vital new dimension of employment and training as envisaged by this Act. Therefore, speaking only for myself, while I am relieved that the noble Baroness put down this amendment to afford a vehicle for an exchange of view, as I have indicated, I cannot vote for it because I take the view that the functions are so important that there should be full voting rights, not merely advisory rights.
There has been a history of problems—and Members of the Committee should know it—in the past where the trade union council at one stage was minded not to co-operate under the old Act and it was only by virtue of certain very responsible unions (I need not name them) that co-operation was retained, regained and preserved. Is it not more important that we should go forward, so far as we can, in a form of partnership, a joint venture in training and in employment, rather than that we should give the impression to trade union members that they are to be to some degree at a disadvantage? Many of these trade union members vote Conservative. More—it is true—vote Labour. Some vote for other political parties. Some do not vote. But how they vote, or whether they vote, we, and any
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government, assuredly will require their co-operation in the years to come.
This is merely a plea to the Minister to entertain the principle which could be derogated from to the danger of future advance, although, as I have said quite frankly, I shall not support this amendment.
Lord Dean of Beswick: I was not going to speak to this amendment, but perhaps I may correct one point put forward by the noble Lord, Lord Boyd-Carpenter. I do not think that I am putting his words perfectly accurately, but he inferred that the final total responsibility for training rests with the employer. To anyone who has spent a lifetime in a skilled industry training apprentices nothing could be further from the truth. If one is training youths and girls in skills—and I am talking about skills, not semi-skills, and much of this will be skilled techniques in the new industries—they can be trained only by people who have those skills. They can be trained only on a widening basis.
During a long time spent as a skilled engineer in factories in a variety of jobs, I was able to help train apprentices under agreements with the trade unions. There is no point is saying that because the employer owns the factory he can go ahead with training schemes, and that whatever he says will count. It just does not work like that. Other than finding the time and resources, the employer is not—and I repeat, not—the teacher. In most cases it will be the man in the overalls. If it is in engineering, he may be a turner, a miller, a fitter, a blacksmith or someone like that, who will convey his skills and will train the emerging generation.
Lord Boyd-Carpenter: Will the noble Lord allow me to intervene? The point that I was trying to make was this—and if I failed to make it clearly I apologise to Members of the Committee. The employer is, in the first place, in a position to know what skills are likely to be required in future years. He is in a position to know therefore not merely that people require to be trained, but how many of those trained in particular skills will be taken up in employment. That is the point. I did not say that he had sole knowledge. The noble Lord misunderstood. I said that he had a major responsibility; and I stick to that.
Lord Dean of Beswick: I accept fully what the noble Lord, Lord Boyd-Carpenter, has said, but I do not think that the two facets of his argument alter the basis of the argument one iota. Though the employers' representatives might have a crystal ball to see what future requirements are, when they have decided how many apprentices a trade will require for the next few years everything comes back to square one, where the men on the shop floor at various levels will be mostly in charge of training these lads.
I worked in a factory that at one time employed 25,000 of whom the greater percentage were mainly skilled people. Within that factory was a very fine fully managed training school. It became part of a rationalisation programme and the new employer thought that it was not worth keeping the school open, so that part of the training fell by the wayside. Training had to take second place. I stress once again that training took place with the tools of the trade on the job. It is because of proper training methods that

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is some industries young men of 20 and 21 are almost at their peak of production; they have been trained properly, by skilled men on the job, in full knowledge and cognisance of the trade union movement.
When talking about trade unions some Members of the Committee may sometimes assume that unions make a blanket approach to everything. But that is the last approach of trade unionism and its application, because most trade union agreements are dealt with at factory level. Very often trade union officials will make decisions on training and try to impose them in a particular factory. It is possible that the people in the factory will not accept them; however they have to be carried into effect.
I feel that it is dangerous to assume we can continue in this fashion and diminish the role of the trade union movement in such a vital area as this. Today, the CBI is on record as saying that there is a shortage of skilled men and women in certain jobs. Is that any wonder when for nearly a decade some industries, I repeat the word "some", have been unnecessarily savaged in the view of some of us? We have lost a generation of seed corn in this country.
As I said, I am a skilled engineer. When I left engineering to become a Member of Parliament in 1974 there were nearly half a million apprentices in training, from school leaving age until they emerged as skilled men. Today, there is a less than 30 per cent. intake of skilled engineers, and that has been so for the last 10 years. We are wondering why there is now a shortage of skilled people. I am concerned mainly about skilled engineers and I understand now that in some parts of the country there is a crying need for them.
If the Government are really serious and want to make up some of the leeway that has been tragically lost, unless they give the trade unions a full role to play—and that will be seen only as a diminishing one—we may very well damage the schemes that we are hoping will be successful.
3.15 p.m.
Baroness Carnegy of Lour: I intervene briefly in this discussion because for a number of years I was a commissioner in the Manpower Services Commission, so I have immediate experience of how it has worked in the past and perhaps can imagine how it would work in the future under the Government's proposals.
Through the years of developing the employment and training measures that we now have, and of making the enormous and radical changes in training which the country needed, on the whole the commission has succeeded on behalf of the nation. However, its progress has at times been desperately slow. One of the reasons for that is that the composition of nine members (which included three TUC and three CBI members) and the balance of interest was such that many months were spent—for example, in getting off the ground the Youth Training Scheme, or the TVEI, which was the Manpower Services Commission initiative in schools or, indeed, the earlier adult programme—in discussion across the table between the CBI and the TUC about their interests, also between them and the Government about their interests, and sometimes about the
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combined interests of those two groups and the Government. After each meeting those two groups had to go away and talk to their parent bodies and return for another meeting.
This went on for months. In the meantime a whole year of YTS potential trainees lost the opportunity to be in the scheme. Many adults lost opportunities on the old schemes because they were delayed and the TVEI was held up. Indeed it was held up, although I do not think particularly under the auspices of the Trades Union Congress, by the teachers' unions. In my own area it was held up for so long that it has only just now started in the schools. This was not because individual members did not think that what was going on was a good idea, but because of the structure of the commission and what it was trying to do. I believe it was right to structure it like that at the time, but huge changes in understanding had to occur, and these were bound to take time.
Now we are in a different ball game. People now understand the YTS. We know that it will get better and better. It is already quite good, as many noble Lords have already said from their own experience. Its model is now being followed for adults by the other training scheme; this will bring all the other schemes together. All this is now accepted. What is now important is that the content of training should move fast enough for the changing needs of the nation.
Baroness Seear: The noble Baroness will agree, surely, that there is a grave danger that the new job training scheme efforts will not be accepted because of failure of trade union co-operation. The amendment is an attempt to stop the possible ruining of the new job training scheme.
Baroness Carnegy of Lour: I imagine that that is how we used to talk, but, quite honestly, I think that the nation now understands that it would be at the TUC's peril if it tried to hold up such an excellent scheme, when we can all see how well the youth training scheme has developed. I should not have thought that the TUC would want to do so. Nor would I hope that the TUC would want to withdraw from the commission, because it has an enormous and important contribution to make, as it has all along. What the noble Lord, Lord Dean, said was indeed true. The contribution of the trade unions to the development of training has been crucial.
Lord Dean of Beswick: I am glad that the noble Baroness has given way, and I appreciate that. But is she, and is the Committee, aware that the biggest crash training programme ever in the history of this country took place when the nation was in peril in 1940? Does the Committee recall that Winston Churchill sent for the trade union leaders and asked them to accept dilution and train quickly hundreds of thousands of engineers to produce on behalf of the country? We are now within an economic war, whether we want it or not. Does not the noble Baroness think that it might be better to proceed with goodwill rather than to introduce a measure such as this, which may have the opposite effect?
Baroness Carnegy of Lour: I should quickly like to complete my argument. Of course that is true and the

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unions understand it very well now, but we have to move quickly and it is clear that training has to be employer-led. Employers are paying for much of it. As my noble friend Lord Boyd-Carpenter said, they have the knowledge of what future skill requirements will be. It is not only the CBI that has it. In the past there has been the feeling among employers that as not everyone belongs to the CBI its position is not necessarily that of all employers, especially the smaller ones. They very much wanted other employer representatives and therefore I believe this to be an excellent arrangement for the new type of commission.
The TUC is there to advise, contribute and vote but the commission as a whole is employer-led and that situation would work. It would not work if the extra members were non-voting members. I do not believe that the TUC or the unions should feel that there is anything wrong with that. I believe that it will work, that it is right for the nation and that it should take place and therefore I shall oppose the amendment.
Lord Rochester: The noble Baroness says that it is for the employers to lead. However, does she not agree that the essence of leadership is that people should follow? Are not people more likely to follow—in this case trade unionists—if they are able to participate in the consultative and decision-making process?
Lord Carr of Hadley: I cannot support the amendment because I do not like the idea of advisory members and I believe that it would be wrong. However, I am unhappy about the Government's proposal. As Secretary of State for Employment at the beginning of the 1970s I had a considerable hand in the formulation of the idea of the Manpower Services Commission, although when it was implemented I had moved on elsewhere. I am sure that the idea of parity was central to its acceptance and its working, certainly far from perfectly but not too unsatisfactorily. I believe that to disturb that parity would be detrimental and not helpful.
I do not give much credence to the idea that there must be more employers to cover a wider range of skills. That would be equally true of the number of employee representatives because they are also involved. In response to the point made by my noble friend Lady Carnegy of Lour, I do not say that the CBI and the TUC should necessarily have a monopoly of representation. That may be another issue to examine.
I believe that to leave the matter as it is, except for upsetting the parity, would be an ill-guided action and I hope that the Government will give the matter further thought. I go so far as to say that if the Government consider that they cannot maintain that parity, it would be better to put that training within the Department of Employment, from whence it came, and to drop the idea of a commission. However, please do not do so without giving the matter a great deal of further thought.
The Earl of Dundee: This amendment concerns the operation of the Training Commission. Members of the Committee will know that this clause fulfils the
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Government's manifesto commitment to increase employer representation on the commission. This change reflects the new focus on training and retraining in the commission's work. Its effect would be to deny these members the right to make a full contribution to the work of the commission and to vote on commission business. Following the remarks of my noble friend Lord Boyd-Carpenter, I am sure that its contributions in an advisory capacity would still receive the blessings of the Almighty.
What is the justification for increasing the number of employers, as we propose? The Government firmly believe that employers have the primary responsibility for the provision of training. Naturally, they also believe that this should be reflected in the composition of the Training Commission—
Baroness Seear: Will the noble Earl say to whom he was referring when he said that it would have the blessing of the Almighty?
The Earl of Dundee: I was moving to half support the wishes of the noble Baroness because we believe that contributions in an advisory capacity are always most useful, particularly so when blessed by the Almighty. I concede the point made by my noble friend Lord Carr that there will not be parity between employers and others.
The noble Baronesses, Lady Turner and Lady Seear, and the noble Lord, Lord Dean, expressed concern that the effect of the measures would be detrimental to trade union representation. There will be a continuing role for trade unionists, local authorities, educationists and others on the commission and its advisory bodies. However, the central responsibility for training must lie with employers. It is they who create the demand for skilled labour, it is they who are the customers for such skills, and it is they who are best placed to assess their training requirements.
One consequence of this is that it is important that the new commissioners should be able to contribute fully and effectively to the work of the commission. By this I do not mean that the contribution of employers should be to the exclusion of the contributions of others, merely that it is important that the new commissioners are able to vote should that ever prove necessary. A further consequence of the argument I have outlined is that since employers have the major responsibility for training they should also be the majority on the Training Commission.
The noble Baronesses, Lady Turner and Lady Seear, and my noble friend Lord Campbell expressed concern about the effect that the clause may have on the commission's decision-making process. The operation of the commission is a matter for the commission to decide upon. I see no reason why it should not continue to operate through consensus. In that context I was interested to hear the remarks of my noble friend Lady Carnegy. However, whatever its chosen style, the fact remains that we believe that employers should have a greater say in that process and that all the commissioners should, as at present, have full voting rights should they need them.
I should like to deal with the overall effect of our proposals on the commission. If the number of

913
employers were to be increased in an indiscriminate way I should partially accept the argument put forward by the noble Baroness, Lady Seear, that that would not necessarily be helpful. I believe that the new commission will be a more effective commission. The appointment of more employer commissioners is an opportunity to bring in members from a broader spectrum of industry, particularly from those sectors where employment growth has been fastest; for example, the new technology industries, tourism and leisure services, retailing and distribution, banking, insurance and financial services and small firms.
Our concern is to develop a training strategy able to meet the needs of contemporary industry and provide individuals with the skills they need to play an active and rewarding part in society. To meet this challenge the commission will need to draw on the skills and experience of our traditional industries and the enterprising spirit and innovative flair shown by the newer sectors. Clause 23 will allow the commission to do this in the most direct and sensible way. For those reasons I have to say that I am unable to accept this amendment.
Lord Wedderburn of Charlton: We on these Benches should like to clarify one matter. Is it the case that the pleas put forward to the Government spokesman by his noble friends for maintaining the position of parity—which is the solution that we prefer even to our own amendment— fall on deaf ears and that there is no prospect of the Government rethinking the matter?
The Earl of Dundee: I should not like to say to the noble Lord that his pleas, or those of other Members of the Committee, fall on deaf ears because our ears are always open. I hope that we always respond in a constructive manner to everything that is said. Nevertheless, I confirm that our decision is not to have parity, as he has outlined.
Baroness Turner of Camden: I am disappointed with the Minister's response to what we on these Benches considered to be an extremely reasonable amendment. As my noble friend Lord Wedderburn has said, we should prefer parity and that is our starting point. However, we tabled the amendment in an attempt to come to terms with what the Government have said in another place. In effect, they said that they felt that more employers were required because they were mostly concerned with training and the kind of training that was provided was down to them. We did not altogether agree with that but we tried to meet that point of view by suggesting that the employer should have an advisory role and in that way, as we saw it, maintain the balance as regards trade union input on the commission.
I am very sorry to hear from the noble Baroness, Lady Carnegy, that she believes that the presence of the TUC was not all that helpful when it came to the YTS. In fact, the trade union commissioners on the commission at that time were anxious to ensure that the YTS scheme that eventually emerged was the kind of scheme which would carry conviction with the mass of the membership. We have to ensure that people understand what is being done at local level as well as having agreement at national level.
3.30 p.m.
Lord Dean of Beswick: Perhaps my noble friend would give way. Is it not a fact that some of the most successful schemes have only proceeded on a substantial basis where trade union leaders have consulted with their members and have been able to ensure that their members accept a reduction in the agreed training periods—from five to three years in some industries—which has increased the employment of youngsters in those industries fairly dramatically? Indeed, the electricity industry is a prime example. Is it not a fact that the kind of action on which the Government are insisting may jeopardise the situation in other industries?
Baroness Turner of Camden: I thank my noble friend for that intervention. He is quite right and it simply emphasises what we have said on these Benches; namely, that trade union co-operation and input into training are very important indeed if these schemes are to proceed, and everybody hopes that they will do so.
Baroness Carnegy of Lour: Perhaps I may just interrupt the noble Baroness. I was not suggesting that the TUC input was not altogether helpful. I was chairman of the committee for Scotland for several years and the TUC input was enormously helpful. I was merely pointing out the pragmatic fact that the structure of the commission, with three CBI and three TUC members—which had been the vision of my noble friend Lord Carr and subsequently was the way in which the commission was set up—held matters up and made them painfully slow. However, that was not in any way a criticism of the trade union members in their relationship to YTS.
Baroness Turner of Camden: I am grateful to the noble Baroness. To return to the arguments about parity, I was glad to learn that noble Lords on the opposite side—the noble Lords, Lord Carr, and Lord Campbell of Alloway—seem to be arguing in favour of parity. Moreover, during the course of the discussions this afternoon, it seems that there is a view in your Lordships' Committee that the whole idea of parity should be reconsidered by the Government, even though the Minister said that the Government are not prepared to do that. Therefore, although it had been our intention to divide on this amendment if we did not receive a reasonable response from the Minister, we now intend to seek to divide the Committee on the Question whether clause stand part, which I believe we can do if that emerges as a result of the discussions in Committee. It seems to us that this has clearly emerged during the discussions on this amendment in Committee. Therefore, while we are not asking the Committee to divide on this amendment, we shall ask it to divide on the Question whether clause stand part. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.34 p.m.
On Question, Whether Clause 23 shall stand part of the Bill?
Their Lordships divided: Contents, 112; Not-Contents, 72

DIVISION NO. 1

CONTENTS

Ailesbury, M

Kitchener, E.

Allerton, L.

Lane-Fox, B.

Ampthill, L.

Lauderdale, E.

Arran, E.

Layton, L.

Auckland, L.

Long, V.

Bagot, L.

Lothian, M.

Bauer, L.

Luke, L.

Beaverbrook, L.

Lurgan, L.

Belhaven and Stenton, L.

Mackay of Clashfern, L.

Belstead, L.

Macleod of Borve, B.

Bessborough, E.

Manton, L.

Blatch, B.

Marley, L.

Blyth, L.

Merrivale, L.

Boyd-Carpenter, L.

Mersey, V.

Brabazon of Tara, L.

Morris, L.

Brougham and Vaux, L.

Mowbray and Stourton, L.

Butterworth, L.

Munster, E.

Cameron of Lochbroom, L.

Nelson, E.

Campbell of Croy, L.

Norfolk, D.

Carlisle of Bucklow, L.

Nugent of Guildford, L.

Carnegy of Lour, B.

Onslow, E.

Cawley, L.

Orkney, E.

Colnbrook, L.

Orr-Ewing, L.

Colville of Culross, V.

Porritt, L.

Constantine of Stanmore, L.

Pym, L.

Cornwallis, L.

Rankeillour, L.

Cottesloe, L.

Reilly, L.

Cowley, E.

Renton, L.

Cullen of Ashbourne, L.

Richardson, L.

Davidson, V. [Teller.]

Rodney, L.

Denham, L. [Teller.]

Romney, E.

Digby, L.

Rugby, L.

Dundee, E.

St. Davids, V.

Ebbisham, L.

St. John of Fawsley, L.

Eden of Winton, L.

Saltoun of Abernethy, Ly.

Ellenborough, L.

Sanderson of Bowden, L.

Elliott of Morpeth, L.

Sandford, L.

Fraser of Kilmorack, L.

Seebohm, L.

Gormanston, V.

Selborne, E.

Grantchester, L.

Semphill, Ly.

Gray of Contin, L.

Shannon, E.

Hailsham of Saint Marylebone, L.

Sharples, B.

Shaughnessy, L.

Harmar-Nicholls, L.

Simon of Glaisdale, L.

Harvington, L.

Skelmersdale, L.

Hayter, L.

Slim, V.

Hemphill, L.

Strange, B.

Hesketh, L.

Strathcona and Mount Royal, L.

Home of the Hirsel, L.

Hood, V.

Strathspey, L.

Hooper, B.

Terrington, L.

Hylton-Foster, B.

Teviot, L.

Kaberry of Adel, L.

Thorneycroft, L.

Killearn, L.

Trefgarne, L.

Kimball, L.

Trumpington, B.

Kinloss, Ly.

Vaux of Harrowden, L.

Kinnoull, E.

Wolfson, L.

NOT-CONTENTS

Ardwick, L.

Donaldson of Kingsbridge, L.

Attlee, E.

Dormand of Easington, L.

Aylestone, L.

Dowding, L.

Banks, L.

Dudley, B.

Basnett, L.

Elwyn-Jones, L.

Boston of Faversham, L.

Ennals, L.

Bottomley, L.

Ewart-Biggs, B.

Briginshaw, L.

Falkland, V.

Bruce of Donington, L.

Fitt, L.

Callaghan of Cardiff, L.

Gallacher, L.

Carmichael of Kelvingrove, L.

Galpern, L.

Cledwyn of Penrhos, L.

Graham of Edmonton, L.

David, B.

Hampton, L.

Davies of Penrhys, L.

Hanworth, V.

Dean of Beswick, L.

Harris of Greenwich, L.

Diamond, L.

Hughes, L.

916

Irvine of Lairg, L.

Rochester, L.

Jacques, L.

Sainsbury, L.

Jay, L.

Seear, B.

Jenkins of Hillhead, L.

Serota, B.

Kearton, L.

Shepherd, L.

Leatherland, L.

Somers, L.

Llewelyn-Davies of Hastoe, B.

Stallard, L.

Longford, E.

Stewart of Fulham, L.

McCarthy, L.

Strabolgi, L.

McGregor of Durris, L.

Taylor of Blackburn, L.

McNair, L.

Taylor of Mansfield, L.

Mayhew, L.

Turner of Camden, B.

Mulley, L.

Underhill, L.

Nicol, B. [Teller.]

Wallace of Coslany, L.

Oram, L.

Walston, L.

Peston, L.

Wedderburn of Charlton, L

Phillips, B.

White, B.

Pitt of Hampstead, L.

Wigoder, L.

Ponsonby of Shulbrede, L. [Teller.]

Williams of Elvel, L.

Wilson of Rievaulx, L.

Ritchie of Dundee, L.

Resolved in the affirmative, and clause agreed to accordingly.
Clause 24 [Functions of the Secretary of State and of the Commission]:
3.42 p.m.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No 120ZB:
Page 24, line 35, after ("appropriate") insert ("in consultation with the Commission")
The noble Baroness said: The clause as it stands gives the Secretary of State very sweeping powers indeed. If the clause is passed unamended it will give the Secretary of State the power to make whatever arrangements,
"he considers appropriate for the purpose of assisting persons to select, train for, obtain and retain employment suitable for their ages and capacities".
Furthermore, the arrangements for which he is to have direct authority include temporary employment, encouraging increases in equal opportunities, payments by way of grant or loan, provision for allowances, and so on. It would seem that the Bill formally removes from the commission any independent power to control its own training programmes.
These changes have the effect of centralising power in the hands of the Secretary of State. I am not alone in believing that too great a concentration or centralisation of power is a bad thing. That view is held by many people nowadays and is being increasingly voiced.
There is little point in having a Training Commission unless it has some degree of independence. If we have a specialist body concerned with training, which most people believe to be necessary, why should not the Secretary of State have a duty to consult that body in the exercise of the very wide powers granted to him under the Bill? I cannot think of any possible objections to this reasonable amendment and I therefore commend it to the Committee. I beg to move.
Baroness Seear: Again, I should like to support this amendment. The whole idea of the establishment of the Manpower Services Commission, which was after all created by a previous Conservative Government,

917
was the need to bring in people working in that field—employers, trade unionists, and others—who had expert knowledge of training matters. Civil servants in the Department of Employment do not have that kind of expertise and that is one reason why the commission was set up. It is an extremely retrograde step to take away responsibility from a body which has done an extremely good job and which can draw on the support of people working in this sphere, and to hand it back to a government department.
Lord Simon of Glaisdale: The noble Baroness, Lady Turner, said that she could not see any reason for not accepting this amendment. I am conscious that in rising to speak I am making a purely technical objection. As the Committee will know, there are various canons of construction which act as a scheme of communication between Parliament, through its draftsmen, and the courts. One of those is frequently quoted in Latin by my noble and learned friend Lord Hailsham and I suspect that it would be quoted by the noble Lord, Lord Wedderburn, if he were in the Chamber. Roughly translated into English it means: "If Parliament specifies one particular thing it means to exclude others of the same sort of thing". By stating, that this shall be done,
"in consultation with the Commission",
if the matter ever came to be reviewed by the courts there is some reason to fear that the courts might say that Parliament intended that there should not be any other sort of consultation.
Reading through this clause, it strikes one immediately that one sort of consultation that the Minister will wish to conduct is with the Equal Opportunities Commission in relation to the employment of women. Therefore, whatever the general merits of this amendment it seems to me that there is a technical reason which the Committee should hesitate on before accepting the amendment.
Lord Campbell of Alloway: Briefly, such indeed would be the unintended effect in law of this amendment. There would be a severely limiting instruction. Bearing in mind that the Secretary of State,
"shall make such arrangements as he considers appropriate"
surely it is all but implicit that he would consult before he makes arrangements. He cannot make arrangements out of the air, so to speak. Is it not implicit also that he would consult with, of all bodies, the commission? Therefore, the amendment is not only open to the objection that it could have a limiting effect but that it would be slightly inconsistent with the way in which Clause 24(1) is drafted in mandatory form. I know that is not what the noble Baroness intended, but it would be very dangerous to accept this amendment.
Lord Trefgarne: I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for his intervention to which I believe the Committee will wish to attach considerable importance. The noble and learned Lord was supported by my almost equally learned friend sitting on my right, which adds a special force to what the noble and learned Lord said.
918
I was interested also to hear the intervention of the noble Baroness, Lady Seear, in support of the amendment. Indeed, I notice that the noble Baroness has attached her name to almost every amendment to the Bill tabled by the Opposition.
Baroness Seear: Not every amendment.
Lord Trefgarne: Perhaps not every amendment, but a great many tabled by the Opposition enjoy the support of the noble Baroness. Indeed, during earlier discussions on this Bill the noble Baroness spoke in support of Opposition amendments to which she had not specifically attached her name but with which she nonetheless found herself in agreement. Whether this comparatively new departure by the Liberal Party totally aligning itself with the views of the Opposition represents the result of the removal of Dr. David Owen as an inhibiting influence on the views of the noble Baroness, I cannot say. Nonetheless, she is of course entitled to express her views.
Baroness Seear: Would the noble Lord not waste the time of the Committee by discussing my relations with the Labour Party?
Lord Trefgarne: I think I am entitled to comment upon the speech of the noble Baroness speaking from the Liberal Front Bench in support of this amendment. If the noble Baroness wishes to avoid any comment upon what she says, then she has only to keep in her place.
Lord Harris of Greenwich: Would the noble Lord give way—
Lord Trefgarne: Are we going to reduce everything to this childish party-points scoring? The House of Commons does it rather better than this House. I am sorry if the noble Lord is so sensitive about criticism of his party's policy. This is a highly political measure. I recognise that it represents the embodiment of what this party thinks on these matters. The amendments tabled by the Opposition represent their view on the matter. They are entitled to express their views, and I am entitled to express mine. The noble Baroness is also entitled to express her views. I too am entitled to criticise the views that are offered in criticism of this Bill.
It may help if I explain that the adjustment of powers made by Clause 24 follows from the transfer from the Commission to the Secretary of State of Jobcentre activities so that the new Employment Service could be created. This new service combines the management of the Department of Employment's network of unemployment benefit offices with that of Jobcentres. Our aim is to create a service which can ensure that the unemployed have the best possible help to take up the expanding job opportunities on offer. Many of the unemployed have lost touch with the jobs market. While in the past they will have continued to attend benefit offices, their contact with Jobcentres has often been limited to the occasional scrutiny of the self-service displays. The new service will mean that it will be easier for Jobcentre staff to give help regularly and individually to the unemployed, particularly the longer-term unemployed.

919
Clause 24 gives the Secretary of State his own powers in the longer term to run the new Employment Service. The effect of this amendment would be to take that power away because it would prevent him from running the Employment Service except in consultation with the commission.
Concern has also been expressed that the commission should be consulted about training. As your Lordships will be aware, the commission is now able to focus its efforts on training following the formation of the new Employment Service. The adjustments made by Clause 24 should not in practice affect the work carried out now by the commission nor should it affect its relationship in practice with the Secretary of State. Paragraph 4 of Schedule 2 makes it clear that the commission shall continue to carry (out after the Bill comes into force) the same activities as at present. There is also formal provision in Clause 24 for dialogue between the commission and the Secretary of State.
There has always been a flow of information in both directions and an exchange of thoughts and ideas. I see no reason why that should stop. Section 2(4) of the 1973 Act as amended by the Bill provides for the Secretary of State to carry out his duty by authorising the commission to act on his behalf, which he can hardly do without agreement. We envisage this will be the way in which functions are normally delegated. Furthermore, Clause 24 provides in new Section 3(2) of the 1973 Act for the commission to continue to submit proposals to the Secretary of State from time to time in relation to its functions.
I hope in the light of that explanation, and in particular as regards the difficulties referred to by the noble and learned Lord, Lord Simon of Glaisdale, the noble Baroness will see fit to withdraw her amendment.
Baroness Phillips: Before my noble friend replies, perhaps I may seek clarification. I had the privilege of speaking at the Dispatch Box for five years. I was told that you speak for the Government or on this side you speak for the Opposition. If you wish to express your own views you go to the Back-Benches. Can we have clarification of what the noble Lord said at the outset? He said he was allowed to express his own point of view. Was he expressing his own personal point of view or was he expressing the views of Her Majesty's Government?
Lord Trefgarne: Happily, the two are coincident.
Lord Somers: Perhaps I may point out one matter to the noble Lord. Has it occurred to him that it is a great mistake to give absolute power into the hands of any one political official? I am not wishing to throw any disparagement on the Minister we have at present, but one must remember that one of the features of our much-vaunted democratic system is that Secretaries of State come and Secretaries of State go. It might be our misfortune to have quite the wrong man in that position. Therefore I believe it to be very much better that we should have some means by which his choice is kept in check.
Lord Trefgarne: It is a feature of our system to which the noble Lord rightly draws attention that Secretaries of State come and go. If the electorate so decides, the Secretary of State might become one of a different political persuasion. That is how the system works. The fact of the matter is that Parliament often provides powers to the Secretary of State. Naturally, the Bill now before the Committee has been drafted by the Government with a view to its provisions being implemented by this Secretary of State and his Conservative successors. I dare say and hope that that will continue for a long time.
Baroness Turner of Camden: Nothing that the Minister has said has set at rest my fears about the centralisation of power which I believe this Bill indicates. The comments that he made about delegation and about Jobcentres, and so on, still indicate that the Secretary of State will have a very substantial concentration of power if the Bill goes through unamended. It is not my intention this afternoon to press this amendment. That is not because of what the Minister had to say, but because of the comments made by the noble and learned Lord, Lord Simon of Glaisdale. He pointed out an unlooked-for result of the wording of this amendment which could mean that consultation with other bodies such as the Equal Opportunities Commission would be ruled out if we simply specify by way of amendment that there should be consultation with the Training Commission. That is not what we had intended in putting down the amendment; and that is what other noble Lords understood who spoke to this amendment.
I regard the comments of the Minister as entirely unsatisfactory because he has not dealt in any way with the comments made by the noble Baroness, Lady Seear, about the Training Commission and the wealth of expertise that is available through the commission. Neither has the Minister dealt with any of the the comments or criticisms that have been made about the over-concentration of power in the hands of the Secretary of State. Even so, we shall not press the amendment at this point in time. I beg leave to withdraw it. However, we may look at the matter again on Report.
The Deputy Chairman of Committees (Lord Nugent of Guildford): Is it the pleasure of the Committee that this amendment be withdrawn?
Lord Trefgarne: No.
The Deputy Chairman of Committees: The Question before the Committee is that this amendment be agreed to.
On Question, amendment negatived.
4 p.m.
Baroness Seear Baroness Seear moved Amendment No. 120A:
Page 24, line 39, at end insert—
("(2) All arrangements made under this section shall make suitable provision for disabled people.").
The noble Baroness said: This amendment is tabled in order to make certain that the care taken by the Manpower Services Commission to make special

921
provision for disabled people shall be incorporated into the new legislation. I have no doubt that the Minister will tell us that this is already adequately covered. We do not accept that that is so and we want to make absolutely certain that it will happen. I beg to move.
Lord Renton: I too am anxious that the commission should have a responsibility with regard to the training and employment of disabled people, including the mentally handicapped who are the largest group of disabled people in this country. I join the noble Baroness, Lady Seear, in reading the Bill as containing no reference whatever to disabled people. Perhaps there is some hidden reference which a superficial reading of the Bill does not reveal. If that is so we should be told what it is, but I doubt whether there is one. If no responsibility of this kind is placed upon the newly formed Training Commission perhaps some other statutory body will have the responsibility. However, I do not know of one.
Having said that, and bearing in mind that the noble Baroness presented the amendment in a somewhat probing manner, I do not think that it is in the right place in the clause. Instead of being a new subsection (2) of new Section 2 of the 1973 Act it should become subsection (3). It would be better that way. In addition, I should have preferred it to read,
"shall make provision for training and employment of disabled people who are unemployed".
That is the intention. I do not think that the word "suitable" is necessary or, if I may say so, suitable at that point. I hope that we shall have a reasoned and sympathetic reply from my noble friend.
Lord Campbell of Alloway: I support the amendment and wish also to adopt the type of formula put forward by my noble friend Lord Renton as to the wording. "Suitable" raises problems in relation to the wording of new Section 2(1):
"The Secretary of State shall make such arrangements as he considers appropriate".
Then we have "suitable" and it does not marry too well as a matter of drafting.
Secondly, and subject to correction, I do not think that the Committee will find anything about the disabled in this Bill and, indeed, would not expect to do so in Part II because Clause 24 amends the 1973 Act. In the 1973 Act there is no express reference to the disabled. However, we have developed so much in our care for the disabled since 1973 that the point is valid today. I am grateful to the noble Baroness for bringing forward the amendment.
I agree with my noble friend that the amendment is in the wrong place. I think it should go in Clause 25 where it deals with statutory instruments. However, I do not want to detain the Committee and I am fully content to leave it to the Minister and his advisers to decide where it should go. My only concern is that if possible we should have the sympathy of my noble friend for the principle of the matter.
Lord Basnett: I support the amendment and await with interest the contribution of the Minister. However, I should like to say a few words in support
922
of the amendment because it is important to those with disabilities. During the Second Reading debate I drew attention to the fact that Part II of the Employment Bill will establish a commission with responsibility to provide vocational training. I said:
"There is no direct requirement in the Bill for the Training Commission to provide any special services to disabled people".—[Official Report, 22/2/88; col. 958.]
I suggested that that was an omission and would need to be repaired at this stage. I was supported in this view by the noble Lord, Lord Boyd-Carpenter, who on the same day at col. 960 said:
"I hope and believe that the Training Commission will have provision for the training of disabled persons. If there is any omission in that respect I very much hope that my noble friend will deal with it".
There is such an omission.
The Government may argue that the Secretary of State already has a general duty to make provision for disabled people. In that case the amendment would emphasise that commitment and restate existing government policy. However, there is a far more important reason for the amendment. It would remind those who formulate policy that disabled people's needs must be taken into account when existing schemes are evaluated and any new schemes are designed. Recent experience has emphasised the need for this.
In the recent past the Manpower Services Commission's schemes, such as YTS, have failed initially to take account of the particular requirements of disabled people. Pressure from organisations such as RADAR, the Spastics Society and the Royal National Institute for the Blind have brought about improvements. This has taken some time and has meant that disabled people have had to wait until schemes have been modified. During the interim period they have missed out on their fair share of training opportunities. This amendment would ensure that such oversights were avoided in the future.
The amendment has a real not merely a presentational appearance. It has the same real purpose as a similar clause already contained in the Bill in respect of women and girls. I do not need to remind the Committee of the disadvantaged position of the disabled in the labour market. I am sure that all noble Lords will support any action to provide wider training for this purpose. This amendment is widely supported. It offends no principle and subverts no purpose of the Bill. It helps and is seen to help the disabled. When the Minister replies I hope that he will accept the purpose of the amendment.
Baroness Carnegy of Lour: I do not know the extent to which the noble Lord, Lord Basnett, has looked at what the Manpower Services Commission has been doing for the disabled over the past few years but it is widely admired all over Europe. The working up of schemes of the Manpower Services Commission took time for everybody and took time for the disabled. The noble Lord was quite right about that.
Various bodies have assisted the Manpower Services Commission through the years to develop those schemes. They are now absolutely magnificent. When I looked at the Bill I thought that it was the glory of the Manpower Services Commission that it

923
does not have to keep saying that everything is different for the disabled. Its responsibilities include people with every kind of disability so long as they can take part in the scheme. Its responsibilities in training generally can apply to anybody. That is why I thought it was not mentioned. I look forward to my noble friend's reply to make sure that that is in fact so and that it is merely a continuation of the present situation. If there is any difference of course the amendment is necessary; but, if there is not, I suggest that it is not.
Lord Renton: If my noble friend would allow me, I should like to ask her whether she is suggesting that the Manpower Services Commission was doing all this great work without being placed under any expressed statutory responsibility to do so?
Baroness Carnegy of Lour: I am bound to confess that I cannot remember the precise wording of the Act on the subject. All I know is that the services and the training are now there and—it is not as my noble friend suggested—we are not merely talking about unemployed young people, we are talking about people with disabilities in training for work on the YTS. We are talking about the whole range of training and opportunities which will help people obtain employment.
Lady Kinloss: I support the amendment. The Bill pledges to encourage the participation of women and girls in the scheme. In that case, why can we not take this opportunity to demonstrate a similar commitment to make suitable provision for disabled people? In the past, special employment measures and training schemes have provided the few avenues through which disabled people have been able to obtain employment. In building for sound employment prospects in the future, the best practices from old schemes need to be carried forward into the new programme. The amendment argues for participation, not exemption, and gives legislative backing to attempts to make provision for disabled people.
Lord Trefgarne: I was hoping to intervene when most Members of the Committee had expressed their views so that I could perhaps respond to all of them at the same time.
Lord Allen of Abbeydale: I should like to say a few additional words from the Cross Benches, to emphasise the point that this is not a suggestion involving just the party politicians. As I understand it, present practice and the proposed arrangements take into account the needs of the disabled. Therefore, the acceptance of this amendment would not mean changes in what is at present being done and what is proposed, despite the points that have been made earlier in the debate. However, to put it at its lowest, I believe it would be an important gesture to give statutory backing to this provision. It would have the practical effect of ensuring that future programmes were bound to take account of such a requirement.
Sadly, I must say, be it fair or unfair, that there are many disabled people who have some doubts as to
924
whether the Government really understand their position and their needs. However, this is not the occasion to discuss the view taken in another place regarding the amendment about disabled people passed in this Chamber on the Local Government Bill; but it is relevant to the extent that that decision, and the reasons given for it by the Government, will not do anything to diminish those doubts. It seems to me that here we offer a chance—whether it is in the right place or has the right phraseology, is a matter for discussion—for the Government to show that they care.
Lord Trefgarne: I fully appreciate the good intentions behind the amendment but I assure noble Lords that the duty on the Secretary of State, under Clause 24, clearly includes a requirement to make provision for the disabled. This provision also allows him to make special arrangements for this group of people to take account of their particular needs and problems.
The duty to make appropriate arrangements to assist persons to:
"select, train for, obtain and retain employment suitable for their.… capacities"
was placed upon the MSC when it was established under the Employment and Training Act 1973. This gave the commission the power to run specialised services for the disabled, incorporating other powers in the Disabled Persons (Employment) Act 1944. There is no change in the nature of the Secretary of State's powers and duties towards disabled people in the Bill. That same duty is transferred to the Secretary of State in Clause 24 of the Bill and will apply to the commission whenever the Secretary of State delegates his powers to it. A power is also retained in the Disabled Persons (Employment) Act 1944 to run specialised services for the disabled, such as sheltered employment.
I turn to the point made by the noble Lady, Lady Kinloss, when she referred to the parallel between women and girls on the one hand and disabled people on the other, given that women and girls are indeed mentioned. That provision emerges from Section 2(2)(b) of the Employment and Training Act 1973, which relates to women and girls, and is reproduced in the Bill in the new Section 2. This provision, which was inserted in this Chamber during Committee stage in 1973, is purely presentational and simply states a specific power already included in the general power of Section 2(1).
Noble Lords have argued that we should also make specific provision for the disabled along the same lines. But if we were to list all the specific applications of the general duty in Section 2(1), it would be a very long list. It may indeed arise because of the difficulty referred to by the noble and learned Lord, Lord Simon of Glaisdale, when he spoke to an earlier amendment; namely, that by reciting a list of specific powers you then exclude those that are not mentioned. I am sure that that is not what members of the Committee have in mind. However I am—
4.15 p.m.
Baroness Seear: Does the Minister agree that, by including women and girls, he has already offended in that way?
Lord Trefgarne: I was in fact just saying that that particular amendment was inserted in the 1973 legislation by this Chamber and, as I understand it, against the advice of the Government on that occasion. That is why I was able to say that I believe it was thought unnecessary at that time by the Government.
Lord McCarthy: Can the Minister say whether it has done any harm?
Lord Trefgarne: No, I do not suppose that it has done any harm. However, if the noble Lord will allow me to continue he may be reassured by what I have to say. For the reasons that I have given. I have already explained why I do not think that the amendment is necessary. But, having said that, I understand that your Lordships have strong views on the issue, as was evidenced by the speeches made on the previous Bill to which the noble Lord, Lord Allen of Abbeydale, referred. In the circumstances, I undertake to have another look at the wording of this passage to see whether it is possible to underline and clarify beyond peradventure the Government's intentions in the matter.
I should stress that I am not making a formal commitment to bring forward another amendment, because I may, after taking advice, find that that course is not necessary. However, I undertake to look again at the matter, and if the noble Baroness will withdraw her amendment perhaps she and I can be in touch between now and the next stage of the Bill's proceedings to see whether there is a way to underline and clarify the Government's intentions.
Baroness Seear: Coming from the noble Lord, that offer is most gracious indeed. I shall therefore be extremely glad to withdraw the amendment on those conditions.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 120B:
Page 25, line 26, at end insert ("and such an allowance shall be paid unless such facilities are reasonably suitable to his capacities, aptitudes and requirements, and are of reasonable overall quality").
The noble Baroness said: The Bill makes provision for young people to be paid a bridging allowance, for a maximum of eight weeks in any one year, to tide them over while attempts are made to find them a training place. It has repeatedly been stated by Ministers that everyone will have a place. However, there are problems with that approach, and those are basically the reasons for the amendment which I move.
First, the mere promise of a YTS offer does not take sufficient account of the need to provide suitable training for young people; suitable in terms of their own capacities and aspirations and suitable in terms of the needs of the economy as a whole. Secondly, the absolute nature of the Government's determination to withdraw the bridging allowance after eight weeks could result in young people being left without any financial support. With such benefit entitlement withdrawn young people will lose an imporant element of choice in post-school life.
At present, the quality of training on offer is generally agreed to be patchy. The MSC itself admits that fact and agrees that by international standards our schemes are not good ones. One hopes of course that standards will improve, but in the meantime there would appear to be a paucity of options for young people looking for suitable training. There is the further criticism that, despite all the emphasis given by everyone to equal opportunities, the YTS does not yet pay sufficient attention to job training for female trainees in non-traditional areas; 92 per cent. of female YTS trainees are engaged in the caring and personal services sector; and only 3·5 per cent. in mechanical engineering, for example. So, what about choices in non-traditional areas for young women?
There is genuine concern that choice will be inhibited by the Bill's provisions. The scheme cannot be deemed suitable if unwilling trainees are forced into it by lack of financial support. The worry is that young people will not be offered or find suitable training.
Despite government claims that there are enough places on YTS, doubts about that still exist. At Christmas 1987, some 2,305 young people were still waiting to receive the offer of a YTS place. There are special problems in rural areas. The MSC sponsored a review entitled YTS in rural areas, and identified transport and travel as a most serious problem. In some cases, trainees have to make round trips of between 80 and 100 miles to complete the off-job content of their programme. Such young people often have a long wait for a place through no fault of their own. There would also appear to be continuing problems for young black people in the inner cities. The Government have committed themselves to find YTS places for every unemployed 16- and 17-year old within four months of their leaving school or two months of leaving YTS or a job. That is a welcome commitment, but there is no safety net for young people if that cannot be achieved. Nor is there any attempt made in the Bill to ensure that places offered to them, will be suitable. The amendment seeks to do both those things. I therefore commend it to the Committee. I beg to move.
Baroness Seear: I support the amendment, but not for the reasons that the Minister implied previously. Employers do not want conscript trainees. Those who have been involved in running a training course know that anyone who is there against his or her will is an extremely disruptive element. It is highly undesirable that people should be pushed into training programmes in which they do not wish to participate.
The noble Baroness, Lady Turner, referred to the position of girls. In the areas with which I am especially concerned, we have a concentration of ethnic minorities. They have complained forcefully, rightly or wrongly, that they obtain the least favourable youth training scheme opportunities—those at the bottom of the pile.
If we are honest, we know that although the YTS has improved a great deal, some of the training is still not of the kind that we could say is up to the quality that we want. We are all working hard to get it up to that quality, but until that stage is reached it is highly undesirable that people should be forced into

927
training programmes which are not good and which they do not wish to enter. In that respect, I hope that the Government will reconsider the amendment.
Lord Campbell of Alloway: I oppose the amendment. It is wrong to have a mandatory provision of a financial nature such as this in this clause of the Bill. Surely that is contrary to the spirit of the drafting of the clause. I can see no justification for it.
Baroness Phillips: There is a provision which already refers to payment. It would seem to include the element that needs to be covered by an amendment of this kind. It provides:
"shall not include the payment of any such allowance to a person—

(i) for any period after that person has attained the age of eighteen years; or

(ii) for any period for which child benefit is payable in respect of that person;"

As I understand it, there could be a lapse of a year. There is a difference between the end of child benefit payment and the beginning of the period which is referred to. That is why an amendment of this kind which makes no such reference would be useful.
Lord Campbell of Alloway: But there is no mandatory requirement as to payment in subsection (3)(a). The amendment imports a mandatory requirement.
Lord Boyd-Carpenter: On a separate point, I question one word in the amendment. I see the argument that the facilities should be reasonably suitable to the capacities and attitudes of the person concerned and of reasonable overall quality. The word which I think calls for some explanation is "requirements". As I understand it, the word "requirements" puts the decision in the hands of the young person concerned, who could, if he or she felt so inclined, say, "Oh well, I require training in some speciality such as an astronaut or pop singer or something exciting," but which is not a heavily populated occupation.
The amendment goes too far. I shall be interested to hear in what sense the word "requirements" is used. As it stands at the moment, and as far as I understand it at the moment, that word is a great weakness in the amendment.
Lord Trefgarne: I believe that the noble Baroness is concerned that the opportunities offered to young people may not be suitable and that because of the time limits which are proposed on the payment of the YTS bridging allowance young people may be coerced into accepting unsuitable places of, perhaps, dubious quality. I cannot accept that proposition. The extension of the child benefit period for three months for Easter and Christmas school leavers and four months for summer school leavers provides ample opportunity for young people to consider all the options available to them.The bridging allowance is available for nearly two months and this time should be more than adequate to match an individual with a suitable YTS place. I recognise that in some instances there may be special needs to take account of and that is why there will be no time limit imposed
928
on the payment of the bridging allowance to registered disabled young people.
If it is suggested that eight weeks in not a sufficient period of time for young people to find a suitable YTS place, I suggest that it represents a reasonable period of time for a person who has been in work or on YTS to look around for a new job or to take up the offer of a new place on the YTS programme. We guarantee a YTS place within this period and there should therefore be no question of young people being left without support. We shall, of course, want to keep all aspects of the YTS, including this one, under review.
I could speak at greater length about the guarantee, but I hope that what I have said will persuade the noble Baroness not to press her amendment.
Baroness Turner of Camden: The amendment was concerned to ensure that a safety net was available if young people did not obtain places within the eight weeks. As I attempted to demonstrate when moving the amendment, it is by no means certain that eight weeks will be sufficient in a number of places. I mentioned rural areas. There are special problems for ethnic minorities, to which the noble Baroness, Lady Seear, referred.
I am glad that there is apparently to be no limit for registered disabled people. That is of course to be welcomed. I am also glad to learn that it is intended to keep the scheme under review. I shall not press the amendment to a Division at present, but I am not altogether happy that the Minister's reply adequately dealt with the arguments put from these Benches, especially as we feel that it is necessary to have some kind of safety net or fallback if it should transpire in certain places and in certain circumstances that no YTS places will be available for some young people despite the Government's intentions that there should be.
Nevertheless, in view of what has been said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.30 p.m.
Lord Rochester Lord Rochester moved Amendment No. 121:
Page 25, line 26, at end insert ("and the amount of any such allowance shall be—

(i) determined only after consultation with the Commission; and

(ii) reviewed annually; and

(iii) subject to approval by a resolution of each House of Parliament").

The noble Lord said: My understanding is that the Government's intention is that the amount of the bridging allowance should be set initially at £15 per week, and, as has been said, it will last for a maximum period of eight weeks. The first question which arises on this amendment is whether the amount and the length of time for which the allowance is to be paid are adequate, given that £15 is considerably below the level of supplementary benefit now payable and that it is questionable whether the Government will be able to fulfil their commitment to offer employment or training to young people or every young person within only eight weeks of leaving a scheme or losing a job.
To say the least, it remains to be seen whether the amount proposed for the allowance and the period envisaged for its payment will prove adequate. Nevertheless, it appears from subsection (3)(a) of Clause 24 that the amount of the allowance is to be determined by the Secretary of State alone and that, unlike payment of benefit, there is no requirement that it should be reviewed periodically or made subject to parliamentary approval.
I am bound to say that I see this as just one example of the excessive powers which the Secretary of State is to be accorded under Part II of the Bill. The purpose of this amendment is therefore to diminish those powers in this instance in three ways. First, before deciding on the amount of allowance to be paid the Secretary of State would be obliged to consult the body best qualified for the purpose; namely, the Training Commission. I suggest that the point made earlier by the noble and learned Lord, Lord Simon of Glaisdale, relating to other bodies—that is, bodies other than the Training Commission which might be consulted—has less application in this case. Secondly, if this amendment were agreed the amount would have to be reviewed at annual intervals. Thirdly, it would be subject to approval by a resolution of each House of Parliament.
The Minister will no doubt say in reply that the provisions of Clause 24 are not concerned with social security legislation but merely adjust powers already available to the executive under the Employment and Training Act 1973. He may further claim that the amount of the bridging allowance should not be made subject to parliamentary approval, both because payments made under the 1973 Act are not subject to scrutiny by the legislature and because the allowance is not technically a form of income support. He may even add that in any case the benefit upratings do not have to be approved by parliamentary resolution but are tabled in orders which can only be prayed against.
I am nevertheless moving this amendment for two reasons. First, it will give the Minister the opportunity to justify—if he can—both the amount and the period of payment now contemplated for the bridging allowance. However, I am doing so mainly because in my view the Government's proposals in this paragraph are a good example, as I said at Second Reading, of their reluctance to consult, their distaste for consensus and the excessive centralisation of their decision-making. I beg to move.
Lord Campbell of Alloway: I oppose the amendment. I wish to speak to the amendment as it stands and not, if the noble Lord, Lord Rochester, will forgive me, as he moved it, because I found that extremely difficult to follow. I should wish to do justice to what he said and to study it, but I could not follow the reasoned support for the amendment save for one point which went home. That was the desire to diminish the powers of the Secretary of State. That I understand and that I can speak to.
The noble Lord wishes to diminish the powers of the Secretary of State in three ways: first, so that the amount of the allowance shall be determined only
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after consultation with the commissioner. Far from reducing the impact of the observations of the noble and learned Lord, Lord Simon of Glaisdale, it heightens them by the use of the word "only". What will the courts make of that?
The second way to reduce the powers of the Secretary of State is to review annually. Annually may be too short a period; it may be too long; it may be unnecessary. One should seek to maintain, in this sphere of all spheres, a measure of flexibility. The amendment as it stands in sub-paragraph (ii) is far too rigid.
Thirdly and lastly, it says:
"subject to approval by a resolution of each House of Parliament".
It is not understood why the amount of the allowance should be subject to approval by Parliament or why Parliament should be concerned with the original determination or any review determination from time to time. Surely the Committee would agree on all sides that this would impose an unnecessary and unacceptable burden on both Houses of Parliament.
Lord Renton: I agree with what my noble friend said. I just add on the last point that requiring an affirmative resolution of each House of Parliament before, for example, an increase in payment could become valid and be made could cause delay, because there are occasions, especially when there is an election in the autumn, when Parliament may not be sitting between the end of July, let us say, and well into October. That could be a cause of hardship.
Lord Simon of Glaisdale: I intervened formerly with great reluctance because other Members of the Committee are experts on this matter, and I certainly am not. I intervened purely to draw attention to a legal technicality, but since what I said has been invoked again, perhaps I may say that I think that the noble Lord, Lord Rochester is right. With great respect, I do not think that the noble Lord, Lord Campbell of Alloway, is right.
It all turns on sub-paragraph (i):
"determined only after consultation with the Commission".
That does not exclude consultation with other bodies. The noble Lord, Lord Campbell, reads it as though it said:
"shall be determined after consultation only with the Commission".
but that is not what it says. As regards whether the technical points which I raised were false or valid, I do not think that in any way invalidates this amendment.
Baroness Turner of Camden: I rise to support the amendment from these Benches. I agree with much of what was said by the noble Lord, Lord Rochester. As regards the provision in sub-paragraph (iii), which reads:
"subject to approval by a resolution of each House of Parliament",
I do not understand the objection. It is my understanding that when there are increases in benefit generally through regulations, those regulations have to be laid before each House of Parliament. I see little difference between doing that in relation to increases in benefit and the procedure suggested in relation to a review of the allowance. It is essential that the allowance is kept under review

931
annually. As it presently stands it is far too modest. The amendment would ensure that it was subject to review in each House. I therefore commend the amendment.
Lord Boyd-Carpenter: I believe that the noble Baroness has misled herself on the procedure regarding other increases in benefits. She said quite rightly that the orders had to be laid before Parliament. But only in a very limited number of cases are they subject to the affirmative procedure which the amendment contemplates for the allowance. The vast majority—I speak from memory—are laid and they can be prayed against in either House if any noble Lord or Member of another place wishes to do so. That is a totally different procedure from the affirmative resolution.
That leads me to my second point. The procedure outlined in the amendment would be a slow and cumbrous one. First, the commission would have to be consulted; it would not necessarily be sitting at any particular time of year. There would be an annual review, a laying of the orders, and a further delay if Parliament was in recess or, if Parliament was sitting, for parliamentary time to deal with the matter. That seems to be an extraordinarily cumbrous way of proceeding.
Surely the better way, which is the more usual way in respect of a great many such provisions, is to leave the matter to the Minister, as the Bill proposes. If the Minister makes a decision which either House of Parliament does not like, either House then has perfectly good means of calling the Minister to account, asking him to explain and (certainly in the case of another place) voting against him. Surely that is a more straightforward, flexible and speedy method of dealing with the matter, rather than having a cumbrous set of manoeuvres.
Lord Renton: And it is more usual.
4.45 p.m.
Lord Trefgarne: Perhaps I may start by mentioning the guarantee of a YTS place to which the noble Lord, Lord Rochester, referred in his opening remarks. I believe that I can set aside the anxiety which was expressed about whether the MSC will be able to meet its guarantee to provide a YTS place for any 16 or 17 year-old who would otherwise be unemployed.
I say straightaway that the MSC is confident that it will meet the guarantee. The undertaking has not been given lightly. The new guarantee builds on a well-established track record. Over 99 per cent. of the guarantee group has been offered a suitable YTS place every year since 1983. Next year it will do better. There are currently over 100,000 vacant places in all parts of the country. We have provided the commission with the funds to enable it to create an additional 30,000 places this year. That will certainly ensure that all young people who want a YTS place will get one.
Turning specifically to the issues raised by the amendment, it is said that the commission ought to be consulted about the bridging allowance in the same way as it is consulted about the YTS allowance.
932
As the Committee is aware, we are always happy to receive the advice of the commission. But the level of the allowance must be a matter for the Government. The YTS bridging allowance is intended for people who are without a YTS place for a short time. It is a short-term allowance which will be paid by the Department of Employment to those who are committed to taking up a YTS place. It would therefore be inappropriate to consult the commission about its level.
It is argued that the bridging allowance is a form of income support and should therefore be subject to the affirmative resolution of both Houses. The argument is based on a misunderstanding of the new allowance. The YTS bridging allowance is not a form of income support and I suggest that it would be inappropriate for Parliament to review it as if it were. The bridging allowance is not intended to support young people over a long period of time. The guarantee of a YTS place for all unemployed people under 18 will mean that no one in that age group will be unemployed. We are providing a bridging allowance because we recognise that a YTS place will not always be immediately available when a young person leaves a job or a previous YTS place.
For those young people who are unable to take up a YTS place because of, for example, long-term sickness or severe disability, income support will continue. The allowance is a payment made under the powers contained in Section 2 of the Employment and Training Act 1973 as amended by Clause 24 of the Bill. No payments made under the powers of the 1973 Act are subject to such a requirement. I hope that in the light of those considerations and the difficulties referred to in other parts of the Committee the amendment will not be pressed.
Lord Rochester: I thank all Members of the Committee who have taken part in our exchange. I am particularly grateful to the noble and learned Lord, Lord Simon of Glaisdale, for his response to the remarks of the noble Lord, Lord Campbell. As the noble and learned Lord said, in effect the amendment does not say that the amount of the allowance should be determined after consultation with the commission alone; it says that it should be determined:
"only after consultation with the Commission".
The noble and learned Lord made that point better than I can, and I am happy to leave the matter there.
The second point made by the noble Lord, Lord Campbell, was that the suggestion in the amendment was that the amount of allowance should be reviewed annually. As regards that point, in putting the amendment down in that way it was my intention to suggest not that the amount of the allowance could not be reviewed more frequently than annually but that it should be subject to at least annual review.
The noble Lord, Lord Trefgarne, said that I had asserted the allowance was a form of income support. When he comes to study what I said in my opening remarks, he will see that I anticipated that the Government would deny that it is a form of income support. However, I see that there are procedural difficulties with the third element of the amendment which suggests that the amount of allowance should

933
be subject to approval by a resolution of each House of Parliament. As I said in moving the amendment, my intention was largely to draw the Government out by asking them to justify the amount of £15 which was initially set for the allowance and also justify the period of time over which it should be paid.
I am not altogether satisfied with the response to those two points. However, in the light of the discussion I do not propose to press the amendment. There are many other amendments with which we must deal. It is possible that I shall wish to return to at least part of the amendment at a later stage. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 24 shall stand part of the Bill?
Lord McCarthy: We gave notice that we wish to oppose that this clause stand part of the Bill because, as the noble Lord, Lord Rochester, rightly suggests, this is the takeover clause. This is the clause which most clearly exhibits the Government's distaste for consensus. This is the clause which buries the best of all the tripartite bodies, the Manpower Services Commission. What takes its place will no longer be able to formulate its own detailed policies within guidelines set down by the Government. As I see it, it will no longer he free to publish its own criticisms of Government policy as the Manpower Services Commission undoubtedly was, and sometimes did quite sharply. It will no longer be encouraged nor in any real sense will it be free to undertake its own research, produce its own figures and engage in a dialogue with the Government and with the country over manpower services in the name of its tripartite representatives.
This is a sorry day. The Manpower Services Commission was not created by a Labour Government; it was created by a previous Conservative Government. No Member of this House contributed more to the ideas behind the Manpower Services Commission than the noble Lord, Lord Carr, who unfortunately is not in his place.
We regard this as a very sorry day. In opposing this clause we ask the Government to give better reasons than any we have been given so far as to why this clause is necessary. So far as I know, the only time that this clause has been considered in any detail by the Government was when the Secretary of State made one of his rare interventions in another place to the Standing Committee on 26th January (cols. 709–714). He said that the clause was necessary to give the Secretary of State direct powers to run training and manpower services which were formerly the responsibility of the MSC. We know that. The clause says that. He said that only in this way could be fulfilled the new functions which were to be carried out by the Government and by the newly renamed body in relation to an expanded YTS and the new 600,000 place scheme for unemployed adults, and so on.
In my reading of his speech he did not say—indeed the Government have never said—why it is necessary for direct powers to be given to the Secretary of State
934
in this way. We have never been told, and I hope that we shall be told this evening, what was wrong with the operation of Sections 2 and 3 of the old Employment and Training Act 1973. For example, we have heard no allegations that the Manpower Services Commission under its series of distinguished chairmen has at any time sabotaged the Government's manpower policy or that it failed to fulfil any objectives or directions given to it by the Secretary of State.
We know, because they have said so, that carrying out the instructions of the Secretary of State often caused the distinguished members of the Manpower Services Commission great heartsearching. In particular we know that the previous chairman of the MSC, Sir Bryan Nicholson, strove with might and main against the use of compulsion in the YTS. We know that as a result of that struggle, which he lost, he left the Manpower Services Commission. In fact we know that there are virtually no members of the MSC who really believe in what the Government are doing in the area of compulsion. Because they have made it public, we know that the TUC nominees have indulged in much heart searching, not only on this issue but also on others, such as the size of the allowance to be paid under YTS, the winding up of the community programme and the inadequacy of the provisions made for training within the YTS.
We have to ask the question yet again, and I ask the Minister tonight. After making their criticisms public, is it suggested that the members of the MSC ever failed to co-operate fully with the Government? Is sabotage alleged? Is that why it is being stripped of its powers? Is that why, under the previous clause, it is being packed with poodles? Is that why? What of the powers of independent investigation and research, which the MSC performed so well? Was that the problem? Was that the difficulty? When the MSC discovered and published the fact that the overwhelming majority of employers was against compulsion, was that something that it should not have done? Is that something that the new body will be allowed to do?
In its follow up survey the MSC discovered that only 50 per cent. of the YTS go on to a job, 28 per cent. go back on to the dole, 3 per cent. enter full-time education, 6 per cent. re-enter the YTS and that in some parts of the country much higher figures go on to the dole. In other words, figures were discovered which are impossible to square with the claims made by the Secretary of State on the radio, in the newspaper or on 26th January in Standing Committee (col. 711) that the vast majority of YTS trainees leave to take a job or to receive further training or education. Those statements by the Secretary of State are impossible to square with what has been produced by the MSC. Must the MSC he put down because of such data?
These are the questions that we ask. We ask them in the context of a series of amendments. We are very pleased to note the support they have received. The Minister has said that those amendments were either unnecessary, unclear, unworkable or unwise. We asked about the possibility of regular consultation with the new commission. The Minister said that it was unnecessary and that the amendment was

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unclear—he may have been right as far as clarity is concerned.
We asked for more reasonable facilities and for a safety net to be placed under the scheme. He said that it was unworkable. Indeed, the noble Lord, Lord Boyd-Carpenter, suggested that, if the amendment was carried, anybody with three O-levels might demand to be an astronaut
Lord Graham of Edmonton: He is a high flier!
Lord McCarthy: The Minister said that it was unworkable. We asked for better allowances with some independence, if only on the part of Parliament. We were told that that was unwise, unnecessary, unclear and unworkable.
Only in relation to one amendment, concerning special arrangements for the disabled, did the Minister offer to go away and think again—and I give the Minister credit for that. It was unnecessary, unclear but nevertheless he offered to go away and look at it. It is not enough, and we shall divide the House.
Lord Trefgarne: The Committee—
5 p.m.
Lord Boyd-Carpenter: I am grateful to my noble friend for giving way, but if he wishes to intervene we shall listen to him with the greatest of interest. The noble Lord, Lord McCarthy, obviously enjoyed himself—as did your Lordships—in his good, romping speech, of which I venture to suggest he does not really believe half.
What was that great phrase—that the Training Commission was to be "packed with poodles"? That is a very entertaining phrase, but highly offensive to a number of people whose names are not yet known. It assumes in advance that they would be poodles of the Secretary of State. Equally, there is the allegation that what caused this clause to be imposed was the idea that there had been sabotage of the MSC. All that is good, romping stuff, but it does not help the Committee very much in coming to a conclusion on the matter.
The noble Lord was good enough to refer to one of my speeches on an amendment in which I suggested that the use of the word "requirements" in regard to the trainee might be helpful to those who had unreasonable requirements, because a requirement is something that one is entitled to require. I did not mention three O-levels. I assumed that anyone who wished to be an astronaut would probably have a great many more O-levels than that, although possibly for someone who intended to be a pop singer such a grading might be more appropriate.
As I understand it, the essence of this clause, which has been brought out in many speeches by senior Ministers—and in a moment or two the Minister will tell us the views of the Government—is the importance which the Government plainly attach to dealing firmly and efficiently with problems of unemployment and above all youth unemployment. Noble Lords opposite have often waxed very eloquent about unemployment in general and the dangers of youth unemployment in particular.
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Personally I wholly agree with them. In the light of that situation the Government have decided on a great expansion of the YTS. The whole matter is of such importance and will involve such massive expenditure that surely it is right that the Government should accept far more responsibility than in the past for the efficient working of the system and that they should have the power to carry through the measures they think right and will work most efficiently.
Therefore unlike the noble Lord, Lord McCarthy, I welcome this clause. I agree with him that it is one of the most important parts of the Bill. I believe that it will affect, and affect for the good, the wellbeing of a large part of the younger generation in this country. I believe that it will help to mould, and mould well, the lives of a very large number of young people in this land of ours. I therefore welcome it wholeheartedly.
Baroness Seear: I was extremely interested in the comments of the noble Lord, Lord Boyd-Carpenter, who told us that this proposal was intended to make the scheme more efficient. He said that it was an expensive scheme and that the Government needed to make it more efficient.
I should like to know from the Minister why it is more efficient to take away the scheme from the Manpower Services Commission and give it back to the Department of Employment. I would remind the Minister that when a previous Conservative Government set up the Manpower Services Commission it was largely because under the Department of Employment very little had happened. The employment service under the Department of Employment had an extremely poor reputation—and if the noble Lord wishes me to do so I can document that remark up to the hilt because I did a considerable amount of work on the matter at that time.
The training which was carried out by the the Department of Employment was almost negligible. That is why the Conservative predecessors of the Minister set up the Manpower Services Commission and drew into the work of the Manpower Services Commission people from both sides of industry and from other sources who had spent a lifetime working in this field and were highly knowledgeable about it. I ask the noble Lord to tell us why he considers that it will make the service more efficient to take it away from that body and put it back to the Department of Employment. Perhaps I may add that the noble Lord asked me earlier today why I was collaborating with the Labour Party. The answer is that bad Bills make strange bedfellows, and this is a thoroughly bad Bill.
Lord McCarthy: In answer to the noble Lord, Lord Boyd-Carpenter, perhaps I may say that I mainly asked questions and that I am looking forward to the Government's answers. I have no desire to be offensive. He knows more about that than I. What I said was, I believe, more plausible than what he said about astronauts.
Lord Trefgarne: I hope that in a very few words I can persuade the Committee to agree that this clause should remain part of the Bill. The fact of the matter is that in recent months—indeed, in the past year or

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so—the level of unemployment in this country has been steadily declining. Of course it is still at too high a level, and therefore the Government believe very firmly that the emphasis must now lie on ensuring that those people who need proper new or additional training must be given the opportunity to undertake it.
That is why we are changing the name of the Manpower Services Commission, but above all changing the emphasis of its work so that in future it will be able to co-ordinate and in some cases to provide the training that is required. Not all the training will be provided by the Manpower Services Commission, or the Training Commission as it will be called. Much of it will be provided by other organisations, and in particular by a great many of our existing companies.
It is clearly important that the emphasis on the role of the newly-named commission should be such that it can co-ordinate that training, provide it and deliver it to the people who are in need of it. That is the essence of this clause. It is an important and fundamental purpose of this Bill and I commend it to the Committee.
5.6 p.m.
On Question, Whether Clause 24 shall stand part of the Bill?
Their Lordships divided: Contents, 135; Not-Contents, 77

Division No. 2

CONTENTS

Aldington, L.

Ellenborough, L.

Allenby of Megiddo, V.

Elliott of Morpeth, L.

Allerton, L.

Ferrers, E.

Ampthill, L.

Fraser of Kilmorack, L.

Arran, E.

Gisborough, L.

Bauer, L.

Glenarthur, L.

Beaverbrook, L.

Gormanston, V.

Belhaven and Slenton, L.

Grantchester, L.

Beloff, L.

Gray of Contin, L.

Belstead, L.

Greenway, L.

Blatch, B.

Gridley, L.

Boyd-Carpenter, L.

Hailsham of Saint Marylebone, L.

Brabazon of Tara, L.

Brougham and Vaux, L.

Halsbury, E.

Butterworth, L.

Harrowby, E.

Caithness, E.

Harvey of Prestbury, L.

Cameron of Lochbroom, L.

Harvington, L.

Campbell of Alloway, L.

Hayter, L.

Campbell of Croy, L.

Henderson of Brompton, L.

Carlisle of Bucklow, L.

Hesketh, L.

Carnegy of Lour, B.

Hives, L.

Carnock, L.

Holderness, L.

Carr of Hadley, L.

Home of the Hirsel, L.

Cawley, L.

Hood, V.

Colnbrook, L.

Hooper, B.

Constantine of Stanmore, L.

Hylton-Foster, B.

Cottesloe, L.

Jenkin of Roding, L.

Cowley, E.

Johnston of Rockport, L.

Craigavon, V.

Kenilworth, L.

Cross, V.

Killearn, L.

Cullen of Ashbourne, L.

Kimball, L.

Davidson, V. [Teller.]

Kinloss, Ly.

De Freyne, L.

Kitchener, E.

Denham, L. [Teller.]

Lane-Fox, B.

Derwent, L.

Lauderdale, E.

Digby, L.

Lawrence, L.

Dundee, E.

Layton, L.

Eden of Winton, L.

938

Loch, L.

St. Davids, V.

Long, V.

St. John of Fawsley, L.

Lothian, M.

Saltoun of Abernethy, Ly.

Luke, L.

Sanderson of Bowden, L.

Lurgan, L.

Sandford, L.

Lyell, L.

Seebohm, L.

Mackay of Clashfern, L.

Selkirk, E.

Manton, L.

Semphill, Ly.

Marshall of Leeds, L.

Sharples, B.

Merrivale, L.

Simon of Glaisdale, L.

Mersey, V.

Skelmersdale, L.

Milverton, L.

Somers, L.

Morris, L.

Strange, B.

Mowbray and Stourton, L.

Strathcona and Mount Royal, L.

Moyne, L.

Munster, E.

Sudeley, L.

Nelson, E.

Terrington, L.

Newall, L.

Teviot, L.

Norfolk, D.

Teynham, L.

Nugent of Guildford, L.

Thomas of Gwydir, L.

Onslow, E.

Thorneycroft, L.

Orkney, E.

Trafford, L.

Oxfuird, V.

Trefgarne, L.

Pender, L.

Trumpington, B.

Quinton, L.

Vaux of Harrowden, L.

Rankeillour, L.

Westbury, L.

Renton, L.

Windlesham, L.

Richardson, L.

Wise, L.

Rodney, L.

Wolfson, L.

Romney, E.

Wyatt of Weeford, L.

Rugby, L.

Yarborough, E.

NOT-CONTENTS

Airedale, L.

Kearton, L.

Ardwick, L.

Kennet, L.

Atllee, E.

Leatherland, L.

Aylestone, L.

Llewelyn-Davies of Hastoe, B.

Banks, L.

Lloyd of Kilgerran, L.

Basnett, L.

Lovell-Davis, L.

Beaumont of Whitley, L.

McCarthy, L.

Birk, B.

McGregor of Durris, L.

Bonham-Carter, L.

McIntosh of Haringey, L.

Boston of Faversham, L.

McNair, L.

Bottomley, L.

Mason of Barnsley, L.

Bruce of Donington, L.

Molloy, L.

Carmichael of Kelvingrove, I.

Mulley, L.

Cledwyn of Penrhos, L.

Nicol, B. [Teller.]

Cocks of Hartcliffe, L.

Oram, L.

David, B.

Peston, L.

Diamond, L.

Phillips, B.

Donaldson of Kingsbridge, L.

Pitt of Hampsead, L.

Dormand of Easington, L.

Ponsonby of Shulbrede, L. [Teller]

Elwyn-Joncs, L.

Ennals, L.

Prys-Davies, L.

Ewart-Biggs, B.

Ritchie of Dundee, L.

Ezra, L.

Rochester, L.

Falkland, V.

Seear, B.

Fitt, L.

Serota, B.

Foot, L.

Stallard, L.

Gallacher, L.

Stedman, B.

Galpern, L.

Stewart of Fulham, L.

Graham of Edmonton, L.

Strabolgi, L.

Grey, E.

Taylor of Blackburn, L.

Hampton, L.

Taylor of Mansfield, L.

Harris of Greenwich, L.

Turner of Camden, B.

Houghton of Sowerby, L.

Underhill, L.

Hughes, L.

Wallace of Coslany, L.

Irvine of Lairg, L.

Walston, L.

Jacques, L.

Wedderburn of Charlton, L.

Jay, L.

White, B.

Jeger, B.

Wigoder, L.

John-Mackie, L.

Williams of Elvel, L.

Resolved in the affirmative, and Clause 24 agreed to accordingly.
5.14 p.m.
Clause 25 [Status of trainees etc.]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 121A.
Page 27, line 20, leave out ("may") and insert ("shall").
The noble Lord said: Clause 25 deals with the legal status of trainees. Since the White Paper Training for Employment, published by the Government last February, spoke of their programme being intended to deal with some 600,000 people a year, we are dealing with the legal rights of a significant section of the population.
Clause 25, as it stands, gives the Secretary of State a broad, almost total, discretion to determine by order the legal status of all these people, the nature of payments to them, and indeed to modify any other enactment in so doing. Indeed, it is remarkably wide in subsection (1)(c) that my honourable friends in another place remarked upon the language, to which the Minister of State, Mr. Cope at col. 730 of the Committee stage, said that the words there written "have no specific purpose at present", although he went on to say that lawyers had recommended that they be put in.
This is another case where, as we have seen already in the Committee this afternoon, the discretion of the Minister is very wide. We say two things in our Amendment No. 121A and Amendment No. 121B, if I may speak to that also. First, we say that there should be a presumption as to the legal rights of those who are called trainees that they enjoy the same rights as employees. Secondly, we say that there is a need for flexibility—for reasons to which I shall come—and that there is a need for the Secretary of State to have a somewhat narrower range of powers that he would use after explaining his intention to do so to both Houses.
Although perhaps some of us have rather stronger doubts about the quality of schemes that have emerged over the past five years than have been mentioned earlier today, nothing divides these Benches from the Government about the need for training schemes of high quality, that reach those who are unemployed, and the need for legal flexibility to cope with the situation. However, we do not understand why those who are in such schemes should not presumptively enjoy the rights of employees.
If one takes the two main types of scheme specified in the Government's White Paper, in employer-based schemes they will be working—albeit, one hopes, also learning and training—on the job, in the office or factory. They will be producing work and value for another. If one considers the project-based training schemes—such as the well-known insulation of old peoples' homes, which is so often discussed in debates on the matter—and if one considers young people on such schemes, they are engaging in services. But the idea that they necessarily must be fundamentally different under the law from those who are working beside them as employees seems very strange unless there is a particular reason in favour of the trainees. That is why we believe that the Government's aim is to keep most trainees in a position where they do not enjoy these legal incidents because that goes with the Government's attitude of refusing the rate for the job and insisting upon workfare benefit plus £10, as is stated in the White Paper.
It is right that this matter be set out properly because it is a complex situation which emerges upon
940
an already complex state of the law. The law of employment is in a chaotic state and the Government have done nothing to help it in the past eight years. That is to say that the basic concepts of the law are in turmoil. For most purposes and for most statutes those at work divide themselves into those under a contract of employment, or employees, and those under contracts for services, who are usually the self-employed or independent contractors. Under some statutes there is also a legal category of worker, but that poses few problems here.
These two basic legal building blocks have in some ways become fragmented. The Court of Appeal in 1986 held that a metal worker, who had been employed explicitly on a self-employed basis for four years, was in law really an employee; and in 1983 casual waiters, who had for years been regularly employed by Trust House Forte, were held in law not to be employees. From those cases one gains the flavour of what has happened. This is not the occasion to cure that ambiguity. For the most part, for millions of workers their status as employees is safe.
However, the Bill raises a third oddity that has emerged. There have grown up categories of people who work but who are in a sense not known to the law at all except as categories sui generis. I put aside the problem of clergymen, who the Judicial Committee recently observed were not the servants of the Church but the servants of God. That is perhaps not a problem here. I put aside police cadets, who have emerged as a category quite impossible to fathom, but I do not put aside the main category of oddity, the trainee.
The horrifying status of trainees as a kind of legal no man's land was revealed in 1982 and 1983 when decisions showed that not only in the first case was a young worker on a work experience scheme on a farm not covered by the unfair dismissal laws, because he was not an employee, but secondly, in 1983, a young woman worker was not covered by the Race Relations Act because she was neither an employee nor a self-employed person under a contract for services.
The Government hastily made orders—for that they should take credit, and we give it happily—to bring trainees for the most part within the scope of the Race Relations and the Sex Discrimination Acts, and also of Section 2 of the Health and Safety at Work Act 1974.
We agree that there is need for flexibility to make orders of that kind. It was said in another place in Committee—again I quote the Minister of State at col. 727 of the Committee proceedings on 26th January—
"but equality of opportunity in training requires positive discrimination".
I think we should prefer to say "affirmative action". But however one puts it, one knows that the Sex Discrimination and the Race Relations Acts allow for discriminatory measures in order to help those who need special measures in ethnic minorities, and for women workers.
The Government's point is only half right; that is to say that the Government suffered from a confusion of categories. It is possible to discriminate in training

941
under those sections of the Acts in many cases where the workers are themselves employees. What one must not do is discriminate in the employment of the employees, so it is not necessary for the most part that a trainee should have a status other than as employee for that purpose. There are a few cases where it is needed, and our amendment provides for that.
The purpose and thrust of the amendment is to ask the Government: why on earth not start with the presumption that trainees are employees so far as concerns their rights? How easy it would have been for the Government to do that. After all, governments in France and Italy have had for some years now specially devised work training contracts. Indeed, there is a British precedent. Although the Government have allowed apprenticeships to wither on the industrial vine, the legal category of apprenticeship is still there It could have been adapted. I do not say that all the old feudal incidents should have been brought in, although the Government may be attracted by some of them. I have in mind the master's duty to the apprentice to provide him with medicines, which the Government might have seen as a useful opportunity to promote private medicine. We should of course not wish to do anything of that kind, but we should wish to take the contract of apprenticeship and update it to include trainees.
In most of the employment legislation, unamended by the Government, the apprentice is included in the provisions for unfair dismissal, maternity rights, equal pay, race and sex discrimination, health and safety laws far wider than the Government's proposals, guarantee payments in regard to insolvency and in part, not wholly, redundancy. Is there not something unseemly, absurd and unjust in setting two young people at the bench, one an apprentice with rights under all those laws and legislation and the other a trainee? The Government and the law say to him, "You can only have a little hit of health and safety, race and sex discrimination protection. For the rest you are out".
It is this kind of approach that makes young people dislike the whole process of YTS. Today has proved again, I believe, that the Government have no conception whatever of why young people resist YTS and why they dislike some of the training schemes, especially in the urban areas and in ethnic minorities. However, that is another broad debate, but here is a little aspect of it. Why cannot we say, "All right, we cannot do a lot of other things, but we can give you as far as possible the rights of employees"?
There was a point at which I thought that perhaps the Government intended to do that because they have taken such a wide discretion in the clause. Indeed, in the Bill it looks as though it is possible that the Government will do that, but in relation to two other aspects one realises that they will not. First, in Committee in another place, at col. 731 on 26th January, the Minister of State rehearsed the protection under health and safety, race relations and sex discrimination legislation, and he went on:
"there are no other purposes at the moment, although the clause is drafted to allow an order-making power to be used under future legislation".
942
He was being pressed to give unfair dismissal rights.
The White Paper is even clearer. Indeed, I find the White Paper offensive to trainees because, having set out all the things that the Government want to do—that is certainly not offensive and has high aims—it then says:
"Participants on the new programme will be trainees not employees".
Why should that be? Of course some people could not be in that position and the Minister will have to make a special order; but for the most part why not begin by saying, "We offer you these courses", especially when they say: "We will prosecute you if you do not take them"—to which we come in a moment. If you say those things, why not say: These are the courses. We believe you ought to accept them when they are reasonable and high quality and what is more when you go to that office, factory, farm or whatever and work side by side with others who are fortunate enough perhaps to have a secure job, so far as we can we shall make your rights parallel to theirs. I beg to move.
5.30 p.m.
The Earl of Dundee: The powers contained in Clause 25(1)(a) to (c) allow the Secretary of State to clarify the rights of individuals on Government schemes in relation to legislation affecting the workplace where a doubt arises. Sometimes it has been thought necessary to give trainees specific protections where they would not otherwise have them. This was done, for example, in relation to the Health and Safety at Work Act where YTS trainees have been given the protection of employees. The power in Clause 25(1)(d) would also enable the Secretary of State to specify how payments to such individuals are to be treated; for example, whether or not the payment should be subject to deductions for National Insurance contributions.
The Noble Lord, Lord Wedderburn, has asked whether it is right that trainees should be treated as employees. He takes the view that participants on Government schemes should be normally employees and have full employment protection rights. This is a fundamental misunderstanding of our training programmes, although the noble Lord agreed with high-quality training. We are offering, through such excellent opportunities as YTS and the planned new adult training programme, a real chance to the unemployed to enhance their future employment prospects. We can offer these opportunities only if employers are willing to help in the training of the unemployed in addition to the training they would already carry out for their own employees. If we were to require that employers should offer people on these schemes a contract of employment, this would reduce severely the opportunities available and everyone would be worse off as a consequence.
I hope that, in introducing that aspect, I go some way to assuring the noble Lord, Lord Wedderburn, of the reasons why we have not given presumptions of similar rights as between employees and trainees.
However, I agree that it is right that trainees should have the full protection of the law for health and safety and against sexual and racial discrimination. This is why YTS trainees were given the protections of

943
employees under the Health and Safety at Work Act. Furthermore, the Health and Safety Commission is currently consulting on draft regulations to apply these protections to other training programmes. It is also why we have designated training providers for programmes such as YTS and the Sex Discrimination and Race Relations Acts so that trainees on these schemes enjoy proper protection.
In regard to the new adult training programme, we intend to ensure similar protection for participants. The commission has recommended that trainees on the new programme are treated in the same way for health and safety and equal opportunities as trainees on YTS and my right honourable friend the Secretary of State has accepted its recommendations in full.
The noble Lord, Lord Wedderburn, said that he thought trainees would be deterred from joining the schemes as a result of not having the same rights. While I do not believe that to be the case, even if it is but only to a small extent the danger would be far greater if we were to deter employers from recruiting prospective trainees. That would be the case if we were to give the presumption which the noble Lord seeks. As a result of looking at the problem in that way, perhaps the noble Lord will at this stage see fit to withdraw his amendment.
Lord Wedderburn of Charlton: I am grateful to the Minister for that reply. I am glad that he confirmed much of what I said about race relations and sex discrimination. I hope that I gave credit to the Government for extending protection in 1983, but they did so only after two cases revealed a scandal. The Government acted because of the burgeoning protests about the number of trainees injured in training schemes in 1982–83. I tell the Minister that it will be after other scandals in regard to other areas of employment protection rights that the Government will have to move again, and I do not understand why it is that they cannot move a little now.
The Minister's central point was that if one gives to trainees the employment protection rights, employers will be more reluctant to recruit people on employer-based training projects. I shall not say to the Minister that I do not believe him but that I do not believe it. I do not believe it because nowadays most employers, even small employers, are fairly well advised about such matters. They would know perfectly well that the trainee would not be with them long enough to build up rights in respect of unfair dismissal. However, where the trainee stays in a job where continuous service is a possibility, why should he not count the period of his training towards the unfair dismissal protection? In most cases, whether it be one year or 18 months since the Government in their unwisdom saw fit to extend the qualifying period to two years before unfair dismissal can be claimed, that situation would not normally arise and it would not deter an employer.
After looking at other employment protection provisions I say to the Minister that I do not believe that, for the most part, our employers who will cooperate in the scheme are of such a character that they will consider it right to have working at the bench people who are so deprived of rights as compared with others alongside them. I do not
944
believe that most employers would take that view. The noble Earl did not spell out the issue but spoke vaguely, as the Government often do, about employment protection rights being burgeoned on business and deterring employers. If there is a problem as regards that right, it should be part of the scheme that the Government will somehow help an employer with a genuine problem and not take away the rights of the worker.
If the Minister says that trainees might be deterred, I do not say that their legal rights will be a central point in that. Perhaps we should both be surprised to learn of the number of unemployed young people who know a great deal about the scheme, although in the White Paper the Government write about people as though they know little about it. Often that is not true and they are aware of the situation. However, their objections would be more towards the matters about which we shall speak later; namely, of being conscripted into the scheme under penalties and threat of penalties.
Quite apart from the Government's inept performance in regard to trade union co-operation and tripartism, the three points taken together (the abolition of tripartism; the conscription of young people; and the general approach of the Government) may well ruin what could and should be a good scheme. I do not understand why the Government cannot give a little and say that they will extend Section 2 of the Health and Safety at Work Act; that they will look at other provisions in that Act; that they will look beyond race relations and sex discrimination at guarantee payments or maternity rights. Why not deal a little further with equal pay and maternity rights?
I hope that when the Government look to the Report stage they will go a little further in pronouncing the presumptive rights of trainees. If they do not do so, the clause which will be laid on the statute book will not give the Minister a general discretion which he will use in favour of making trainees into employees. It will be a general discretion which he will use against making trainees into those with employment rights because that has been made clear in the White Paper. We must pass to other matters which are linked to this amendment and I beg leave to withdraw.
Amendment, by leave, withdrawn.
[Amendment No. 121B not moved].
Clause 25 agreed to.
Clause 26 [Amendment of the Social Security Act 1975 with respect to the refusal of training, etc]:
Lord McCarthy Lord McCarthy moved Amendment No. 121C:
Page 28, line 8, at beginning insert ("subject to paragraph (ee)")
The noble Lord said: With this amendment I should like to take Amendment No. 121D. We come now to Clause 26. If we take the view, as we did, that Clause 24 is the most important and fundamental clause in Part II of the Bill, I believe we take the view that Clause 26 is the most objectionable clause in Part II of the Bill. This clause lays down the conditions under which people who unreasonably refuse a training place or who are dismissed from a training place can be disqualified from benefit. That is the issue which the amendment addresses.
The amendments focus on the creation of an appeal system, if it is alleged by the employer that an individual worker has lost his place or has had his place taken away from him as a result of misconduct. In the first instance the problem, as we see it, is that it is clear that the misconduct is the concept of misconduct as applied in social security law and as applied by the adjudicating officer if the individual appeals to a social security appeals tribunal. The problem is that this concept of misconduct is so much wider than the equivalent concept of misconduct in unfair dismissal.
Moreover, it is not merely a question of the way in which the concept has developed. In the case of unfair dismissal, once misconduct is established it is still for the tribunal to decide whether in all the circumstances it is fair and reasonable to regard it as a fair reason for dismissal. It is partly a question of observance by the employer of certain satisfactory procedures such as warnings and the element of natural justice. As far as we understand it, none of the sophisticated and —from the point of view of the employee—extremely helpful qualifications applies to the concept of misconduct as it is interpreted and applied in social security legislation.
The interpretation there has always been that if someone is dismissed on grounds of misconduct the essential matter is whether, in the opinion of the employer, he is significantly to blame. If he is significantly to blame and as a result the employer takes the view that he is no longer a suitable employee, then misconduct is accepted. Thus if one looks at the examples of cases of misconduct in social security law, in particular circumstances one can see examples which may well have gone another way in an industrial tribunal on issues of unfair dismissal. For example, individuals who get drunk in their own time away from the employer can be denied benefit; sexual offenders who offend on a Sunday far from the workplace can be thought to be no longer a suitable employee. People can be disbarred from benefit when the only offence is that of being sick and not informing the employer.
As long ago as 1932 the Royal Commission on the subject said that that concept, as used for social security purposes, was to wide and unfortunate. However, that is a concept which is now to be imported into the disqualification of benefit for those who are dismissed from a training place. In effect, that leaves the matter entirely to the word of the employer as to whether or not the individual receives benefit.
The only justification for the perpetuation of the notion of misconduct in social security for so long was that it was only applied for a relatively short period. The normal period for which individuals who were dismissed and in respect of whom the employer alleged misconduct were disqualified from benefit was six weeks. The concept of misconduct as it developed was never satisfactory. Indeed, it is perfectly reasonable for people to say something should have been done long before this Government took office. However, at least we can say that until October 1986 the disqualification period was normally six weeks—six weeks right back to the establishment of the whole concept in 1911, through
946
the 1920s and 1930s until October 1986. At that time this Government were the first Government to more than double the period for normal benefit disqualification to 13 weeks. The justification of the time was that to increase the period from six to 13 weeks would help market mobility; an argument which will be familar to the Committee because it is the argument that the Government give for virtually everything.
However, next April there is to be a further doubling of the period of disqualification on grounds of misconduct to 26 weeks. Therefore, this quadrupled period of disqualification is now to be taken from the normal area of social security legislation into the area of training. Also, an individual who is disqualified for misconduct will have a 40 per cent. cut in supplementary benefit to be going on with. If he is seriously ill, the cut will be reduced to 20 per cent. Of course it is not just hoped that it will improve the mobility of the labour market; it will save £37 million a year. Since the period during which workers will be off the register will be doubled, it will be worth another 200,000 or 300,000, if not more, on the unemployment figures.
Apart from that, is it justified? In particular, is it justified when it is applied in training places? We do not argue that the measure should be done away with. This amendment has a far more modest intention than that. It merely says that if disqualification is introduced on grounds of misconduct then the individual on the training scheme should have access to some form of independent arbitration—third party arbitration or, if not third party independent arbitration, perhaps access to an industrial tribunal. If access is given to an industrial tribunal, we feel that there is a chance that some of the more balanced, fairer and wider criteria used by industrial tribunals might be introduced into the question of misconduct. I beg to move.
5.45 p.m.
Lord Irvine of Lairg: It appears to me that the amendment is all about fairness. Misconduct means a serious breach of contract of employment. The words:
"lost his place…through his misconduct"
mean that the real reason for the loss of the place is guilt of industrial misconduct. Therefore, in every case there must be two issues: was he guilty of conduct that amounts to misconduct and, if yes, was his misconduct the real cause of the loss of his place on the approved training scheme? Both these questions are capable of giving rise to very real and genuine disputes of a purely factual nature.
For employees—that is, people fortunate enough to be in work—misconduct, when established, often means the loss of employment. However, anyone dismissed who loses his employment because of an allegation of misconduct is entitled to take his case to an industrial tribunal. Industrial tribunals decide these cases daily. They decide whether a worker was dismissed unfairly or fairly. Therefore, the question of principle on this amendment is this: Why should not the same principle apply to the loss of a place on an approved training scheme as applies to the loss of employment?

947
A place on an approved training scheme offers some opportunity—perhaps not very great opportunity but real opportunity—to the individual concerned for obtaining employment. That is to him or to her at least as vital an interest—he or she being unemployed—as is the retention of employment for those who are fortunate enough to be employed. Therefore, the question of principle which this amendment poses surely is this: Why should the principle which applies to loss of employment because of misconduct not equally apply to the loss of the opportunity of employment through membership of an approved training scheme? I suggest that that is a question of principle which the Minister should address and respond to.
I hope that the answer is not that these cases can be dealt with by social security tribunals. Those tribunals are concerned only with whether or not there was misconduct according to a rather curious definition of misconduct. However, the important point of difference is that the industrial tribunals are concerned not only with whether there was misconduct but also whether it was, in all the circumstances, fair to dismiss by reason of misconduct. That is a wholly different and independent consideration. It allows all sorts of personal mitigating factors to be taken into account in ways that the social security tribunals, in practice and indeed in principle, do not countenance.
Therefore, when I consider—and, I hope, when other Members of the Committee consider—the likely backgrounds of so many on approved training schemes and the pressures to which they are inevitably subjected, I am driven to think that the same protection as applies in loss of employment cases should apply to those who lose their places on approved training schemes. That is the protection that must be established—that it was in all the circumstances fair that they should be deprived of their place because of misconduct.
Baroness Seear: I very much hope that the Government will agree to look closely at this amendment. We are all extremely anxious—and it is common ground between us—that the reputation of the YTS should be high and that potential trainees should see it as a desirable opportunity. One only needs a few cases in which it is felt that a job has been lost and the traineeship has been lost without consideration of fairness to prejudice a great many people against it. That makes the headlines and it is very bad for the scheme, particularly now that the penalties are tough—26 weeks is a very long time; it is half a year. A 40 per cent cut in benefit reduces the young person's benefit to a very meagre amount of money to spend. That is a very serious penalty. Surely it is in nobody's interest, and certainly not that of the Government, that it should be possible to say that a young person suffers these penalties without having the opportunity to have his or her case independently looked at. I hope the noble Lord will take that on board.
Lord Trefgarne: I fully share the concern of the Committee that benefit sanctions should not be applied to those who have good cause for refusing, failing to accept, or for leaving a place on an
948
approved training scheme. As I shall expand in the discussions on this and other amendments to this clause, such safeguards are already contained in the provisions set out in Clause 26. However, perhaps I may first pencil in some of the background to these provisions.
Members of the Committee opposite may believe that Clause 26 introduces a new power to apply benefit penalties to those who do not take advantage of the training opportunities available on Government schemes. It has been a principle in law since 1946, and even before, that people should not be able to turn down an opportunity of help in favour of resting on benefit. Indeed, the honourable Member for Oldham, West, Mr. Michael Meacher, speaking on behalf of the Opposition in another place, said on 21st January that:
"No one objects to a measure of compulsion as a last resort for individuals who are blatantly malingering … it is perfectly reasonable to deny benefit to people who patently and unreasonably refuse to avail themselves of a job or a training scheme."—[Official Report, Commons, Standing Committee F; 21/1/88; cols. 633–34.]
It may be helpful if I explain that principle in more detail. First, everyone claiming unemployment benefit is required by law to be available for work and this has been the position for more than 70 years. The principle was first set out in Section 86(3) of the National Insurance Act 1911, introduced, if my memory serves me right, by the then Mr. Lloyd George. It was carried over into other legislation in 1921, 1946 and, finally, in 1975 in Section 17 of the Social Security Act 1975. If someone repeatedly rejects all offers of help, including opportunities on training programmes, this may give rise to doubts as to their availability.
Secondly, the power to apply benefit sanctions to people who refuse a place on an approved training scheme or who leave prematurely, like the requirement to be available for work, dates back to Beveridge. It was first laid down in the National Insurance Act 1946 and carried over into Section 20 of the Social Security Act 1975.
As the risk of incurring again the wrath of the noble Baroness, Lady Seear, and the noble Lord, Lord Harris of Greenwich, I remind them that both Lloyd George and Beveridge were distinguished members of the Liberal Party.
Baroness Seear: We are most grateful for the good publicity on the excellent record of the Liberal Party.
Lord Trefgarne: I am always anxious to help.
Lord Irvine of Lairg: Has the Minister shuffled his papers? The question to which this amendment is directed, and no other question, is whether individuals on approved training schemes should lose their places by reason of single acts of misconduct. Does the Minister propose to address directly the subject matter of this amendment and not to entertain us with history?
Lord Trefgarne: I am grateful for the advice of the noble Lord. Far from being the significant change to which noble Lords opposite have referred. Clause 26 simply rectifies an anomaly in Section 20 of the 1975 Act by bringing the provisions on employment and

949
training fully into line. Clause 26 closes a loophole which allows a trainee to engineer his own dismissal from an approved training scheme, through misconduct, without the threat of benefit sanctions; whereas had the trainee been an employee, benefit sanctions would apply. At the outset I said I wanted to pencil in the broad background to this amendment and that is what I have done.
I turn now to the proposition that claimants can turn down unsuitable places. The provisions of Section 20 of the Social Security Act 1975—
Lord Irvine of Lairg: The subject of this amendment is not the turning down of places offered but the removal from existing places by reason of misconduct. Can the noble Lord address the subject of the amendment?
Lord Renton: As I understand it, we are discussing only Amendments Nos. 121C and 121D.
6 p.m.
Lord Trefgarne: I am grateful for the advice from the noble Lord opposite, and from my noble friend. I have gone into the background of the essence of the provision and the amendment before the Committee. It is the question of the individual rights of trainees. Several noble Lords have suggested that all trainees on our schemes should have the rights of employees and an employment contract. It may help if I explain that many employers take on additional trainees surplus to their employee requirements. For example, that applies to YTS trainees because they recognise their responsibility to train for the future of the country and not just for their own particular needs. It would clearly be wrong to demand that these surplus trainees should have the same rights as employees, but to insist that they should have even more extensive rights of appeal than their fellow employees would be very unfair and would place an intolerable burden on employers. Employers may choose not to take on trainees rather than to attempt to shoulder such a burden which would result in less help for unemployed people.
I am sorry that the noble Lord does not like the basis upon which we bring forward this proposal. I recognise that he sees certain difficulties with it, but we believe it is an essential proposition and I hope noble Lords will not press their amendments.
Lord Wedderburn of Charlton: Before the Minister finally sits down, perhaps I may raise one matter now that he has nearly (but not quite) reached the question of misconduct. I am sure that the noble Lord's memory stretches to the years 1974–79 which was the first time in two decisions of those years that the Social Security Commissioners decided that they were not bound by the decisions of industrial tribunals. Therefore this problem has been with us for only 10 years or so and that is why the Government ought to look at it. He did not tell us whether he was going to look at it and perhaps he will do so.
Lord Harris of Greenwich: Will the noble Lord deal with the very precise and detailed questions put to
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him by the noble Lord, Lord Irvine of Lairg? He did not in any way answer the points made by the noble Lord and I am sure many of us would be very gratified were he to do so.
Lord Trefgarne: I am sorry if I do not respond in the way that the noble Lord hopes regarding the amendment. The essence of the proposition contained in this clause is one that I have referred to and I do not believe I can help the noble Lord further.
Lord Irvine of Lairg: The noble Lord has been most generous in giving way and I am grateful to him for doing so again. It may be my own fault that I have not put the question as clearly as I desired. Does the Minister accept that there can be cases where someone on an approved training scheme has misconducted himself but that it would still be unfair to take away his place because of this misconduct? Does the Minister accept that there can be such cases and that they should be catered for?
Lord Trefgarne: Perhaps I may help the noble Lord further in this way. I refer in particular to amendment No. 121C because we are dealing with that and Amendment No. 121D in the same debate. By requiring an appeal system prior to dismissal, Amendment No. 121C seeks to give a right of appeal to trainees way beyond the rights of employees. I suggest that this is quite impractical and unnecessary. It would be a major departure from current industrial relations law and practice to require employers to follow an appeals mechanism before dismissing an employee. The closest that current legislation comes to this is when an industrial tribunal makes an order for reinstatement in a case of unfair dismissal. Even then the law recognises that reinstatement is not always practicable and allows for compensation to be paid instead.
I do not believe that this is the time for us to consider such a radical reform of industrial relations law. We are concerned here with the application of benefit sanctions which I have described at some length.
Lord McCarthy: The noble Lord leaves me confused. We had a clause stand part debate not very long ago as regards Clause 24 to which he gave no answer at all. Now we have a much more precise amendment and he gives a clause stand part answer. However it does not concern Clause 24, but Clause 26. The Minister gives us a clause stand part answer in Clause 26. Perhaps when we reach the debate on whether this clause shall stand part he will tell us what he should have said at the clause stand part debate regarding Clause 24.
It is very confusing because as his clause stand part speech in answer to Amendment No. 121C went on, he began to give us an answer to Amendment No. 121B. He began to tell us the answer to the amendment which the noble Lord, Lord Wedderburn, moved saying that trainees should be employees. That is not this amendment. Finally, as a result of the intervention of noble friends on this side of the House, as I understand the Minister, he reaches Amendment No. 121C but what he says is wrong. He says that we are trying to obtain for people that which

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they do not have in other respects. In the area of training and misconduct we are trying to get something analogous to what happens in unfair dismissal cases generally. There is nothing unusual in this or anything which would set any unnecessary or unworthy precedent.
If the noble Lord had said, "Why did you not do this as regards the Social Security Bill, and why are you bringing it forward in this Bill?" I should have thought that was an answer. Perhaps we shall hear that answer in another clause stand part debate. The fact is that we are very familiar with this kind of answer. This answer is the same as, "Why do you not come Wednesday or why not do it on Friday?" We did not get that, but we have received an answer that we are trying to create some kind of precedent. We are not trying to do that. Any employer who has an agreement with a third party that he should go to that third party in the case of some alleged misconduct, would in fact do voluntarily what we are suggesting should be put on the face of the Bill.
We are only saying that if an employer decides not to do that then this provision should be processed not through the social security legislation but through the industrial tribunals set up to deal with unfair dismissal. There is nothing unusual or difficult in that. The fact of the matter is that when the Government finally get round to it they do not want to give the workers any rights.
Baroness Seear: Perhaps I may ask the Minister one thing. In plain straightforward English does he or does he not think it fair that a young trainee should lose his job for misconduct and suffer serious penalties as a consequence, without having the chance of having his case heard independently in some way?
I shall put it like this. Supposing a youngster has a row with his foreman. That is not an unknown situation. The foreman may be a most desirable person (as most of them are), but some of them can be a little difficult at times. The youngster and the foreman have a row, and the foreman says "You are out". Is this young man really to lose benefit for 26 weeks or, if he goes on social security, is he only to receive 40 per cent.? If he has been unreasonable and insubordinate to the foreman that is fair enough. It may or may not be fair enough. But at least let it be established by some independent party that the foreman was not suffering from a hangover. These things happen in real life; but perhaps the noble Lord does not know that people have hangovers in real life. When people have them, they do not behave as nicely as they do when they do not have a hangover. This is normal common practice. Is it not reasonable that the young man should have a chance to put his case to an independent person? That is all that we are asking.
Lord Trefgarne: I am sorry that the noble Lord, Lord McCarthy, suggested that my answers have had a certain sameness about them regarding the amendments we have dealt with this afternoon. The fact of the matter is that some of the amendments have had a certain sameness about them. Naturally, I have tried to confine my replies to the essence of the
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amendments that were offered to me. Perhaps I may help the noble Baroness, Lady Seear, specifically in this way. If a claimant is apparently dismissed for misconduct he is not without any right of appeal against the decision of the adjudication officer. He can go first to the independent social security appeal tribunal. Thereafter, if he thinks fit, he can go on a point of law to the Social Security Commissioner, to the Court of Appeal and even ultimately to this House.
Baroness Seear: The noble Lord, Lord Irvine, explained why that was an inadequate—
Noble Lords: Order!
Lord Trefgarne: I am sorry if the noble Lord, Lord Irvine, thinks that that is unsatisfactory, unacceptable or inadequate. It is fair for me to say that such machinery exists, and for the reasons I have described we do not think it would be appropriate to supply the alternate route which is suggested by noble Lords opposite.
Lord McCarthy: I am afraid that the noble Lord fails to satisfy us even as much as he satisfied us previously. I did not say that it was sameness. I said that it was out of place. Now that it is in place it is unacceptable and we shall divide the Committee.
6.10 p.m.
On Question, Whether the said amendment (No. 121C) shall be agreed to?
Their Lordships divided: Contents, 68; Not-Contents, 120.

DIVISION NO. 3

CONTENTS

Airedale, L.

Lawrence, L.

Ardwick, L.

Llewelyn-Davies of Hastoe, B.

Aylestone, L.

Lloyd of Kilgerran, L.

Barnett, L.

Lovell-Davis, L.

Basnett, L.

McCarthy, L.

Beaumont of Whitley, L.

McGregor of Durris, L.

Birk, B.

McIntosh of Haringey, L.

Brooks of Tremorfa, L.

McNair, L.

Carmichael of Kelvingrove, L.

Mason of Barnsley, L.

Carter, L.

Mishcon, L.

Craigavon, V.

Nathan, L.

Davies of Penrhys, L.

Nicol, B. [Teller.]

Dean of Beswick, L.

Oram, L.

Diamond, L.

Phillips, B.

Dormand of Easington, L.

Ponsonby of Shulbrede, L. [Teller.]

Elwyn-Jones, L.

Ewart-Biggs, B.

Prys-Davies, L.

Fletcher, L.

Ritchie of Dundee, L.

Gallacher, L.

Rochester, L.

Galpern, L.

Salisbury, Bp.

Graham of Edmonton, L.

Seear, B.

Grey, E.

Seebohm, L.

Grimond, L.

Serota, B.

Hampton, L.

Shannon, E.

Harris of Greenwich, L.

Stedman, B.

Hayter, L.

Stewart of Fulham, L.

Henderson of Brompton, L.

Strabolgi, L.

Houghton of Sowerby, L.

Turner of Camden, B.

Hughes, L.

Underhill, L.

Irvine of Lairg, L.

Wallace of Coslany, L.

Jacques, L.

Walston, L.

Jay, L.

Wedderburn of Charlton, L.

Jeger, B.

White, B.

John-Mackie, L.

Williams of Elvel, L.

Kilmarnock, L.

953

NOT-CONTENTS

Allenby of Megiddo, V.

Killearn, L.

Allerton, L.

Kimball, L.

Arran, E.

Kitchener, E.

Ashbourne, L.

Layton, L.

Bauer, L.

Lindsey and Abingdon, E.

Beaverbrook, L.

Long, V.

Belhaven and Stenton, L.

Lothian, M.

Beloff, L.

Lucas of Chilworth, L.

Belstead, L.

Lurgan, L.

Birdwood, L.

Lyell, L.

Boyd-Carpenter, L.

Mackay of Clashfern, L.

Brabazon of Tara, L.

Macleod of Borve, B.

Brookeborough, V.

Marshall of Leeds, L.

Brougham and Vaux, L.

Massereene and Ferrard, V.

Butterworth, L.

Merrivale, L.

Caithness, E.

Milverton, L.

Cameron of Lochbroom, L.

Mottistone, L.

Campbell of Croy, L.

Mountgarret, V.

Carlisle of Bucklow, L.

Mowbray and Stourton, L.

Carnegy of Lour, B.

Munster, E.

Carnock, L.

Nelson, E.

Carr of Hadley, L.

Newall, L.

Cawley, L.

Norfolk, D.

Chelwood, L.

Norrie, L.

Coleraine, L.

Nugent of Guildford, L.

Colnbrook, L.

Onslow, E.

Constantine of Stanmore, L.

Orkney, E.

Cottesloe, L.

Oxfuird, V.

Cowley, E.

Pender, L.

Cross, V.

Quinton, L.

Davidson, V. [Teller.]

Rankeillour, L.

Denham, L. [Teller.]

Renton, L.

Derwent, L.

Renwick, L.

Dilhorne, V.

Rodney, L.

Dundee, E.

Rugby, L.

Eden of Winton, L.

St. Davids, V.

Elliott of Morpeth, L.

St. John of Fawsley, L.

Ferrers, E.

Saltoun of Abernethy, Ly.

Fraser of Kilmorack, L.

Sanderson of Bowden, L.

Geddes, L.

Sandford, L.

Gisborough, L.

Sharples, B.

Gray of Contin, L.

Skeimersdale, L.

Grecnway, L.

Somers, L.

Gridley, L.

Strathcona and Mount Royal, L.

Hailsham of Saint Marylebone, L.

Sudeley, L.

Halsbury, E.

Swansea, L.

Harmar-Nicholls, L.

Swinfen, L.

Harrowby, E.

Swinton, E.

Harvey of Prestbury, L.

Teynham, L.

Harvington, L.

Thomas of Gwydir, L.

Havers, L.

Trafford, L.

Hesketh, L.

Trefgarne, L.

Hives, L.

Trumpington, B.

Holderness, L.

Tryon, L.

Home of the Hirsel, L.

Vaux of Harrowden, L.

Hood, V.

Westbury, L.

Hooper, B.

Windlesham, L.

Hylton-Foster, B.

Wise, L.

Jenkin of Roding, L.

Wyatt of Weeford, L.

Johnston of Rockport, L.

Yarborough, E.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendment No. 121D not moved.]
6.20 p.m.
Baroness Seear Baroness Seear moved Amendment No. 121E:
Page 28, line 13, after ("has") insert ("on at least three occasions").
The noble Baroness said: If these young persons are to be penalised for refusing to take a place on a training programme, we would ask that they should have turned down an opening on no fewer than three occasions (not one occasion) before it is counted against them in the way described in the Bill.
I agree with the noble Lord, Lord Boyd-Carpenter, that in a previous amendment perhaps the word
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"requirements", in relation to the trainee, was going a bit far because you could interpret that as being a demand which could be made by the young person.
However, there is something less than "requirements" which I think we should take into account. After all, the career service which is strongly supported by the Government, aims to find out what the interests and aptitudes of a youngster are before suggesting any training—it would be helpful if the Minister were able to listen to me. The training, if it is good, is very expensive and it is a waste of training time if it is given to people who have no particular interest or aptitude for it. They cannot continue unreasonably saying that nothing suits them except to be a brain surgeon. We know that there are some people around like that, but they are a small minority. If a young person is really keen to do a certain type of training and it is a reasonable occupation for which to train that is not available in his or her area, it is not unreasonable for that person to try and hang out for it for a certain period of time.
In the end, it will be much better value for money—the phrase so beloved by the Government—if the youngsters are allowed to wait a little longer in order to find what they really want to do, because they will put their backs into it and make a success of it. But, on the other hand, to drive them into doing what they do not really want to do is likely to be a considerable waste of training. I accept that they cannot go on forever refusing such offers. That is why we suggest that they should be allowed to turn down what is offered up to three times before the penalties are invoked. I beg to move.
Lord McCarthy: We support the speech of the noble Baroness and indeed we have our names on the Marshalled List in respect of the amendment. This is an amendment which should commend itself to the Government. It should especially commend itself to the Minister because I wrote him down as saying that Clause 26 represents "no significant change in policy". Well, if that is so, this is a way of proving it.
We have not taken those three occasions out of the air. It is the basic way, from time immemorial, that clerks in the labour exchanges, in the job centres and in the benefit offices have interpreted their instructions. This is how they decided what "good cause" was in practice. They have offered the people who have come in one job and, if they have not taken it, they have then offered them another one, and finally, they have offered them a third one. If, after the three occasions, the man or girl behind the grille thought that that this meant that the person was not seeking work or seeking training—as it might be now—they have said: "I am afraid old fellow you have had too long a piece of string. You are off the benefit."
The trouble with the system is that it does not remove many people off benefit. A recent survey of the MSC showed that out of 25,000 young persons who refused YTS in 1987 benefits were only stopped in 700 cases; that is to say, 2·8 per cent. If the Minister takes the view that this situation should continue and nothing changes, my question to him is this: can the Government say—since the MSC will not be there—that they will commission another survey for 1988 or 1989 and that they expect the percentage to

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be 2·8 per cent.? Or, will it be 28 per cent.? Or, will they stop doing the survey? That is how we shall see whether there has been any change in policy. However, if there has been no change in policy and if the Government do not wish to be tougher with the work-shy than they are now, there is no reason on earth why the Minister should not accept the amendment.
Lord Renton: I do not think that my noble friend should accept, or should be expected to accept, the amendment. The case that has been put forward by the noble Baroness, Lady Seear, and the noble Lord, Lord McCarthy, seems to ignore the presence in the paragraph of the words "without good cause". They are in fact saying that even though the young man has without good cause refused or failed to apply for a place, or refused to accept one, three offers must be made to him before he suffers any disadvantage. That situation seems to me, if I may use jargon which has been used several times in connection with the Bill, to be going right over the top. Surely it is wrong that the officials who have to administer the scheme should, when they find someone unto-operative because he has "without good cause" failed to accept an offer, nevertheless have to ensure that on two further occasions an offer is put to him? That does not seem to be reasonable. I hope that my noble friend will not accept the amendment.
Lord McCarthy: Does the noble Lord not agree that we may be going over the top but we have been doing so for years? I understand what the noble Lord appears to want to do. What I should like the Government to say is whether they are coming down from the top.
Lord Renton: With the greatest respect, that is not relevant.
A noble Lord: It was just a joke.
Lord Trefgarne: I am most grateful to my noble friend Lord Renton for making the point, or at least one of the points, that I intended to make to your Lordships in response to the amendment. It is proposed in the amendment that the young person should indeed be entitled to turn down "without good cause" three opportunities of a training place that may be offered to him. Furthermore it is proposed that he should, at the same time, continue to enjoy the benefits that he was receiving. I do not think that that is a sensible or fair proposition.
I should add that before a potential trainee is made any offer he is of course carefully counselled and much consideration is given to what would be an appropriate course for him to take. Clearly there would be no interest in offering the trainee a course which is not suitable for him and which he might well therefore feel like refusing with good cause. There would be no benefit to anyone in offering him a course of that nature. The system is devised in such a way as to ensure that that situation does not arise.
Baroness Seear: Does the Minister agree that there are not adequate training places available for the desirable jobs? The training places at the top of the list—this is common to all of us working in the
956
field—are highly desirable. However, below that level, one has to take what is going and what is going is often not at all in line with that which a reasonable youngster wants to obtain.
Lord Renton: Before my noble friend answers that question I should say that we are not talking about jobs; we are talking about vacancies on training schemes, of which there are likely to be several available. Surely the provisions of the Bill have covered the position admirably.
Lord Trefgarne: My noble friend is again quite right in what he says. Indeed, as I said during the discussion on an earlier amendment, many thousands of additional courses will be made available this year and next year. This will ensure that there are an adequate number of places available for those who may need them, and also that there is an adequate range of choice of such courses so that those who advise the young people can select the best and most appropriate course for the young person in question.
The noble Baroness is of course quite right. There will be some courses right at the top of the desirable list which every young man in his right mind would be queuing up for. An astronaut's course, for example, if there were one available, would no doubt be desirable, as my noble friend Lord Boyd-Carpenter said.
Lord Boyd-Carpenter: A high-level course.
Lord Trefgarne: Yes, a high-level course. Equally, I dare say there will not be a great range of applicants suitably qualified for such a course. It will not be possible to offer many such desirable courses to young people, but there will be a considerable range of desirable courses tailored to the needs of the young people involved. My noble friend Lord Renton is right when he says that it is not satisfactory that applicants should be able to turn down three offers of a course without good cause.
6.30 p.m.
Baroness Seear: Is the Minister not being overoptimistic? I do not know where he obtains his information that there will be a large number of extra courses. The Government are, rightly, busily trying to obtain extra places for the new job training scheme for older people. My information at local level is that officials are extremely worried about whether they will be able to find all the YTS places in addition to those for the job training schemes, if all the job training schemes are taken up. I hope that the Minister is right when he believes that there will be this large number of desirable courses. That is not what I am being told, and I should like to know from where he obtains his information.
Lord Trefgarne: When I held a different appointment in the Ministry of Defence I was responsible for the armed forces YTS. There were a number of desirable, excellent courses, and we were short of suitable applicants for them.
Lord Wedderburn of Charlton: Before the Minister sits down, may I ask him whether he agrees—I

957
suspect that he might because he has addressed the Committee on the history of the social security/national insurance schemes way back to 1924 — that since such a date the issue of whether someone has rejected the offer of a job or training by reason of it being unsuitable, or, the obverse side of the coin, for good cause—involves such a high element of subjective assessment that it is bound to be a problem where young people are being offered, as the noble Baroness, Lady Seear, has said, many jobs that do not offer the kind of training that they want? Would it not be wise, even if the Government cannot accept this amendment, for them to be a little more flexible on the question of "good cause" and the suitability of training courses, because it is here that the rub comes? People, especially young people, will feel conscripted if this Bill and the Social Security Bill go through.
Lord Trefgarne: As the noble Lord understands, we are talking about 16–18 year-olds. The proposition contained in the amendment is that they should be allowed, without good cause, to reject the offer of up to three courses. I do not think that is a sensible proposition. It is the proposition enshrined in the amendment. I do not think that the Committee should agree to it.
Baroness Carnegy of Lour: Before the noble Baroness decides what to do with her amendment, as she is the one who understands how the scheme works on the ground because she is involved with it on her area manpower board, I ask her whether it is not rather misleading to talk about YTS, as we did on the previous amendment and on this, as if it were comparable to applying for a job. The YTS guarantees a place. A number of girls and boys whom I know have gone on one scheme which was not 100 per cent. what they wanted. They managed to move to another. Some have managed to move to three because they have not found what they wanted. They are not sunk if they go on the wrong scheme. Is it not a much better discipline and much more realistic for them to approach training as is suggested in the Bill as it stands, but with the understanding that the real object is to put them into something in which they are interested, which they enjoy and which motivates them? That is what the youth training scheme is all about. I should be interested to know whether the noble Baroness agrees with me.
Baroness Seear: I do not hold out much hope that the Minister will be accommodating. However, I shall repeat what I said a few moments ago. He is greatly over-estimating the ability to offer suitable training programmes. I should rather see "on three occasions" than "good cause" written into the Bill, if it were a matter of changing the wording. The noble Baroness, Lady Carnegy, was correct when she said that a young person who, on going into a training programme, finds that it is not what he or she wants, moves to another. If that is not what is wanted, he or she moves to another.
Surely it would be more sensible to take a little longer and to put those young people into the third position the first time rather than to waste training time in training post one and training post two, which
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someone else could have had while they were occupying it. I know it is true and that a youngster who thought he wanted some training finds, when he gets the place, that his idea of that job is wrong. I agree that that is a good learning and desirable process. There is a taster element in that which can be useful. The situation is not always like that by any manner of means. It would be better initially to spend the time, money and effort to find the right programme. That is much less extravagant than having young people train for a bit, move onto something else, train and move onto something else again. We should allow them to wait until they find the right programme provided that they are doing that sensibly and responsibly. Of course we agree that that situation cannot go on indefinitely. I merely say that this proposal is not an efficient way to do that. We should allow them to have three goes at getting it right and then say, "You are being too choosy by half. You cannot go on like that". That is fine. Let them have the three goes. The Minister might feel happier if we took out "good cause" and put in "on three occasions"; that would cut the ground from under the feet of his argument.
Lord Trefgarne: It is not necessary to write in "refusal of a course with good cause" because that is already inherent in the provision.
Baroness Seear: As has been said what is good cause is highly subjective. Three times is a fact. One can say, "You have turned it down three times, and that is it". One can be as tough as one likes after that. That would be more efficient, economical and fairer to the youngster. I can see that we shall not have the amendment accepted at this time of night, having regard to the preceding results and I therefore beg leave to withdraw the amendment.
Viscount Massereene and Ferrard: I know a young girl who wants to be a shepherdess—
Noble Lords: Withdrawn!
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 121F:
Page 28, line 17, at end insert—
("( ) After subsection (1), there shall be inserted the following subsection—
"(1A) A person shall not be disqualified by reason of 'good cause' or 'neglect' under paragraphs (e), (f) and (g) above if he has left, failed to apply for, or otherwise taken up a place on a training scheme that is not reasonably suitable to his capacities, aptitudes and requirements." ").
The noble Baroness said: The amendment seeks again to underline the element of choice that we feel is so vital to the success of any training scheme. My noble friend Lord Wedderburn of Charlton has already spoken at length about our concern that we are having a provision which will conscript young people into unsuitable schemes. As we all know, the MSC has already said that the individual must count and that the training must be tailored to the needs of the individual. No training scheme can work without the principles that make for willing and committed participation by the trainees. A number of your Lordships have already said that on previous amendments.
It is to be hoped that every approved training scheme will be of good quality, and that every unemployed person, especially young people, joining will receive support and encouragement. Unfortunately, as we have seen, this does not always happen. So what we are doing with this amendment is to spell out precisely what we mean by "good cause".
There was a lot of discussion about "good cause" on the last amendment. We are saying in our amendment that a person shall not be disqualified from receiving benefit by reason of "good cause" or "neglect", if he has left, failed to apply for or otherwise taken up a place on a training scheme that is not reasonably suitable to his capacities, aptitudes and requirements. It is true that "requirements" appears again in this amendment, but nevertheless I think the wording indicates quite clearly that what we are lookng for here is an assurance that the schemes will be suitable and that people will not be denied benefit and forced into unsuitable schemes because they need the benefit. That is why we think that it is good to define "good cause" in this way. For those reasons I commend the amendment to the Committee. I beg to move.
Lord Boyd-Carpenter: The noble Baroness pointed out very fairly that her amendment includes the word "requirements" which we discussed on an earlier amendment. The noble Baroness, Lady Seear, was good enough a little time ago to acknowledge that it was not an appropriate word in the context of the ealier amendment; nor, I would suggest to the Committee, in the context of this amendment.
If somebody's requirements are to be the dominating factor, they give that person virtual choice to demand a particular type of course which they want. Many young people are very sensible and will put forward sensible ideas. But some who have very high ambitions for themselves, or others who are perhaps not immune to the temptation of making difficulties, will pose as a requirement something that it is quite impossible to provide. Therefore apart from the broader considerations to which the Minister will no doubt refer in a moment, I would point out to the Committee that this amendment as it stands must be unacceptable because it shifts the balance of choice much too far.
Lord Mottistone: Some years ago I knew a young man who was out of a job. He was very ambitious, but he could not get the right sort of job. Without going through a long story, which would be a waste of time, I must tell you that he had to suffer all sorts of despair before he finally realised that the important thing was to have a job. He had two or three totally unsuitable jobs, but the great thing was that he was humble enough to accept them. The people who gave him those jobs moved him on to something better.
I know we are talking about training in this amendment, but I think it is important that the legislation should be strong enough not to make it too easy for the person who has ideas about himself which are too choosy, if you like, who is too sure that he should not do something which is nasty, dirty or
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untidy. In my experience, with most of these schemes people try to adjust the scheme to the person as best they possibly can. But if it just happens that the scheme is not there, then it is no bad thing to be trained at any old something rather than not be trained at all.
This young man I am talking about has gone on to all sorts of greater more successful activities—not wildly successful but much more in accordance with his own abilities. He has been at the bottom level, and it has done him no harm at all to know what the bottom level is. One of his first jobs was digging in preparation for a tennis court in outer London when the ground was freezing one winter's day. It was totally unsuitable for him but he did it. This was very good.
I personally think that the principle behind a lot of these amendments is that the Opposition, in their great softness of heart, are trying to put forward things which are not good for the people whom they are trying to help. I hope very much that the Committee will resist not only this amendment but many of the ones which may follow it.
6.45 p.m.
Lord Wedderburn of Charlton: Before the noble Lord sits down, his speech was most helpful—
Lord Mottistone: I am glad.
Lord Wedderburn of Charlton: —but does he not appreciate that what he said was exactly what young people object to? They look at a place like this and say, "When their kids leave school sooner or later— it is usually later— they go off, they have a choice; they may not get the course they want, but off they go to college and university; whereas we are not merely told that we have YTS, with which some of our friends have not had good experience, though others may have, but we are told that we must take any course that is going". Does the noble Lord not understand that that is exactly the attitude that is objected to? I understand it may sometimes do good in the way which he describes, but to have it enunciated as a principle is what working boys and girls, men and women, object to.
Lord Mottistone: I am not talking about somebody who went to university.
Lord Wedderburn of Charlton: I know you are not.
Lord Mottistone: I am talking more about the sort of person whom the noble Lord has just been mentioning. It is not therefore really relevant. But it is a fact that the young man himself realised that he had better get on and do what was in front of him.
Viscount Massereene and Ferrard: I should like to back up my noble friend Lord Mottistone in what he has said. I do not know whether the noble Lord. Lord Wedderburn, has any YTS youngsters whom he has been employing, but I have employed quite a few young people. I always try to do so, but some of them have very grand ideas about what they want to do.
When I was a young man I had to do exactly what I was told. A great number of these young people who now come from state schools will not take

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orders. I have in mind a young girl. If she was given an order, if she was told to do something and she did not want to do it, she burst into tears and complained that the foreman had shouted at her. It is really absurd. It will become rather like perpetual students who go from one university to another. They just want to pick and choose.
Lord Trefgarne: I daresay some of the bolshie ones come from public schools as well. Be that as it may, as I have already explained, the provisions of Section 20 of the Social Security Act 1975, as amended by Clause 26, already allow an individual to leave or turn down a place if he has good cause or if the training place offered is not a reasonable opportunity. If an approved training course would not help an individual get back into work or it was not suitable in his case, either because of his capacities, aptitudes or domestic circumstances, then that individual could refuse a place on it either because he had good cause to do so or because the training place was not a suitable opportunity for him.
Furthermore, as I have also explained, independent adjudicating authorities decide what is good cause and what is a reasonable opportunity. Such decisions can be complex matters and may need to take into account a variety of sensitive personal circumstances. They are helped in taking these decisions by extensive case law. While I recognise the intentions behind the Opposition amendments, I should point out that those amendments may actually be counter-productive by limiting the grounds which the adjudicating authorities could consider to those specified in the amendment when determining good cause. I am certain that that is not what was intended.
Perhaps I may stress again that the individual has a right of appeal against the adjudication officer's decision, initially to the independent social security appeal tribunal and thereafter, if he thinks fit, on a point of law to the social security commissioner and upwards through the Court of Appeal to your Lordships' House.
I hope therefore that the principle that is enunciated in this amendment and the difficulties to which I have referred will persuade the noble Baroness not to proceed with her amendment.
Baroness Turner of Camden: I note what the Minister has said. In view of some of the points which he made, I am surprised that he is not accepting the amendment. It seemed to me that he was saying that it would be good cause if a trainee or a prospective trainee were to reject a place which was not suitable to his capacities, aptitudes, and so on.
However, the Minister is clearly not accepting the amendment, and that leads us to say that we are still concerned that the Government's intention is to ensure that people are conscripted—it is a strong word but one which has to be said—into schemes which may not be suitable for them. It may well not be a case of suitability or not wanting training. Such people may well find that no training is provided in a scheme to which they have been allocated. They may want to leave because no training is provided. They may want to get out of such a scheme and get
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into another scheme which will provide them with training. They may wish to look again at the prospects and choices, such as they are, which are before them.
I share the views enunciated by my noble friend Lord Wedderburn. We are talking about young people who have been to state schools and who have not been subject to educational privilege. It is up to Parliament to ensure that those vulnerable young people are not conscripted in that way and put into schemes which may not give them anything. Certainly, if those schemes do not provide training, they will not provide those people with jobs or the reasonable possibility of jobs. I shall not press the amendment to a Division. However, we are dissatisfied with the response of the Government to what seem to us to be a reasonable set of amendments. Nevertheless, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 121G:
Page 28, lint 17, at end insert —
("( ) After subsection (1) there shall be inserted the following subsection—

"( ) (a) For the purposes of (e); (f) and (g) above, no person studying for a recognised qualification shall be disqualified from receiving benefit;

(b) a recognised qualification shall be such a qualification as is prescribed by order made by the Secretary of State;

(c) no order shall be made under (b) above unless a draft has been laid before and approved by a resolution of both Houses of Parliament." ").

The noble Baroness said: Perhaps it will be for the convenience of the Committee if, in moving Amendment No. 121G, I speak also to Amendments Nos. 121J and 121K. Those are grouped amendments. The purpose of Amendment No. 121G is to attempt to clear up the confusion which appears to exist in regard to what I believe is known as the "21-hour rule". Under current social security regulations, those who have been claiming benefit for three months or who have left a youth training scheme and are attending college for less than 21 hours a week can still continue to claim benefit. The only condition that such claimants have to meet is that they will end their studies and take up work if a suitable job becomes available. Those under the age of 19 years in non-advanced education and studying less than 12 hours a week can also receive benefit while remaining available for work.
Twenty-one hours a week allows an individual to study for a wide range of qualifications, including A-levels, RSA examinations or City and Guild examinations. It is clear that unemployed people with qualifications stand a far better chance of obtaining employment than those with no qualifications. The 21-hour rule is widely regarded as providing an opportunity for study and self-improvement.
Evidence concerning the rule is not easy to come by. However, information from colleges around the country appears to indicate that it is widely used. For example, I understand that the principal of Handsworth College in Birmingham has said that 3,000 out of 3,400 students are on benefit. As I said earlier, there has been some confusion as to whether or not the 21-hour rule will be affected. The

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amendment attempts to deal with that and it indicates clearly that study for a recognised qualification will entitle the claimant to continued benefit.
Perhaps I may now turn to Amendments Nos. 121J and 121K. Amendment No. 121J is a paving amendment for Amendment No. 121K. The object of that amendment is to ensure that training schemes will make provision for persons to gain a recognised qualification if they so wish. I am sure that that will commend itself to the Committee, and I hope also to the Government. As has been stated many times, we do not have as high a standard of education and post-training education as we should like. For example, in Britain only 32 per cent. of our 16 and 17 year-olds are in education, compared to over 95 per cent. in Japan. We are seeking in this amendment to allow a person on a designated training programme to study for a recognised qualification. We think that it is important to target training so that trainees can have something to aim for and know that it is to their advantage to study for a recognised qualification.
The question arises of what a recognised qualification is. Paragraph (b) states:
"A recognised qualification shall be such a qualification as is prescribed by order made by the Secretary of State",
and paragraph (c) states:
"No order shall be made under (b) above unless a draft has been laid before and approved by a resolution of both Houses of Parliament".
The intention of the amendment is to ensure that young people on training schemes know that there is a list of recognised qualifications to which they can aspire and that an approved training scheme must make provision for a person who wants to gain a recognised qualification to do so via the approved training scheme. I beg to move.
Lord Trefgarne: As I understand it the amendments seek, first, to make it impossible for someone who is studying for a recognised qualification to be denied unemployment benefit if he refuses a course of approved training; secondly, to stipulate that all courses of approved training shall lead to a recognised qualification; and, thirdly, to require recognised qualifications to be prescribed by order of the Secretary of State after approval by both Houses of Parliament. I shall try to deal with each of those matters in turn.
The noble Baroness has said that someone who is already studying for a qualification which will help him to find work should not be forced into government training schemes by the threat of benefit sanctions. The sanctions in Section 20 relate to unemployment benefit. One of the basic conditions for the receipt of unemployment benefit is that the claimant should be available for work. He must be able to follow up any suitable job opportunity without delay. If he is studying in normal working hours, he must be prepared to give up the course at once if he is offered a job. If there is any doubt about that, a decision is sought from the independent adjudicating authorities.
It would therefore be rare for someone studying for a recognised qualification to be receiving benefit. The only likely case where someone might receive benefit
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while studying is under the so-called 21-hour rule. There is concern that those studying under that rule might be forced to give up their studies and go onto approved training schemes or face benefit sanctions. I believe that I can reassure the Committee on that point. The Government agree that someone who has left full-time education and wishes to occupy his time usefully by undertaking some study while looking for work should be allowed to do so. Therefore, a person may study for up to 21 hours and still be entitled to income support, provided he has already been unemployed and receiving benefit for at least three months and is available for work.
I am pleased to be able to reassure the Committee that, despite recent press reports to the contrary, those arrangements will be carried over into income support from April. It would also be regarded as a positive outcome at a Restart interview if anyone were pursuing a suitable course of study within the terms of the 21-hour rule so long as he remained available for work. Even if a claimant studying under the rule were offered a place on an approved training scheme and refused it, the adjudicating authorities could decide that he had good cause for refusal under the existing provisions of Section 20. Each case would depend on its merits. Therefore, I believe that the amendment is unnecessary. I hope that what I have said will persuade the noble Baroness to withdraw the amendment. I believe that there is very little between us on the point.
Baroness Turner of Camden: I thank the Minister for that response. We shall look closely at what he has said in Hansard as regards the 21-hour rule and see whether it meets the concerns that led us to put the amendment down. I am not certain whether the Minister had completed his response on Amendments Nos. 121J and 121K concerning recognised qualifications. Perhaps he had not.
Lord Trefgarne: I edited slightly the reply that I gave in the interests of brevity at this late hour. I could offer more information about the vocational qualifications. Perhaps I may write to the noble Baroness.
Baroness Turner of Camden: In view of that response I beg leave to withdraw the amendment. amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Strabolgi): I call Amendment No. 121H.
Lord Mishcon: It may be convenient, since the hour has just struck seven, for a certain decision to be taken which was announced for seven o'clock.
Lord Trefgarne: I had thought that it might be appropriate to continue as far as the end of Clause 26. As always, I am in the hands of the Committee.
Lord McCarthy: I think it might have been appropriate if we had known that.
Lord Trefgarne: I apologise if the usual channels have not operated with their normal efficiency.
The Deputy Chairman of Committees: The Question is, That the House be now resumed.
Lord Trefgarne: Order! I have not moved that the House he resumed and that we adjourn. However, I am very happy to do so if that is the wish of the House. I also suggest that we continue discussion of the Employment Bill at 8 p.m. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Matrimonial Proceedings (Transfers) Bill [H.L.]
7 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

Foreign Marriage (Amendment) Bill [H.L.]
The Lord Chancellor: My Lords, this is a modest measure aimed at tidying up the legislation relating to marriage abroad. We are concerned with two types of foreign marriage: first, the consular marriage; that is, a marriage celebrated before or by a British marriage officer, and secondly marriages performed by services chaplains or other authorised people. The principal Act governing this area, although somewhat amended, is now only four years short of its hundredth birthday.
The Bill is narrower in scope than its origins might have led us to expect. In 1984, in the wake of the unenthusiastic reaction from all quarters to the Hague Convention on Celebration and Recognition of the Validity of Marriages, the English and Scottish Law Commissions established a working party to assist in the consideration of the reform of the choice of law rules relating to marriage. Choice of law is a complex and intriguing topic, but one with which in the event I need not trouble your Lordships.
When the Law Commissions, to whom we are as ever indebted, issued their joint report on the topic last July, their conclusion was that the case for comprehensive legislation was not made out. There were no major areas where the existing law seemed to be wrong. And further, since some choice of law rules are still in the process of development, it would not be desirable to crystallise them in statutory form at present.
However the Commissions felt that there was a case for detailed reform in a related area, that of the
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Foreign Marriage Act 1892. That Act itself consolidated earlier statutes
"relating to the marriage of British subjects outside the United Kingdom".
The precise meaning of British subject is a topic to which I shall return.
In essence the Act provides two exceptions to the general rule that a marriage which is formally invalid by the law of the country in which it is celebrated is also formally invalid within the United Kingdom: those are the consular marriage and the marriage of members of British forces serving abroad.
Section 1 of the 1892 Act provides that a marriage—a consular marriage—celebrated in any foreign country by or before a marriage officer, and in the statutory form, shall, where one party is a British subject, be as valid as if it had been solemnised in the United Kingdom with a due observance of all forms. Subsequent sections prescribe various, mainly directory, requirements.
In the late 19th century British subject meant, broadly, any person born within Her Majesty's dominions and allegiance, or on board a British ship, and anyone born outside the dominions but whose father was a British subject.
The British Nationality Act 1981 however gives to the term British subject where it appears in legislation enacted before 1983—and so including the 1892 Act—the meaning,
"a person who has the status of a Commonwealth citizen".
That would leave within the scope of the Act citizens of such countries as Australia, Canada, Singapore and Zimbabwe who are not only unlikely to wish to use the facilities provided under it, but whose laws no doubt make their own provision for overseas marriage and which make no reciprocal provision for United Kingdom nationals.
Clause 1 of the Bill therefore, drawing on a precedent in the 1986 Outer Space Act, is designed to exclude from the ambit of the 1892 Act, so far as possible, persons not now holding any form of British nationality. We hope in that way to preserve the original intentions of the 1892 Act while avoiding its encompassing an unrealistically wide range of people.
The Bill includes several disparate, detailed and technical changes to the law relating to consular marriages and for that reason they are not easy to describe briefly. If there is a single theme, however, it is to remove the weighting in the original Act in favour of England and the Anglican church in what is United Kingdom legislation. The practical effect is generally not great; but, as a Scot, I can only commend the shift of emphasis.
The 1892 Act for example requires that the English law as to parental consent shall apply in all cases regardless of whether the person to be married is domiciled in Scotland or Northern Ireland, whereas in fact in Scotland parental consent is not required for the marriage of a minor, and the Northern Irish law is rather stricter than the English law. Clause 2 of the Bill therefore applies the law of that part of the United Kingdom in which the person has his or her domicile. Only those domiciled outside the United Kingdom altogether will continue to be bound by the English law in any event.

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There are certain amendments to the 1892 Act consequential upon that general principle. For example, the form of the oath as to the satisfaction of the consent requirements is adjusted in subsection (2). Similarly, Clause 3 removes the old requirement that an objection, a caveat, entered against the solemnisation of a marriage should in cases of doubt be transmitted to a Secretary of State and then to the Registrar General for England and Wales for his decision. It is now to be sent to whichever of the Registrars General, for England and Wales, for Scotland or Northern Ireland is appropriate.
Section 8, subsection (2), of the 1892 Act lays down conditions as to the place and times at which and by whom a marriage may be celebrated, and as to the presence of witnesses. It goes on to provide that a marriage may be solemnised
"according to the rites of the Church of England or such other form and ceremony as the parties thereto see fit to adopt".
In that context, your Lordships may accept that the present reference in the 1892 Act to the rites of the Church of England adds nothing. Neither does the declaration in set form required by subsection (3) from those adopting a different ceremony that they know of no legal impediment to their marriage, and that they take their partner to be their lawful wedded husband or wife, even when the chosen ceremony itself contains appropriate declarations to the same effect. Clause 4 seeks to set these matters right.
Section 22 of the 1892 Act in its original form declared the validity of
"marriages solemnised within the British lines"
by a chaplain or officer. A wider provision was substituted by the Foreign Marriages Act 1947 validating marriages celebrated by a forces chaplain in any foreign territory, where one of the parties is a member of the forces serving there, or a person employed there in such other capacity as may be prescribed. The Foreign Marriage (Armed Forces) Order 1964 prescribed, among others, members of Queen Alexandra's Royal Naval Nursing Service. The section does not at present cover accompanying civilian personnel, school teachers for example, or dependent children. The former can be accommodated by extending the 1964 order. To accommodate the latter, provision is required by primary legislation, and that is achieved by Clause 6. The definition of children in that clause is still needed today, even though the relevant parts of the Family Law Reform Act 1987, which will deal with those born outside marriage, are shortly to come into force.
The Law Commissions recommended finally that the opportunity should be taken to repeal a series of exotic and spent marriage confirmation Acts, including an Act of 1858 validating marriages in Tahiti and Ningpo, and an Act of 1867 relating to marriages in the chapel of the St. John Del Rey Mining Company, Morro Velho, Brazil. These and other colourful specimens find themselves bundled together in an undignified manner in the schedule.
Before concluding I should add one brief comment about the position of Northern Ireland. The Bill extends to Northern Ireland, as this is a topic which has consistently been dealt with by legislation on a United Kingdom basis. Much of the 1892 Act touches upon matters—consular officers, marriages
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of Her Majesty's forces—which were outside the competence of the former Parliament of Northern Ireland, and since direct rule are reserved or excepted matters. I beg to move.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
7.12 p.m.
Lord Mishcon: My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for guiding us through these esoteric provisions with his usual clarity of language and customary lucidity. There are a few matters which deserve comment when an important Bill of this kind comes before the House. After all, it affects the lives and futures of many people within the United Kingdom and outside it.
When he explained Clause 1 of the Bill the noble and learned Lord said that this was obviously a sensible measure in view of the new definitions under the British Nationality Act 1981. That provision, which now makes it very clear that persons who do not now hold any form of British nationality are not covered by this legislation, would appear to be perfectly sound and sensible.
The noble and learned Lord then moved on to explain Clause 2 of the Bill and with a narrowness of view that I refuse to associate with him in any of his speeches said that there was some sort of holiness about Scots law and some sort of preference that Scots law ought to hold. I readily accept that it does so in his heart and mind but it may be a matter at least for doubt that Scots law, as he seems to take for granted, is always the best law even for people who are domiciled in Scotland but who have their ordinary residence outside its borders.
Noble Lords will remember romantic tales of Gretna Green and stories of couples who escaped across the border in order to take part in the holy rite of matrimony even though their parents did not regard their action as quite as holy as they did at that particular juncture in their young lives. Under this clause it is now envisaged that those who have Scots domicile but are resident abroad—or rather who want to travel over the border—can marry without the consent of their parents being required if one of the parties concerned is under the age of 18. If I may say so, as a humble advocate of the advantages of English law and obviously that which appertains to Wales and Northern Ireland as well, I am not quite so sure that that is a very sound provision.
I do not want to interfere with Scots law and the fact that that law does not require parental consent, but I should have thought that anyone under 18 who is a citizen of the United Kingdom and is married in this country should have to have the consent of parents before that marriage is validated. When the noble and learned Lord replies I shall welcome any views he expresses on something that at least ought to be mentioned and not receive just a passing comment on Second Reading of the Bill.
I think that the noble and learned Lord was absolutely right to agree with the view of the Law Commissions that this is not necessarily the time for a comprehensive restatement of the choice of law rules relating to marriage. As we rightly should, we are amending and repealing legislation which is

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obviously completely out of date and out of harmony with present conditions. But at some time in the future it may be a very good idea to have some consolidating enactment (including the provisions of this amendment Bill) which will set out very clearly the state of our law in regard to the choice of law rules relating to marriage.
7.17 p.m.
Lord Meston: My Lords, we owe a debt to the Law Commissions for the thought that has clearly gone into this Bill. Indeed, the shortness of the Bill reflects the conclusions of the Law Commissions that comprehensive legislation was not called for in areas in which the law was either developing or had already developed satisfactorily. My only regret is that it did not touch upon the bewildering topic of the law relating to marriages on ships, which I have never understood, and simply brings to my mind Humphrey Bogart on the "African Queen".
The limited changes in the Bill are nevertheless valuable. Certainty in the law of marriage is always important because it affects status but there must be a measure of flexibility because the right to marry is a basic freedom. How much freedom should be allowed in exercising that right is perhaps not so easy to assess.
Clause 4 of the Bill echoes the 1892 Act in allowing parties to marry:
"according to such form and ceremony as [they] see fit to adopt."
which seems to give scope for exotic invention—providing of course that they state that there is no lawful impediment to their matrimony. There may be an impediment to their exotic invention, I suppose.
Clause 6 of the Bill gives a sensible extension of Section 22 of the 1892 Act to cover civilians accompanying the armed forces serving abroad. I hope that they would take more care than a soldier whom I once represented. He was, I think, serving in Belize and he woke up one morning with a hangover alongside a local lady who was clutching a certificate of marriage. A ceremony had undoubtedly taken place, although he had absolutely no recollection whatsoever of it. He was relieved to have the marriage annulled.
Clause 7 repeals a number of Acts listed in a schedule which are said to be spent. They present an impressive imperial-sounding list. We shall have to do without the Fiji Marriage Act of 1878 and the Basutoland and British Bechuanaland Marriage Act of 1889.
The main rationalisation in the Bill is that touched on by the noble Lord, Lord Mishcon. It is effected by Clause 2, which provides that a Scotsman marrying abroad will no longer have to comply with the requirements of parental consent imposed by English Law. Although the law of Scotland is more relaxed in respect of parental consent and, as the noble Lord, Lord Mishcon, has just said, Gretna Green has thrived on that relaxed view, the fact is that there is at least one other area in which Scottish law is more restrictive.
The English Marriage Act provides that a man may not marry his grandmother. The Scottish Marriage
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Act is more cautious. It stipulates that a man may not marry his great grandmother. Looking at this Bill in the round, we can conclude that at best it is a useful measure of law reform. At worst it prevents a Scotsman marrying his great grandmother in Fiji. If the noble and learned Lord the Lord Chancellor feels that we can live with that restriction, then we should do likewise.
The Lord Chancellor: My Lords, I am very grateful to both noble Lords who have spoken on this Bill. As has been pointed out, the main matter with which the Bill deals is in Clause 2. Clause 1 is important but Clause 2 is the one to which attention has been drawn in the speeches of the noble Lords, Lord Mishcon and Lord Meston.
Section 2 deals with the consent required to the marriage rather than other matters about possible impediments to the marriage. However, in so far as the clause deals with consent, I should like to say a word about the remarks of the noble Lord, Lord Mishcon. I have always been careful to refrain from making comparisons in general between the law of Scotland and the law of England and Wales with regard to their qualities. In Clause 2 we are seeking to provide Scots law for Scots people; English and Welsh law for English and Welsh people; and Northern Irish law for Northern Irish people. Even if I were convinced to a greater degree than I am perhaps at present that the English law on this matter was superior to the Scots, I have difficulty in seeing why it should be applied to a Scots person marrying abroad when it does not apply to a Scots person marrying at home. That is the injustice that this clause seeks to correct. It gives the benefit of Scottish law not to any English person marrying in England or abroad but to Scots people domiciled in Scotland marrying abroad. That appears to me to be just. They must take the law of the country in which they are domiciled when they are getting the benefit of the foreign marriage legislation.
Lord Mishcon: My Lords, in his amusing and very erudite discussion, would the noble and learned Lord care to mention the logic of why someone who ought to be subject to English law can go over the Border and can then be subject to Scots law? Why should not English law be equally binding on an English national?
The Lord Chancellor: My Lords, this Bill does not touch on that question. This Bill is the Foreign Marriage (Amendment) Bill and it relates to marriages which are foreign. Within the context of this Bill the marriage of an English person at Gretna Green—even if it had advantages—would not be a foreign marriage. Therefore this provision does not operate on it. This gives the benefit of their own law to people who use the arrangement of the Foreign Marriage Act. I believe that your Lordships would think this just, equitable and right. Therefore, with I think the support of noble Lords who have spoken, I renew my Motion that the Bill be read a second time.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Duchy of Lancaster Bill
7.24 p.m.
Lord Beaverbrook: My Lords, I beg to move that this Bill be now read a second time.
The Duchy of Lancaster is primarily a land and property-owning institution whose revenues support the privy purse. The creation of the inheritance which became the Duchy dates from 1265 and its affairs have been administered by a chancellor of that name since 1399.
Although a royal possession since the accession of Henry Bolingbroke, the Duchy—by virtue of its earliest charters—has always been held for the sovereign's benefit separately from all other Crown lands.The original charters placed no restrictions upon the chancellor and his council in the management of the Duchy's estates. However, the legislation which was introduced early in the 18th century to restrain the alienation of Crown lands encompassed the Duchy's holdings in its application. These restrictions have either been gradually removed or substantially amended over the years. Other bodies which were originally affected by the restraints, namely the Crown Estates and the Duchy of Cornwall, are now able as a result of legislation granted for their benefit to enter into leasing arrangements for their properties which meet the requirements of the market place of today. The Duchy of Lancaster seeks no more than to be put in the same position as any other landowner—Crown or commoner—in this respect; and that is the purpose of the short Bill which I bring before your Lordships today.
The restrictions which still have an adverse effect on the management of the Duchy's properties are those which limit the letting of land or land and buildings to a term of 99 years, and which restrict the amount of rental which may be taken under those circumstances by way of a prepayment or premium. No more than one-third of the revenue receivable in this way may be capitalised.
The Duchy would not itself object to entering into leases on this basis as no landowner wishes to grant a longer term than is absolutely necessary; and it is one of the Duchy's management objectives to sustain its revenue income in preference to making capital disposals. There has, however, been a change in market conditions. The circumstances under which such leases are granted are normally those where a new building is to be erected or a substantial refurbishment of existing property is to take place. For many years builders and developers have been prepared to invest money in property on a leasehold basis in exchange for a term of 99 years. They are now no longer able to obtain funds for their investments on such a basis. Periods of 125 or even 250 years are sought according to the scale of the development and its location. The Duchy of Lancaster now finds itself in the unfortunate position of being one of the very few landowners who are unable to meet the requirements of the market place in this way.
Commercial considerations also determine the extent to which a builder or developer is prepared to pay a rental under a building lease as opposed to pay part rental and part premium. This point may be
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illustrated by way of a simple example. Suppose a block of property containing buildings which are ready for redevelopment or substantial reconstruction are worth, in their existing condition, £1 million. The costs of developing or refurbishing those buildings may amount to a further £1 million. Under a typical modern leasing arrangement the landowner contributes the former element (the land) while the building lessee contributes the latter (the finance) and executes the development. In return, each party may seek to share the rental from the completed development in proportion to the value of their original contributions. In the example given, the rental received would be shared equally.
However, the property funding market may dictate otherwise. Financing institutions may insist that, while recognising the basic division of value, they are prepared to provide funds only if the landowner's share is partly redeemed from the start by the payment of a capital sum or premium. There are no set rules for such negotiations and the attitude of the institutions varies according to market conditions. However, it is not uncommon for the stipulation to be made that something of the order of 80 per cent. of the landowner's share is capitalised. The effect of the present restrictions, which limit both the length of lease that the Duchy may grant and the percentage of income which may be capitalised, is that redevelopment or refurbishment opportunities for property which the Duchy owns may prove impossible to fund by way of a building lease.
The problem is not a theoretical one. Part of the Duchy's historic inheritance—dating back to 1284—includes properties in the Manor of Savoy. Recently a group of properties on the Strand became in urgent need of renewal. Planning permission for a new building was obtained and for over 12 months a leading firm of surveyors endeavoured to negotiate terms on the open market for the redevelopment of the property within the framework of the Duchy's existing leasing powers. This unfortunately proved to be impossible. The costs of redevelopment were beyond those which the Duchy was able to fund internally and the freehold of the site had to be sold. Although the terms of the sale itself were satisfactory and the proceeds were reinvested, were the process to be repeated over a period of years the Duchy would find that either it retained the ownership of properties which were becoming dilapidated or that it had to sell the freehold of an historic inheritance.
I refer briefly to the schedule to the Bill. It details enactments which would be repealed. I have previously referred to the fact that the original restrictions on the Duchy's powers have been modified over the years. These modifications have taken the form of extending the Duchy's powers in certain instances, either in legislation specific to the Duchy or in other legislation which referred to the Duchy. The Bill before your Lordships would make redundant these limited extensions of the Duchy's powers and consequently their repeal is sought for administrative tidiness.
In summary the Bill seeks to do no more than to put the Duchy of Lancaster in the same position—no better but no worse—than that of other landowners and I therefore recommend the Bill to your Lordships.
Moved, That the Bill be now read a second time.—(Lord Beaverbrook.)
7.32 p.m.
Lord Mishcon: My Lords, who would think that the Government had entered into some kind of conspiracy in regard to an innocent Bill of this kind which is brought before your Lordships for Second Reading? I say that because today is the day before Budget day. The Minister, I think deliberately, did not read the section from the Act which we are meant to be dealing with today. I say in all solemnity that the House should be reminded of the section of the Act passed 286 years ago—I repeat that the Bill comes before the House on the eve of the Budget. I refer to Section V of the Crown Lands Act 1702. I say with a slight smile that your Lordships ought to be reminded of the relevance of that section to the present occasion. Section V reads as follows:
"And whereas the necessary Expences of supporting the Crown or the greatest part of them were formerly defrayed by a Land Revenue which hath from time to time been impaired and diminished by the Grants of former Kings and Queens of this Realm so that Her Majesties Land Revenues at present can afford very little towards the Support of Her Government nevertheless from time to time upon the Determination of the particular Estates whereupon many Reversions and Remainders in the Crown do now depend or expect and by such Lands Tenements and Hereditaments as may hereafter descent escheat or otherwise accrue or come to Her Majesty Her Heirs or Successors the Land Revenues of the Crown in Fines Rents and other Profits thereof may hereafter be increased and consequently the Burthen upon the Estates of the Subjects of this Realm may be eased and lessened in all future Provisions to be made".
The Act was passed some 286 years ago so that the burden upon the taxpayer might be alleviated and the estates of the Crown might increase in value. Here we are, the day before the Budget day, altering the whole of this provision. Accordingly, one would have thought, it is a deliberate measure to increase tomorrow the burden upon the taxpayer. All the forecasts that have been made so far would appear not to carry out such a conspiracy, but I merely mention this for your Lordships' amusement, together with the fact that, again possibly in anticipation of tomorrow, Section VII of that old Act refers to the following:
"And to the Intent the Inheritance which Her Majesty hath of and in the said Hereditary Duties of Excise upon Beer Ale and other Liquors and of and in the said Revenue arising … in the small Branches of Her Majesties Revenue".
Again with great diplomacy and care, the Minister did not anticipate the Budget speech by a reference to these hereditary duties of excise upon beer, ale and other liquors.
Beyond these completely irrelevant observations I have nothing but support for the Bill now before your Lordships.
7.35 p.m.
Lord Houghton of Sowerby: My Lords, I am glad to be reminded by my noble friend of the terms of Section V of the Crown Lands Act 1702, because I have mislaid my copy and have been unable to consult it.
I am probably the only Member of your Lordships' House now who was at one time Chancellor of the Duchy of Lancaster. I had the responsibility of looking after the affairs for quite a time when I was in the Government of Harold Wilson in 1964. I
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arrived there just in time for the celebrations of the 700th anniversary of the beginning of the Duchy, which was quite a party at St. James's Palace. We had other most enjoyable proceedings in connection with the long history of this turbulent creation, which is now becoming more of an anachronism than ever.
The beginning of the Duchy of Lancaster was in conflict and war, the plunder of civil war, rebellions against the Crown and retaliations by the Crown. When I see the plaque in the parish church at Evesham to the memory of Simon de Montfort, the founder of English representative government, I can scarce forbear to say that he was a Plantagenet adventurer who came over here to claim the title and the estates of the Earl of Leicester. He married the King's sister, rebelled against him, defeated him at the Battle of Lewes in 1264 and then trailed Henry the monarch, around the country like a performing bear, a virtually captive monarch. The supporters of the King reassembled their forces and in counteraction at the Battle of Evesham they defeated the rebel forces and slew Simon de Montfort. That is how the Duchy began, because on his death the Crown sequestrated the whole of the lands and estates of the Earl of Leicester, Simon de Montfort, and created the Earldom of Lancaster. That is how the Duchy began.
When I first went there I was intrigued to define the origin of the estate of the Duchy. Was it war booty? Was it plunder? Was it nationalisation without compensation? Was it sheer confiscation? What was the moral basis for the Duchy? How did it come to have this preferential position in the affairs and fortunes of the Crown.
We ought to bear in mind that the proposed changes (which I fully support) will result in the increased wealth of the Duchy of Lancaster, and the whole of the revenues of the Duchy are the property of the Crown. The only substantial payment made from Duchy funds goes to support the privy purse, as my noble friend said. The proposals contained in this short Bill will add to the resources of the Duchy, will add to the resources and income of the Duchy and thereby will add to the tax-free resources available to the Crown. We must not overlook that matter. I do not begrudge it but we must bear in mind the fact that it is a relic of the days when the Crown had vast estates throughout the land and decided to put them into the hands of the state in return for a civil list provision.
During my time in office the Duchy of Lancaster was the Queen's hedge against inflation. At that time the monarch had to come to Parliament for the revision of the financial grants made to the privy purse. No monarch liked coming to Parliament to apply for more money because it could arouse all kinds of criticisms of the monarchy, the behaviour of the royal family and so forth.
While people such as William Hamilton were around—who is no longer in another place but who was vocal on such matters—the Crown did not like coming to Parliament unless it was forced. Queen Victoria hated coming to Parliament for more money because during her reign there was a strong republican element in society. No one likes to come to Parliament to ask for more money, least of all Members of the House of Commons. The privy

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purse, along with the salaries of the Members of the House of Commons, is now on a regulatory basis and it is no longer necessary to trouble Parliament for increases in pay.
The Duchy is still a substantial supplement to the resources of the monarch. The Budget of tomorrow will make no difference to the Duchy, whether or not the standard rate of income tax is reduced. Plenty of other concessions that might be made in the Budget tomorrow will not benefit the Duchy because it pays no tax. Exemption from direct taxation is part of the prerogative of the Crown. Again, I do not begrudge that. I believe that if one has a monarchy one should keep it in proper repair and at a standard of dignity and affluence consistent with the life, work and heavy responsibilities of the Head of State. I am all in favour of that. However, we have not had a Duchy of Lancaster Bill before Parliament for 68 years, and I am taking the opportunity to remind noble Lords of the existence of this unique institution which still remains as part of the history of our country.
When on social occasions I have been asked about the Duchy of Lancaster, I have explained that it is an independent territory within the United Kingdom with only taxation and foreign policy reserved to the Westminster Government. The Duchy appoints the magistrates and county court judges and it owns all the river beds. What is the Duchy expected to do with all the river beds in Lancashire? It owns 120 farms; it has the gift of 40 clergy livings; it owns nearly all the pot holes in Derbyshire and it charges people to go down the pot holes, look at them and get lost in them. The Duchy has all kinds of wonderful things at its disposal.
I tell the House quite frankly that I became bored with my Cabinet job as a link-man of Cabinet committees. I had the responsibilities of a great landowner with broad acres by the thousand and woodlands which I refused to cut down. The fact I would not cut down any trees upset the Duchy, which stated that that surrendered all the principles of good forestry. I said, "I don't cut down trees even so". I felt that the Ducal power that had been in the hands of the aristocracy of Britain for centuries was at last in my hands and I greatly enjoyed it. I went to rent dinners. It was wonderful but I still had a link job in the Cabinet and was in charge of the future of social security.
To be serious, this Bill is necessary to bring the situation up-to-date. The restrictions previously placed on the funds and uses of the Duchy of Lancaster have existed largely to restrain the monarchs from exploiting their control over the Duchy. Some monarchs almost scattered the resources of the Duchy in a profligate way and they had to be restrained. The restrictions were implemented to safeguard the capital assets of the Duchy. It is quite clear that they cannot be fully exploited within the market and property conditions of today, and the proposals are necessary.
One must not lose sight of the fact that it is an anachronism in the provisions for the royal money of today. It is still virtually a private fief and it has not been surrendered because of its origin. The rest of the Crown lands were surrendered to the state in return for Parliament's provision of a privy purse and a Civil
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List to sustain it. One wonders how long that will continue.
The Duchy of Cornwall is in a somewhat different position. The convenience of the Duchy of Lancaster to government is that there is a Chancellor of the Duchy who is nearly always in the Cabinet. He is a convenient person to whom responsibilities can be given within the government machinery and with no immediate departmental responsibility. In 1988 we are fundamentally changing the straitjacket which has surrounded the freedom of the Duchy to use its assets to the best commercial advantage.
I cannot imagine that the Chancellor of the Duchy will need to take much advantage of the new power to give charities easy terms in land tenure because in my time in office the whole of the Duchy was almost a philanthropic institution. I raised the rents of over 100 farms by one-third and was questioned as to why I was doing so. My answer was that it was in order to bring them up to the level of 1870. I said that if any farmers had a grievance against that they could go to an independent tribunal. I undertook that if it recommended a reduction the farmers would receive that, but that if an increase was recommended I would not impose it. I do not believe that many farmers appealed on those terms. The Duchy will now have the opportunity of giving more attention to charitable appeals, at least in the conditions of leasing land. I support the Bill. I greatly enjoyed my stay in office, and I have also enjoyed talking about the work of the Duchy of Lancaster.
7.48 p.m.
Lord Harris of Greenwich: My Lords, with the leave of the House I should like to say a few words about the Bill. One would have to be extremely unreasonable to say that there is anything inherently objectionable in the Bill; it is manifestly desirable and has the approval of us all. One of the advantages that it has provided is to give the House the good fortune of hearing a former Chancellor of the Duchy speaking a few moments ago. I have asked three previous holders of the office exactly what is done by the Chancellor of the Duchy. I knew that he appointed magistrates, but I was unclear as to his other responsibilities. All noble Lords now have the advantage of knowing precisely the powers of the Chancellor of the Duchy.
It is right to say that the Duchy has a strange historical background. I understand that when the Duchy was first incorporated there were no limitations on the power of the Chancellor. However, it was found necessary eventually to introduce some limitations on his powers because of the misbehaviour at the time of the Stuart monarchs.
It is useful to remember what the Stuart monarchs did which was criticised by Parliament and led to a whole series of legislative provisions through the centuries. Their greatest offence was to sell off the assets of the Duchy of Lancaster and to use the resulting capital as immediate revenue. We have heard of that matter in a rather different context in the last few years. On this occasion my noble friend Lord Diamond is not present. He normally draws attention to the fact that the present Government have an enthusiasm for selling off the family silver. That was precisely the issue which engaged the attention of Parliament three centuries ago and led to

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the beginning of the whole series of legislative processes, of which this is the most recent.
Having said that, I believe this has been an interesting debate. We have had the historical researches of the noble Lord, Lord Mishcon, and the noble Lord, Lord Houghton of Sowerby, has reminded us of the significance of the battle of Lewes in 1264 and, indeed, the significance of a most agreeable party in 1964 to which, unhappily, some of us were not invited. With those words, I support the Bill.
Lord Howie of Troon: My Lords, as always in this House, I shall be extremely brief on this matter. I am drawn to my feet by the notion that the Duchy of Lancaster goes back to the battle in 1264 and is obviously a very ancient part of our constitutional arrangements. However, I must remind the House—however gently and however briefly—that we are a United Kingdom; and apart from 1264, in 1603 there was the union of the crowns, and in 1707 there was the union of parliaments. Although the Duchy of Lancaster is of great interest to some parts of the United Kingdom, it is only of marginal interest to some other parts of the United Kingdom. We wish it no harm in that respect but we wish merely to remind constitutionalists that the Duchy of Lancaster is a very local matter and is a local matter only to part of the United Kingdom.
Beyond that, I have very little to say except to take up a point made a few moments ago by the noble Lord, Lord Harris of Greenwich, when he referred to the iniquities of the Stuarts. They were no doubt worthy of criticism. Coming from my part of the world—namely, the Lowlands, where the Stuarts were not the most popular of people—I have no doubt about that. However, being aware of the shortcomings of the Stuarts does not necessarily mean that one is enthusiastic about the activities of the Hanoverians. They were all right in their way and I dare say, in a sense, we still have them with us.
My last words are these. The inquity of the Stuarts and the follies of the Hanoverians must not lead us to imagine that the peculiarities of the younger royals of the present day are exactly what we want in our society. We have nothing to say against our younger royals apart from the fact that we think they ought to behave themselves rather better than they do.
Lord Beaverbrook: My Lords, the noble Lord, Lord Howie of Troon, will not wish me to follow him down that route. I am certainly not going to and I do not believe that he would expect it.
I am grateful to the noble Lord, Lord Houghton of Sowerby, for giving us such an interesting insight into his stewardship of the Duchy. He comes from a long line of distinguished chancellors which included my grandfather many years ago. I am grateful to the noble Lords, Lord Harris of Greenwich and Lord Mishcon. I am sure that the noble Lord did not really expect me to give the House a preview of tomorrow's Budget but I am sure he will not be too disappointed! In the meantime, I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
The Earl of Arran: My Lords, I beg to move that the House do now adjourn during pleasure until 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.55 to 8 p.m.]

Employment Bill
House again in Committee on Clause 26.
Baroness Seear Baroness Seear moved Amendment No. 121H:
Page 28, line 17, at end insert—
("(3) After subsection (1) there shall be inserted the following subsection—

"( )(a) Paragraphs (e), (f) and (g) above shall not apply to a person who—

(i) has been on local authority care within the previous 24 months;

(ii) is on hail or under supervision of a probation officer;

(iii) is mentally or physically handicapped or mentally ill but is not so ill that he is incapable of work;

(iv) is a lone parent;

(v) is registered blind;

(vi) is pregnant (but only for the period commencing 11 weeks before the expected date of confinement and ending 7 weeks after the date pregnancy ends);

(vii) is incapable of work by reason of some disease or bodily or mental disablement (excluding the temporarily sick);

(viii) is a carer;

(ix) is a refugee attending a course for the purpose of learning English (for more than 15 hours a week);

(x) would face exceptional hardship if refused benefit:

(b) in (a) above, a carer is a person who takes primary responsibility in the home for the care of a person who, because of handicap or illness needs almost continuous care.".").

The noble Baroness said: The Committee will see that this amendment puts less onerous conditions on certain categories of people in relation to the obligation to accept training places and, consequently, the risk of penalties if they fail so to do.
The list contained in Amendment No. 121H is taken from a list incorporated in the Social Security Bill with the approval of Mr. Portillo, the Minister in the other place. It may well be said by the Minister that that being so, there is no need to reproduce the list in this Bill. However, this list which makes certain modifications to the existing legislation is in regulations—it is not in the Bill itself—and because we think it is very important that these categories of people should be treated differently we should like to see them on the face of the Bill and not merely incorporated in regulations.
Members of the Committee will agree that all the people in the categories in the list suffer from exceptional handicaps of one kind or another which makes it very much more difficult for them to be acceptable or to accept the kind of training which will be on offer and that it takes them time to adjust so that they can take advantage of the training.
I have some special knowledge of the problems; for example, young people who have been in detention. The agency with which I am concerned—the Apex Trust—finds in its training programmes that in some cases it takes a considerable time for youngsters who have been in detention to adjust themselves to the outside world and to acquire the habits and attitudes which make training and subsequent employment a practical proposition. I will not go through the whole list but I think the Committee will agree that in all

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such cases there are special conditions which mean that it is much more difficult for them to perform and it is therefore inappropriate to apply the same kind of regulations that apply to normal able-bodied people without handicap.
As I have said, the special problem of these people is recognised in the Social Security Bill by amendments in the regulations to be made for that Bill by the Minister in another place, but we hope that the Government will see their way to incorporate these categories into this Bill because it is a matter of considerable importance. The problems of employment are more widespread and complex than those relating to social security. I beg to move.
Lord Trefgarne: As I have already stressed, it has been a principle of benefit legislation since 1911 that to receive unemployment benefit one must be available for work. However, I am sure we are all in agreement that it is right that some people should not have to be available for work in order to receive income support. Most of the categories presented in this amendment are unnecessary as the people concerned would not be required to be available for work in the first place to claim income support. In such cases benefit sanctions are not of course appropriate. Categories (iv) to (ix) in the amendment fall into this item.
Categories (i) to (iii) are, I agree, all particularly vulnerable sections of the community. However, they have much to benefit from government training programmes and the guidance and assistance of the employment service. People who have been institutionalised find it harder to help themselves, and we do them no favours by allowing them to withdraw from society and rest on benefit.
In the case of a disabled person the adjudication officer can ask for specialist medical advice to help him make his decision on the suitability of a training opportunity for the person concerned. In exceptional hardship cases (category (x)) the adjudication officer has discretion to disqualify for a period of less than 13 weeks (increased to 26 weeks from April) and to abate the claimant's personal income support by 20 per cent. rather than 40 per cent. in certain cases (where the claimant has £100 or less capital and there is pregnancy or serious illness in the family). Income support of course continues to be paid in full for all the claimant's dependants. It is never affected by these disqualification provisions.
I refer to some of our exchanges earlier today on the question of the 21—hour rule. I should perhaps have made it clear—I am sure Members of the Committee opposite understand already—that the 21-hour rule does not generally apply to young people but only to older people. Therefore, I hope that I can set the record straight. I hope too that I have been able to set at rest the mind of the noble Baroness, Lady Seear, as regards her amendment.
Baroness Seear: I am sorry that the Minister is not prepared to accept this amendment. Although I accept what he said in some respects, in our view these categories should be protected by being put on the face of the Bill and not have to rely, as he suggested, on the existing provision in the regulations of the Social Security Bill.
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However, considering the result of previous amendments in testing the opinion of the Committee, I shall ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 121J and 121K not moved.]
On Question, Whether Clause 26 shall stand part of the Bill?
Lord McCarthy: We gave notice that we wished to speak against clause stand part, and we are reinforced in that view by what the Minister said. In my submission he has given the game away. He said that Clause 23 was purely formal; that Clause 24 made little difference; that the functions of the Training Commission were much the same as those of the Manpower Services Commission; that Clause 25 was insignificant and that the change in the status of trainees was not important.
The noble Lord began by saying that this clause, Clause 26, was not particularly important and involved no change in principle because, from the time of the beginnings of social security legislation and back to the days of Beveridge and beyond, everyone had accepted that in certain circumstances there would be a denial of benefit. We are not saying that in no circumstances whatever should there be a denial of benefit, either in respect of people refusing to take work or refusal to take training places. We are not saying that in no circumstances whatever should there he a denial of benefit. This is all about terms. It is about the degree of humanity and concern and the degree of understanding which is operated by the representatives of the DHSS, basing their position on government policy.
We suggest that the Minister has given the game away because as regards our amendments he opposed any sensible definition of good cause. He has also given the game away because he refused our amendments in respect of the three jobs test. We argued that the present rate of disqualification (which is something like 3 per cent.) was the consequence of operating the present test. The degree of excitement and horror which was exhibited on the Benches opposite when the practical application and the consequences of the three jobs test (or the three training places test) was explained to the noble Lords opposite is an indication of how far they hope and intend that the disqualification rate should rise. This is not something for which Members opposite have any support from the Manpower Services Commission (as it was) or the TUC, the CBI or from the overwhelming majority of employers, especially the good ones, who will in fact be involved with training places. They do not want compulsion or the threat of denial of six months' benefit to be used significantly to raise the disqualification rate.
It will be the ordinary rank-and-file civil servants who will be expected to throw away their existing tests. They have developed those precisely because they are objective and precisely because they get them out of the problem of trying to decide on various subjective assessments whether to believe the employer, the worker or who to believe. The civil servants will be asked to throw away these tests in the interests of driving up the disqualification rate in order to save the cost of training and to get people off the register.

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We say that there is no justification whatever for this. In all the studies that have been done (including those carried out by the Government themselves) the overwhelming majority of young people say that they prefer work or training to the dole. The most recent study shows that all but 2 per cent. of young people and school-leavers—that is to say, one in 500—prefer work or training to the dole. We say that there is no evidence to justify this and all informed opinion is against this provision. Therefore we must oppose the Question that this clause shall stand part of the Bill.
Lord Trefgarne: Following the transfer of the jobcentre network from the Manpower Services Commission to the new Employment Service, an amendment was necessary to Section 20 of the Social Security Act 1975. In amending Section 20 to make it clear that staff of the Department of Employment as well as staff of the MSC may notify vacancies to jobseekers, we have also taken this opportunity to rectify an existing anomaly in the benefit sanctions. We are closing the loophole which allows a trainee on an approved scheme, dismissed from his or her place for misconduct, to receive unemployment benefit in full while an employee dismissed for the same reason would have benefit disqualified or reduced for 13 weeks.
This clause also provides a definition of training which makes it clear that, as has always been accepted, training includes work experience. These are broad enabling provisions. No sanctions can be imposed until a training scheme is formally approved by the Secretary of State. However, if someone persistently refuses all offers of help (which may include a place on a training scheme) it may raise doubts about his availability for work. If a person is not available for work, then he is not entitled to receive unemployment benefit. The law has always said that someone drawing unemployment benefit cannot refuse all offers of help and simply rest on benefits.
The principle of social security legislation that people claiming benefit should be available for work dates back a very long time indeed. Subsequent social security legislation passed by various governments, including Labour Governments, has upheld this principle.
Perhaps I may at this stage make a brief apology. During the course of our earlier discussions on this topic I quoted an honourable Member in another place. I have now been advised that I should not have done that and I apologise to the Committee and to the honourable Member concerned.
The social security commissioner has interpreted the principle to which I have referred to mean that people must not just be available for work but must be actively seeking it. The independent adjudication officer will take into account a claimant's whole history on benefit, his response to offers of help and inquiries about what he is doing to find work himself before deciding whether he or she is available or work.
That is the essence of what the clause is about. I invite the Committee to agree that it should remain part of the Bill.
8.15 p.m.
Baroness Seear: Through all these discussions it comes over very strongly that what the Government really believe is that there are a very large number of people who are trying to avoid getting jobs and who are skiving on benefit. Let us not pull our punches over this matter. We do not believe that the evidence supports that view. We recognise that there are some; but what appears to us to be happening as regards this legislation is that the whole approach to training and employment is overshadowed all the time by the conviction of the Government that there are a great many people who do not want to work. I challenge the Government to produce evidence of this. I ask them to look at this Bill as something which is genuinely trying to establish good training, and we should not be setting traps for people who try to evade it. Can the Minister please comment?
Lord Trefgarne: I absolutely reject the proposition which lies at the heart of the intervention by the noble Baroness. What this clause is seeking to do is simply to enshrine a legislative feature which has been on our statute book for at least 60 to 70 years. I do not believe that the noble Baroness is entitled to make the accusation on the basis of these provisions.
Lord McCarthy: If the noble Lord is right, then for goodness sake why is it necessary? It is not true that it does not apply to training. It does apply to training. The present one-in-three principle and the 2 or 3 per cent. are disallowed benefit. It works with training and with employment. If the Government do not wish to make a major change why have we Clause 26?
Clause 26 agreed to.
Clauses 27 and 28 agreed to.
Clause 29 [Crown employees and contracts etc.]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 121L:
Page 29, line 40, at end insert—
("(a) the law relating to the terms of that office or employment;").
The noble Lord said: We now find ourselves in Part III of the Bill in which Clause 29 relates to the position of those in employment of the Crown. Although this is a post-prandial discussion with scarely a crowded Chamber, I submit to the Committee that this is a very important matter. The Civil Service employment relationship in many ways has been a legal and practical problem for many years. It is a tribute to the past work of those on the official and the trade union side during this century that they have overcome all the obstacles in their path in such a magnificent way. I shall submit in a moment that this is a tradition which this Government appear not to adhere to.
I shall speak to Amendments Nos. 121L, 121M, and 121N, which I believe should be grouped together. We say about Clause 29 that it purports to clarify part of an area of doubt in the law relating to employment under the Crown but that it does so unfairly and inadequately and should receive one or more of the three amendments to which I shall refer.
The position of the holder of an office of employment under the Crown is a difficult area. On the legal side it is generally agreed that, by reason of the prerogative, the Crown enjoys a power to dismiss the civil servant (as I shall refer to such people) at pleasure. Yet paradoxically the civil servant or the established civil servant holds one of the most secure positions in the realm with a tenure far more secure, contrary to popular belief and the belief, it seems, of the Secretary of State for Education and Science, than that of university teachers. The civil servant enjoys that position for a number of reasons, and one ought to mention at least the two most important.
The first is the sophisticated system of collective consultation and bargaining which was born out of the intelligent acceptance by government of the recommendations of the Whitley Committee in the middle of the First World War. The second is the statutory support in legislation of administrations of both parties applying in part or in whole employment protection provisions in an appropriate way modified to Crown employment. These two together have woven a texture of considerable importance.
I come now to the clause and our amendments but I shall first address to the Minister a question about Clause 29. It may as well come here and it will take only a moment. People are asking why in subsection (1) there is reference to an,
"office or employment under the Crown",
while in subsection (3) there is reference to,
"employment under or for the purposes of any government department".
I do not think that that is sinister, but there are those who do. Perhaps when he comes to reply the Minister will explain that difference in drafting.
Clause 29 cures a doubt for a particular purpose. The doubt is said to be whether those in Crown employment have a contract of employment. The Minister and the Committee will not wish me to try to cite all the learned articles and textbooks that have been written on this subject. Fortunately it is not necessary to do so because one need only say that there is a doubt. Indeed, the basic elements of Crown employment are still uncertain. Here I fear I must mention a judicial decision. It is sometimes said that the Crown can alter the terms of the employment at will, as well as dismiss at will. Most authorities assume that that is so. However, in the recent case of Regina v. Civil Service Appeals Board ex-parte Bruce, Mr. Justice Roch doubted whether that is so. So there is a wide area of doubt.
Clause 29 does not cure the doubt in toto. It erects the relationship of Crown employment in a contract for one purpose and one purpose only; namely, that a third party will be liable if it induces a breach of contract. Some say that this is meant to reinforce the position of the Government in getting at those who produce books such as Spycatcher. I doubt that very much. It is quite obvious what it is for. It is to get the Civil Service trade unions.
The Government have made no bones about this in another place. They want to be sure that they can obtain injunctions against Civil Service trade unions for inducing a breach of the employment contract as it will be deemed to be, just as they can against other trade unions. This puts them in line of succession of
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their policy. They have vandalised the consensus of Civil Service employment relationships ever since they came to office. They tore up the Civil Service arbitration agreement in 1981, they banned trade unionism without consultation at GCHQ in 1984, and they now assume or presume in their legislation that the relationship is a contract—but not for any benefit to the civil servant, not for any benefit to the Crown employment relationship, but for their benefit so that they can sue trade unions in the courts.
It so happens that this matter emerged in the Bruce case, to which I have already referred. I should say immediately that the case came before the Divisional Court and that it is my understanding that it may be going to the Court of Appeal. Therefore I wish to say nothing about the merits of the case. I may be wrong in thinking that, but in case it goes to the Court of Appeal I wish to say nothing about the merits. I merely record that it is a case of a civil servant who had an appeal rejected by the Civil Service Appeals Board and attempted to obtain judicial review of that decision.
The important point is that in the course of the litigation the Crown was called upon to elucidate its position in respect of the employment relationship with Mr. Bruce. If it was a contract of employment he could not have judicial review. To put it very crudely, one can have judicial review of a matter which is a duty in public law but for private law matters—for example, a breach of contract—one must sue in the ordinary way in the High Court and pursue normal civil remedies.
The Crown took the position that Mr. Bruce could not obtain judicial review because he had a contract of employment. Not only that, but an affidavit was put in by Miss Mueller, the second permanent secretary in the Cabinet Office management and personnel office—and I quote only what is in the judgments—who was advised that she could aver in her affidavit that there was a contract of employment with the Crown. It was put to her that the Civil Service code states that the civil servant does not have a contract of employment. She said for the Crown that that did not matter.
In 1985, when they settled these pleadings, the Government said to the court that there is a contract of employment with the civil servant. In this Bill they are saying, "Well, it looks as though there is not, so we had better deem it to be one. However, we shall only deem it to be one in respect of our ability to sue the trade union". That is the ground of our first amendment. It says: if it be a contract, let it be a contract. Let the law relating to rights and duties determine the rights of both sides in the civil law, with one exception. This is important and I am sure that the Minister will have noted this in our amendment.
We say that the terms should become enforceable as a contract. That would still include the Crown's right to dismiss at pleasure. If the Minister tells me that my first amendment will exclude the Crown's right—I am sure he will not, but in case he does—he will be wrong. Our amendment includes the Crown's right to dismiss at pleasure. That is a matter of negotiation between the parties if the Crown is ever to divest itself of that prerogative.
Secondly, in the Bruce case Mr. Justice Roch rejected the Crown's submission. The web of

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difficulty becomes curiouser and curiouser. I hope that the Minister will stop me, as the noble Lord, Lord Renton, did the other day, if he feels that I am going too fast. In his decision—whether it will be upheld by the Court of Appeal we do not know tonight—Mr. Justice Roch said:
"I am prepared to accept that the Crown believes that the public interest is better served by there being contracts between itself and its civil servants…contracts which will contain terms which the Crown will be able to enforce in the courts…and that the Crown now intends to create contracts with its civil servants".
The Crown had so averred in its affidavits. But, Mr. Justice Roch held, it had not got there yet; no doubt it soon would.
The second amendment goes further than the first one. The first amendment shows our customary moderation but the second one goes perhaps a little further than is our wont. The second amendment gives all rights and remedies of such a relationship, which would of course mean remedies which would not normally bind the Crown. However, that seemed to be the Crown's or the Government's intention in the affidavit that was made. That is shown not merely by the affidavit but by the case it put to the court, which was that it wanted the whole thing to be a contract.
I must say that it is my understanding that the Civil Service unions, through the Council of Civil Service Unions, have themselves expressed a view that civil service employment should be based on contract. I also understand, not least because of the affidavits in the Bruce case but also from other evidence that one can read in the newspapers, that the Government have been preparing this position since 1985. Therefore I say: why on earth in an Employment Bill bring in a clause that is so partial and mean on its face? It gives the Government the right to sue for breach of contract as though there were contracts—just in case there is not—when the Government themselves have advocated for years now—and so it seems have the Council of Civil Service Unions—the argument that the relationship should be put on what is usually described as a decent modern footing of contract.
Again, I say that provision does not exlcude aspects of the prerogative, but once you get on to the basis of contract many small problems fall away. I shall mention one example. It is still a little doubtful whether a civil servant can sue to recover money which is due to him under the terms of his employment. Of course, if it were contract that difficulty would be cleared away. There are various problems of that nature which the parties have been talking to one another about for years. One does not understand whether the people who put forward the Bill know what is happening in the Cabinet Office. Indeed, with this Government one often feels that their right hand does not know what the other right hand is doing! Surely it is bizarre to put forward the Bill in this form. As regards our first two amendments, we expect the first, being a moderate one, to be accepted, but as for the second, which goes a little further, we expect the Minister to think about it.
There is, however, a third amendment. I am speaking to all three at once so that I may deal adequately with the case. If none of them is acceptable to the Government, they must be saying one of three things. They can say, "We don't want the
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civil servant to have any rights". I do not think they will be saying that and I am sure they will be advised not to do so. Secondly, they could by saying, "We don't want a civil law contract base for the relationship". That would of course be different from everything they told the court, but a government are entitled to a change of mind even from one day to the next. Then, thirdly, what will they say? They cannot then say that the civil servant should have no remedy in public law because that would mean returning to the first proposition, thus giving him or her no rights at all.
They have three possibilities. As the fundamental relationship they can have the civil servant with no rights or almost no rights except what statute expressly gives him. Secondly, they can have him with contract rights, or, thirdly, they can have him with public law rights. I do not favour the third alternative. I think that the fashion of favour towards the remedy of judicial review—which certainly affects my young colleagues—is one that will possibly burn itself out; but that is a minority position. Many people say that one of the great developments of the law during the last decade has been the remedy of judicial review. Judicial review is where the court will swiftly—it is a swift procedure—and with severe straight remedies deal with any failure of breach of duty in public law.
However, there is a problem in the employment area of how to ascertain what is a public law position and what is a private law position. That problem was caused by the Walsh case of 1985. That case is discussed in the Bruce case, to which I have already referred, and I shall not weary the Committee with it. However, it is as simple as this. Some public servants, including civil servants, have been regarded as being employed on the basis of public duties and others have been regarded as employed not in the Civil Service but elsewhere as under contracts of employment which involve private law remedies. It is a fairly new distinction in our law but it is there. I say to the Government that the third amendment—give or take its drafting—offers one the public law way.
Surely the Government cannot stand on Clause 29 without some amendment and be consistent with themselves. Nor indeed would it be wise now that they have raised the issue themselves, in the clause, to leave the civil servant problem where it has been for hundreds of years with doubts and obscurities. What is the point in so doing? Why not accept what the Government themselves told the court in the Bruce case—that the relationship should be and is contractual in its base (the first amendment); or if the Government do not wish to do so, why not move to a public duty enforcement?
The three amendments hold together and I hope that the noble Lords speaking on behalf of the Government will answer those points and measure their answers accordingly, because what they say is a matter of the greatest importance to the Civil Service unions and also to the official side, I beg to move.
The Earl of Dundee: I am most grateful to the noble Lord, Lord Wedderburn of Charlton, for his remarks. He said that the clause implies that civil servants do not have contracts of employment. That is not the case because the clause itself begins with the words:
"Where any person holds any office or employment".

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It is therefore entirely mutual as to whether civil servants in general have contracts of employment and whether any particular civil servant has such a contract.
The noble Lord also said, "If it be a contract let it be a contract." Although it was out of context I have great sympathy with his remarks. I do not think that the Bill is the right vehicle to legislate on the general character of the relationship between Crown servants and the Crown, or on their terms and conditions of service, which are currently subject to discussion with the relevant unions. That is not to say that I am coming down firmly in favour of putting forward the view that there should never be a contract of employment, I am merely saying that I do not think the Bill is the right place to legislate. Indeed, Clause 29(1) does leave that question open.
I turn now to address the other parts of the noble Lord's overall amendment and especially the second part where he wishes merely to give the right to civil servants to have some remedy against the Crown, as indeed other employees have against their employers. I must say to the noble Lord that I do not think there is a need for such a provision. Civil servants already have common law rights and are covered by many of the provisions of the Employment Protection (Consolidation) Act 1978. Moreover, judicial review is available in appropriate cases.
On the question of judicial review and the third of the noble Lord's amendments in which he seeks to institute judicial review as the appropriate remedy for the aggrieved party, the amendment assumes that that would be the most suitable remedy in respect of the alleged failure by the Crown. Judicial review may already be available to civil servants in appropriate cases. In other cases more appropriate remedies already exist; for example, a civil servant may sue for arrears of payment or in respect of unfair dismissal.
I was interested to hear everything that the noble Lord had to say in support of the three amendments. I do not believe that the Bill is the appropriate vehicle for effecting them. Clause 29(3) relates solely to the right of employees under Clause 7 to require their employer to stop deducting union contributions from their wages. It is known as Section 18(7) of the Trade Union Act 1984, which contains a similar right for employees to require their employer to stop deducting the political levy element of their union contributions.
The entire argument put forward by the noble Lord, Lord Wedderburn, turns upon the claim that Clause 29(1) must represent a comprehensive resolution of the issue of the status of civil servants. The Government's view is that that issue, in the round, falls to be settled in another way: it is for the two parties to the relationship to resolve that issue. It is under discussion in the appropriate forum.
Lord Wedderburn of Charlton: I thank the Minister for what he said. I was interested in the answer to the drafting problem. It does not solve the problem to say that subsection (3) is as it is because the 1984 Act is as it is. One might ask why the 1984 Act is as it is. Subsection (1) is different. However, we will no doubt have another look at that matter.
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On the substantive issues, the Minister has maintained the government tradition with regard to the Civil Service relationship. For years, the Civil Service unions had the greatest difficulty in getting the Government to discuss contracts, because the Government stood on the base that there was no contract. Suddenly, in 1985, for a congeries of reasons the Government decided that there was a contract. It is no good the Minister telling me what Clause 29 does as if it were some ephemeral spirit distanced from himself; he is Clause 29 personified when he stands at that Box. Therefore, he must tell me why he is like he is. It is no good saying that the clause is neutral because the clause is neutral. In the Minister's other lives, as it were, in government, a few years ago he said there was no contract, and then to the court in the Bruce case he said there was a contract, and tonight he says he is neutral as to whether there is a contract or not. It will just not do. The Government cannot go on with this.
I am not going to have it said—this is a serious point—that we are trying to force the issue contrary to the wishes of the parties. That will not do. Even if we won our amendment, it would be for the parties to negotitate the terms of the contract. What I am saying—the Minister has not denied this—is that the Council of Civil Service Unions wants the base of the relationship to be a contract, whatever incidents, rights and duties are already dealt with by statute. It wants a broad base. The Government told the court that they wanted the base to be a contract.
We are therefore entitled to ask why on earth in a Bill, which is called an Employment Bill, and which by the Government's choice deals with civil servants—no one asked them to do it; they did it on their own—we have a clause on civil servants? We are therefore entitled to ask: why on earth did you not say what both sides appear to want? What are the Government afraid of? The Minister is afraid that the Bill is not the right vehicle.Why not? As my noble friend Lord McCarthy said earlier, this is a case of, "It would be all right last Wednesday; it might be next Friday, but not in this Bill, which is an employment Bill". What other Bill? Do the Government have plans for a Bill on the Civil Service or some other Bill that we do not know about in the great reservoir of the noble Lord, Lord Trefgarne? Is there a stock of Bills on the Civil Service? Of course there is not.
The Government chose to deal with the matter here because they were afraid that a court which said what the Bruce case said might on some small occasion on some small piece of industrial action stop them getting a little injunction. For that, the Government risk a great deal because the Civil Service unions have noticed that suddenly without consultation, on Clause 29—the Minister will correct me if I am wrong, and he does not—the Government legislate on Civil Service relationships in order to get the unions under an injunction. Do they think that that will give rise to good industrial and Civil Service Whitley Council relationships? Do they think that that is the kind of matter for the Whitley Councils, which we saw invented, grow and blossom in the public service, where there is a great proud tradition? The noble Lord, Lord Trefgarne, may not like it, but he holds that great office in a Government who have inherited a proud tradition of Whitleyism, consultation and negotiation.

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The clause will put all that even more at risk than the Government have already. I find the response astonishing. The other night, the noble Lord, Lord Houghton, said that our debates, when the Government do this sort thing, are a farce. He was right. I have to tell the noble Earl, who replied to me nicely and with great politeness, that I appreciate the style of what he said, but the content was a farce. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 121M and 121N not moved.]
8.45 p.m.
The Earl of Dundee The Earl of Dundee moved Amendment No. 122:
Page 30, line 16, leave out from ("employment") to end of line 18.
The noble Earl said: This amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
Clause 29, as amended, agreed to.
Clauses 30 and 31 agreed to.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 122A:
After Clause 31, insert the following new clause:
("Compensation.
(1) The Secretary of State shall, within one year following the passing of this Act, make regulations by statutory instrument giving the industrial tribunals and the Employment Appeal Tribunal the power in such cases as they think fit and on such conditions as he shall prescribe to include in any sum awarded as compensation under this Act interest at the rate awarded by a Court of Record.
(2) Within one month of such regulations being made, the Secretary of State shall present to Parliament a report on the relationship between compensation granted by industrial tribunals and the Employment Appeal Tribunal under this Act and in other jurisidictions, with such recommendations concerning interest as he considers appropriate.")
The noble Lord said: This is a quiet probing amendment which asks the Government for a statement on a matter of great importance on the law relating to industrial tribunals. In effect, it asks that compensation which is payable in the tribunals under this Act should carry interest at the normal rate.
The Committee will understand that the amendment has to be drafted in the way that it has because it could not be drafted to cover the entire jurisdiction of the industrial tribunals. One therefore has to ask the Government whether they will include interest on the compensation under this Act and whether immediately afterwards they will make a statement and recommendations dealing with the broad position. As I understand it, that is in order and within the Long Title; so I am advised. There is already a power by order to allow complainants to obtain interest on compensation from an industrial tribunal award under Schedule 3 to the Employment Protection (Consolidation) Act. But the trouble is that the power has never been exercised by the Government. Mr. Justice Popplewell, the president of the Employment Appeal Tribunal, only last year himself called the failure to do this a blot on the administration of justice. The fact is that litigants, even those who succeed before industrial tribunals, are then held up by appeals and finally get their money perhaps a year later. In one case I know of, it was two years later and was some £2,000 which should really have carried interest and which in a
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court of record would normally have carried interest in the rest of our jurisdictions.
The industrial tribunal report by Justice in 1987 says in paragraph 3.38:
"We do recommend as a matter of urgency that the Government should make this order."
This amendment is merely to ask the Government, please will that order be made, or will they accept this amendment and bring in interest on compensation for those involved in industrial tribunals generally under this amendment? I beg to move.
Lord Trefgarne: The Committee will no doubt begin to tire of me saying that there is no need for the amendment. I am afraid I have to repeat that observation as regards this amendment. But the noble Lord is not concerned about that, I think. The fact is that serious consideration is currently being given to the possibility of introducing just the sort of scheme that the noble Lord has described. I am afraid I cannot go any further than that at the present time, but I hope that the noble Lord will therefore accept that what he proposes is being given very serious consideration.
The amendment has, however, highlighted the fact that the Bill as drafted makes no provision for awards made by the Employment Appeal Tribunal under Clause 5 to be treated in the same way as industrial tribunal awards under that clause so far as interest is concerned. In other words, under the Bill as it now stands EAT awards under Clause 5 could not be made to carry interest, whereas tribunal awards made in similar circumstances could be made to do so.
This is an anomaly which needs to be remedied and the Government's Amendment No. 123 will ensure that awards made by the EAT under Clause 5 may be made to carry interest in the same way as industrial tribunal awards, including those made under Clause 5 and awards made by the EAT under Section 5 of the 1980 Act. I hope that this will reassure the noble Lord and that he will not want to press his amendment.
Lord Wedderburn of Charlton: No, I shall not press the amendment, but the noble Lord said two things of great importance. The first is splendid and admirable, that the Government are giving serious consideration to bringing in interest on tribunal compensation awards, as I understood it. I hope that that serious consideration can be given before this Bill is enacted. It seems to me that if there is this serious consideration then there is no reason why it should not be done and any loose ends could be tied up if they need tying up.
The second point is the noble Lord's announcement or advertence to Amendment No. 123. Of course, this means, as I understand it, that awards falling from the Employment Appeal Tribunal would be in a slightly favourable position compared with, say, awards on unfair dismissal in the tribunals themselves. I am not sure of that, but I thank the noble Lord for raising the point. Perhaps he will say a little more on it when he moves Amendment No. 123, and perhaps we could look at it on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Renton): Perhaps I may put Clauses 32 and 33

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together. The Question is, that Clauses 32 and 33 stand part of the Bill?
Lord Houghton of Sowerby: If the Deputy Chairman of Committees will permit me, I wish to make a comment on Clause 33.
The Deputy Chairman of Committees: Very well, I shall put Clause 32 first and then we will move on to Clause 33. The Question, is, that Clause 32 stand part of the Bill? As many as are of that opinion will say—
Lord Houghton of Sowerby: Clause 33—
The Deputy Chairman of Committees: I have put the Question that Clause 32 stand part of the Bill, if the noble Lord will allow me to do that.
Clause 32 agreed to.
The Deputy Chairman of Committees: The Question now is, that Clause 33 stand part of the Bill?
Lord Houghton of Sowerby: May I raise a point of order on what has just been done? I have given notice that I wanted to raise a matter on Clause 33, so that if we are discussing Clause 33 stand part then I wish to say something before that Motion is put. Am I in order?
Lord Trefgarne: The noble Lord is entirely in order. I believe the Lord Chairman will now put the Question that Clause 33 stand part of the Bill and the noble Lord can make his speech.
I understand that the Question has now been put. The House is awaiting the noble Lord's intervention.
Lord Houghton of Sowerby: I am much obliged to the noble Lord. I beg the pardon of the noble Lord, the Deputy Chairman of Committees.
The only point I wish to raise is on the first line of Clause 33 which states:
"This Act may be cited as the Employment Act 1988."
I have not put an amendment down at this stage but I suggest to the Minister that it is not an employment Act, it is mainly a trade union Act. To the extent to which it is something else besides being a trade union Act, it is a training Act. Indeed, one section of the Bill refers to employment and training. But I know there is something to be said for brevity in the Short Title of a Bill, but all previous Bills which contain as much reference to trade unions as this Bill have at least had the description "trade union" in the Short Title.
If the noble Lord looks at the grand total in this Bill he will see that the greater part of it relates to the internal affairs of trade unions, their ballots, their ballot papers, what they may do to their members. It is not employment. Indeed, employment as employment is scarcely in the Bill at all because the training part of the Bill refers in great detail to the new concept of training which only in certain circumstances will be employment.
So I hope that there is no intention behind this Short Title "Employment Act 1988" to obscure the reality of the fact that this is the fourth trade union Act in succession. I think we really ought to know the measure of attention which the trade unions have
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received at the hands of Parliament and the Government in the past few years. It will be seen that this is the government of trade unions. The Bills have done things to trade unions. Not all of them have been fully acceptable, to put it mildly, but I do not wish to raise any controversy at the moment except that of the adequate and more truthful description of the Bill. I hope that the noble Lord will consider this before we come to the final stages.
Lord McCarthy: I should like to support the noble Lord, Lord Houghton of Sowerby, in this and to say that of course this is not the first time it has happened. In 1980 we had an employment Bill which was also a trade union Bill. It took away the right to secondary action and restricted the trade union right to union membership agreements and did all sorts of other things. It was a trade union Bill.
Then in 1982 we had another employment Bill which was also a trade union Bill. It took away protection for trade unions against actions in tort. It was a very important trade union Bill. Only in 1984, for some reason which has never been clear to me, did the Government introduce a trade union Bill which they called a trade union Bill. That was a trade union Bill, but no more and no less a trade union Bill than in 1980 and 1982. It is not even the fourth; it is really the fifth. In 1986 we had the Wages Act, which was largely an attack on trade unionists and their right to collective bargaining and to represent their members in councils. Therefore, this is the fifth trade union Bill, and only one of them has been given the proper title.
9 p.m.
Lord Trefgarne: I could elaborate at length upon the benefits to employment which will flow from the Bill, and indeed all the previous Acts which have been passed, having similar titles; but I would weary the Committee unduly if I did that.
Perhaps I may say to the noble Lord, Lord Houghton, that those who want to know in detail what the Bill provides should look to the Long Title. The Short Title can only express the purpose of the Bill in a word or two. I hope that the noble Lord does not think that there is any intention to deceive him or anyone else. That is not the case.
Clause 33 agreed to.
Schedules 1 and 2 agreed to.
Schedule 3 [Minor and consequential amendments]:
Lord Trefgarne Lord Trefgarne moved Amendment No. 123:
Page 38, line 36, at end insert—
("(4) In paragraphs 18 and 21A of Schedule 11 of that Act (rules and powers of the Employment Appeal Tribunal), after the words "section 5 of the Employment Act 1980", wherever they occur, there shall be inserted the words "or section 5 of the employment Act 1988"").
The noble Lord said: I referred to Amendment No. 123 a few moments ago, and indeed earlier, during the course of our deliberations in considering Amendment No. 38. I believe that the noble Lord accepts the purpose of the amendment. However, perhaps I may say a word in support of it.
It is essentially a technical amendment concerning the method of applying for compensation in respect of unjustifiable discipline. In brief, it ensures that if the individual makes his application for compensation to the Employment Appeals Tribunal and that tribunal decides that it should really have been made to an industrial tribunal because the union has revoked the finding and reversed the penalty, the EAT will have the power to remit the application to a tribunal. Similarly, a tribunal will be empowered to remit applications to the EAT.
Without the amendment, the EAT could only reject the application, leaving the individual to make a new application to an industrial tribunal. That would be unnecessarily bureaucratic and, depending upon how long the EAT took to come to its decision, could mean that the individual lost the right to apply for compensation because of the time limit specified in Clause 53. I hope that that explanation has helped the Committee, when added to the points which I made earlier on that matter, and that the amendment will be agreed.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 124:
Page 39, line 23, leave out from beginning to ("have") in line 24 and insert ("any provision of section (Election addresses) or 14 of the Employment Act 1988, the requirements imposed by virtue of that provision").
The noble Lord said: I have spoken to Amendment No. 124. I beg to move.
On Question, amendment agreed to.
Lord Basnett Lord Basnett moved Amendment No. 124A:
Page 39, line 24, at end insert—
("( ) After section 1(2) of that Act, there shall be inserted the following subsection—
"(2A) Where a trade union is formed by amalgamation under the 1964 Act, the reference to 'some other position in that union' in subsection (1) above shall include a position in either or any of the trade unions which have amalgamated."").
The noble Lord said: I should like to move Amendment No. 124A in the name of my noble friend Lord Mulley, who is not able to be present this evening. In moving the amendment, I should also like to speak to Amendment No. 135D. The amendments relate to a situation in respect of trade union amalgamations which I do not believe was foreseen either by the Government or by the trade unions until now, when certain amalgamations are currently coming to the fore.
The intention behind the first amendment is to provide that on amalgamation of two or more trade unions the members of the executive council of the new union who previously sat on the executive council of one of the other unions, if the rules of that new union so provide, should serve out their unexpired term of office.
The second related amendment provides that those currently permitted by the transitional provisions in the 1984 Act to serve on their executive council, notwithstanding that they have not yet been elected in accordance with that Act, may likewise serve the remainder of their period of office, should their trade union amalgamate with another.
It is a widespread view both in the Committee and beyond that amalgamations are to be welcomed as reducing this country's rather high number of trade unions. Since the Trade Union Act was passed, no full-blooded amalgamations have taken place. However, some are now in advanced stages of negotiation, while others are planned. The practical difficulties posed by the wording of the 1984 Act are now being encountered.
It is being realised, not that the one year period of grace is inappropriate, but that disregarding the pre-amalgamation elections in amalgamated unions is causing serious practical difficulties which understandably were not foreseen four years ago. Unions are now finding that the flexibility necessary for the happy marriage of two trade unions is being constrained by the fine print of the 1984 Act. Let me illustrate that with a concrete example.
Talks to amalgamate the GMB, of which I am a member, and APEX are at an advanced stage. On amalgamation, it is proposed that a white collar section should be established in the new union by combining the white collar members. That section will, quite lawfully, have reserved seats on the central executive council of the new union. However, the crucial point is that it is proposed that the voting for the election of the holders of those seats should not be restricted to the members of the white collar section of the new union. That is because those involved in the negotiations feel that sectional actions rather than just sectional seats would lead to sectionalism and possible fragmentation. They make no judgment or comment as to the operation of such a procedure in other trade unions. They simply believe that the history of their own unions shows that integration following amalgamation would best be achieved by not having sectional elections.
I stress to the Committee that both unions have complied with the Trade Union Act 1984. It is proposed that the new union should come into existence on 1st January 1989. For a transitional period its executive council would consist of the current GMB central executive council and seven members of the executive council of APEX. In 1991, which sees the expiry of the GMB executive's four-year period of office, elections would be held for the central executive council of the amalgamated union in compliance with any law then existing. The period between 1st January 1989 and the start of the election process in mid-1991 will, it is hoped, give APEX and GMB members a chance to get to know each other so that there is less likelihood of the 1991 election and subsequent elections being fought solely on the basis of loyalty to their former trade union rather than their new one, which is an essential prerequisite for creating a single trade union.
However, in its current form the Trade Union Act would prevent that happening. It would require elections to be held during 1989 so that the executive council of the new union would take office on 1st January 1990. It is simply impossible for the members of the two unions to get to know each other in that period. Both unions agree that the obvious and inevitable consequence of early elections would be to face them with a choice between two undesirable arrangements: either the APEX candidates would be swamped by GMB votes—and neither union wants that because they would not be properly represented

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in the white collar reserve seats—or, to prevent that happening, the 1989 elections would have to be organised on the basis of sectional voting, thus establishing precisely the divisive pattern which both unions wish to avoid and which could take years to repair.
It cannot be right that two unions which comply with a law which is designed to ensure direct elections should face such a dilemma. Our amendments in no way endanger the principles of the 1984 Act. What is proposed is, first, a technical amendment to Section 1 of the 1984 Act which would treat a person properly elected to the executive council of one union as properly elected to any equivalent post in the new amalgamated union. That would enable an executive council member elected in one trade union to serve out the permitted term of office in the new union, provided of course that the instrument of transfer and the rules of the new union so provide.
The second consequential amendment is to Section 9 of the 1984 Act. Among other things, Section 9 provides that an executive council member who is elected within five years prior to the commencement of the Act may hold office for a maximum period of five years, notwithstanding that she or he was not elected in strict accordance with that Act. The second amendment therefore simply permits the unexpired part of that five-year period to be carried forward into the amalgamated union. In due course the relevance of the amendment will lapse through the passage of time.
These two amendments are minor in the sense that they are fully compatible with the principle and operation of the 1984 Act. I am advised that they cannot possibly be used by any person or union seeking to avoid or evade that Act or indeed any provision of the current Bill. I commend to the Committee these amendments, which acknowledge the genuine practicalities of the administration and organisation of trade unions. I hope that the Minister can accept the amendment, or, if not, that he will consider it. I beg to move.
Lord Trefgarne: I hope that I can very quickly help the noble Lord on this matter. The Government have considerable sympathy with this proposal. We have not yet been able to reach a final conclusion on the matter. If the noble Lord is prepared to withdraw this amendment and not move his subsequent one, I shall undertake that that consideration shall be speeded up to the maximum extent possible with a view to reaching a conclusion before the next stage of the Bill, when it will be possible either for the Government to table an amendment should it prove necessary, or indeed for the noble Lord to table one himself.
Lord Basnett: I am sorry but I am not quite clear. Did the Minister wish me to withdraw the first amendment?
Lord Trefgarne: I am proposing that the noble Lord should withdraw this amendment and not move his next one.
Lord Basnett: I see. I withdraw the amendment and shall not move the next.
Amendment, by leave, withdrawn.
9.15 p.m.
The Earl of Dundee The Earl of Dundee moved Amendments Nos. 125 to 129
Page 39, line 50, leave out ("subsections (2) to (7) of section") and insert ("section (Election addresses) or").
Page 39, line 51, leave out ("and").
Page 40, line 4, leave out ("subsections (2) to (7) of section") and insert ("sections (Election addresses) and").
Page 40, line 5, at end insert—("and
(c) after subsection (12) there shall be inserted the following subsection—
"(12A) The requirements of subsections (1) or (12) above that a person making an application under this section in relation to an election or seeking to enforce obedience to an enforcement order in relation to an election must be or have been a member of the union at a particular time shall not apply where the person who makes the application or seeks to enforce obedience to the order is or was a candidate in the election.").
Page 40, line 10, leave out ("subsections (2) to (7) of section") and insert ("sections (Election addresses) and").
The noble Earl said: I have already spoken to Amendment No. 125. I beg to move.
The Deputy Chairman of Committees: I understand that Amendment No. 125 goes with the other amendments up to and including Amendment No. 129. That being so, I propose to put those amendments to the Committee en bloc.
On Question, amendments agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 130:
Page 40, line 11, leave out ("and")
The noble Lord said: These amendments are again technical amendments which make clear the Government's original intention that the existing exemption for those nearing retirement under Section 8 of the 1984 Trade Union Act should be available only to those whose most recent election was by the fully postal method. I beg to move.
The Deputy Chairman of Committees: I understand that this amendment goes with Amendment No. 133, but I shall put Amendment No. 130 separately to the Committee.
Lord McCarthy: I am astonished. Did I hear the noble Lord aright, that he has moved Amendment No. 130 and spoken to Amendment No. 133? Is that correct? It is amazing. These Benches do not take the view that this is a technical amendment. This is the amendment above all for which there is no need. This is the amendment which is unnecessary, unwise and unacceptable.
Amendment No. 133 makes a distinction which the Minister has not sought to justify and which I should like him to justify. There is a particular distinction made between on the one hand an executive member—a member of a principal executive of a trade union—who has a vote, who has 10 years' service and has at most five years to his retirement (I repeat, who has a vote), and does not require a new election because he has a vote, and on the other hand an executive member without a vote who is in a precisely similar position but will require an election. We have to consider why there has been no satisfactory explanation for that peculiar characteristic and this amazing amendment.
We believe that this amendment represents the intervention into a public Bill of private interests and

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private prejudices. I ask the Minister to think again. I regret that we may have to discuss this matter for some time but I had expected a full argument from the Minister. I certainly did not expect him to tell me that this was just a technical amendment. I am afraid it means that I have now to explain to the Committee at somewhat greater length what is involved.
I should like to begin by reminding the Committee that neither we nor the trade unions were ever consulted about the implications of this amendment. It was not mentioned in the manifesto, nor was the matter raised in another place, not was it in the Bill when it was introduced into this Chamber. It was not mentioned by the Minister on Second Reading, although I suggest, and hope to be able to show, that since our first day in Committee there is a sense in which we have been discussing this amendment and the Government's objectives in proposing it.
I apologise for going into such detail at this late hour but I am afraid that the story begins with the comments of the noble Lord, Lord Wyatt of Weeford, whom I am sorry not to see in his place, and the answer given by the government Ministers. The record begins in Hansard of 8th March at col. 605. The Committee will remember that the noble Lord, Lord Wyatt, began by making various general allegations about the presidential elections in the National Union of Mineworkers. I apologise to the noble Lord, Lord Houghton, for the fact that we cannot avoid mentioning the name of Mr. Scargill.
The noble Lord, Lord Wyatt of Weeford, alleged that there had been an election which Mr. Scargill had won on a turnout of 118 per cent. We discover in our subsequent investigations that in fact the turnout was 89 per cent. and the only reason that it looked like 118 per cent. was because the noble Lord, Lord Wyatt of Weeford, did not count the votes from those miners who were on holiday. Nevertheless, despite that fact, the noble Lord went on to suggest malpractices and jiggery-pokery. At col. 606 in Hansard the noble Lord, Lord Wyatt, said:
"As the proposed law stood, if the union retirement age had been lowered to 60 Mr. Scargill could have used the 22nd January election to stay in office for 10 years less 11 days before he reached the age of 60. I understand that the Government have altered that provision"—
and he was right. That is what we are doing now so that he would not now be able to stop in office for 11 years but only seven years less 11 days.
The noble Lord, Lord Wyatt of Weeford, is slightly wrong in his detailed application of this clause; but, broadly speaking, he is right. The Government have introduced this clause. It changes Mr. Scargill's device; it rules it out. The noble Lord, Lord Wyatt, was slightly wrong on the details but as usual in principle he is correct except that this amendment not only applies to Mr. Scargill of the National Union of Mineworkers, but to several other people, most notably Mr. Todd of the Transport and General Workers Union. He will also be covered by this amendment although there were never consultations with the TUC and it was never mentioned until this moment in the Committee.
When the noble Lord, Lord Wyatt of Weeford, raised this question, the noble Lord, Lord Trefgarne, was not prepared to come clean—if I may put it that way—on the implications of this amendment.
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However, he went some part of the way. He pointed out that the amendment of the noble Lord, Lord Wyatt, would not deal with what they termed the Scargill problem, and that it would "miss the target" to quote the noble Lord. At col. 610, the noble Lord said:
"To cite the case of Mr. Scargill, who was referred to earlier this afternoon, he could claim that his election satisfied the workplace requirements of the 1984 Act and that he was thus entitled to stay in office for five years. Whatever amendment was made to the transitional provision in Clause 12(2)"—
the amendment that the noble Lord, Lord Wyatt, was moving—
"would not therefore affect him"—
that is Mr. Scargill. I quote again:
"It would, however, affect many others who, perfectly genuinely, have held elections which did not conflict in any way with the statutory requirements at that time and who have every expectation that they can remain in post for the full term of office … The Government believe, therefore, that the amendment has undesirable effects while failing to hit the target at which it is aimed".
The Government had this amendment which hit the target and avoided, as they see it, the perfectly genuine article. When turning down our amendment to include the exclusion of non-elected general secretaries who had five years to serve, the Government returned to how they had drawn up their amendment. At col. 612 the noble Lord said:
"It is important, however, that the effective implementation of the clause"—
that is Clause 12—
"should not be unreasonably delayed, and any extension of the pre-retirement exemption would be likely—given the age profile of those in scope—to have a disproportionate effect".
Members of the Committee will remember that this was too much for my noble friend Lord Wedderburn who asked what the Committee was to make of the "age profile of those in scope". The noble Lord, Lord Trefgarne, reacted by suggesting that he had only just seen those words in his brief. He said:
"When I saw those words I feared that the noble Lord might rise to his feet in response to them; and he has.
"Given the number of people involved—which is not enormous—it is fairly easy to ascertain how old particular people are and therefore to form a view on the broad effect of such a provision on the range of people involved."
At that point the noble Lord, Lord Murray, asked whether we could have the names of those people involved. Denied access to the Box at that moment, the noble Lord, Lord Trefgarne, said, somewhat unguardedly:—
"Perhaps I can reflect upon that request. Off the cuff I cannot think of any reason why we should not".
At that point, noble Lords will remember that there was much scribbling in the Box, much passing of paper and at col. 614 the noble Lord, Lord Trefgarne, corrected himself and a strange interchange took place, which is critical for our argument and therefore it needs to be quoted at some length. The noble Lord, Lord Trefgarne, said:
"I am advised that the class concerned was not determined by reference to the ages of individuals, as perhaps I inadvertently suggested to the Committee. However, it is clear that most of those in scope will be relatively aged. Having arrived at the position, when faced with the amendment the Government were bound to consider what the impact would be in the light of the known facts."
I said at that stage:
"I hope that the noble Lord will make himelf absolutely clear. I have written him down as saying that 'most in scope were aged'. Is that right? How did he know that they were aged if he did not find out their age?…
"Lord Trefgarne: Generally, by looking at their faces.".

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At this point the noble Lord, Lord Murray of Epping Forest, said:
"I think that all we are anxious to know is what the Minister means—"
indeed we are—
"I think I am quoting him correctly—by 'the known facts'? Will he publish 'the known facts' to which he has referred"?
The noble Lord, Lord Trefgarne, by this time was thinking better of it:
"The known facts are largely published already because there are many books of reference in which the names of distinguished general secretaries appear and most of them put in their age. I daresay that their ages are accurately entered, although equally I daresay that lady general secretaries often decline to do that, and quite right too".
Baroness Turner of Camden: Shame!
Lord McCarthy: Shame!
Lord Wedderburn of Charlton: Disgraceful!"—[Official Report, 8/3/1988; cols. 606–615.]
That is the end of the quotations and there the matter rests; but it points to a very significant and important issue which we feel we must raise and which we feel goes to the heart of the legitimacy and constitutionality of the Bill. It is still unexplained. I ask the Minister now how the change in the position of the non-voting, as against the voting, members of the executive (in particular the general secretary and the president)—this is the issue—relates to the other forms of exemption?
The Minister cannot say that he has had no notice of this because I very carefully in an amendment I put down in a previous debate listed for him the different categories and degrees of exemption which the Government are introducing into the Bill. First, there is the position of executive members who are not employees but who have one year to serve and who are exempt from the provisions of the Bill, as against those with two years to serve who are not exempt. Secondly, there are those executive members who are employees with five years to serve, who are elected by postal ballot, who have a vote and who are exempt from the provisions of the Bill. Thirdly, there are those EC members who are employees with five years or less to serve, who are elected by workplace ballot but who, because they have a vote—or rather that is the only distinguishing characteristic—are not covered by the Bill.
Those are the three categories, as against the two categories who are affected. Those with no vote with up to five years to go who are elected by workplace ballot, and now we are told must be re-elected, include Mr. Scargill and Mr. Todd. Those with no vote with up to three years to go who are elected by their executive or their annual conference and must be re-elected also include some notable people such as, for example, Mr. Alan Sapper, Mr. Clive Jenkins and a gentleman who in this Committee has always so far been called "Mr. Jill" by the Government for reasons that I do not know. He is of course Mr. K. Gill, ex-TASS. We are asking the Government what are the distinguishing characteristics of the first group as against the second. How does it arise that those whom the Government must assume to be more powerful because they have votes can rest their legitimacy under the Bill upon a workshop ballot? That is set against the case of those whom the Government must assume to be less powerful because
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they do not have a vote and must have a postal ballot under the terms of the Bill.
Our fundamental submission is that that goes against the basic principles of the Bill. Surely it imposes a test which is not germane to the Bill. Surely, in constitutional terms and in terms of possible hybridity, this distinction rests upon a class which is not genuine. The central principles of this Bill, and the 1984 Act before it, must be to include non-voting members of executives and make them subject to the general provisions of the 1984 legislation. That is the general principle that is germane to the Bill.
It is not a principle of the Bill to exclude those with votes because of what was done in the 1984 Act. Presumably the 1984 Act began with those who had votes because they were more powerful. This Bill is supposed to catch up with those who have no votes because it is a step-by-step approach. In the absence of a genuine, rational and overall explanation as to why those who are included are included and those who are excluded are excluded—and it is not merely a technical matter—we must look back at those remarks made by the Minister as to the profile of those who were included.
We must look back at his remarks about the target; to whom the target was directed; who the target is hitting; and who is hit in the central zone of the target. There we find Mr. Scargill, Mr. Todd, Mr. Sapper, Mr. Jenkins and Mr. Gill. We find those individuals who have something in common. Although they cannot conceivably be called a genuine class they are all alleged Left-wing officials who are particularly unpopular with the Government. We do not say that this makes it a hybrid Bill; we say that we would like the Government to tell us why it is not a hybrid Bill. We do not say that this disastrous, unfair clause is included here simply for spite because they have heard from the noble Lord, Lord Wyatt of Weeford, or from someone else, that Mr. Scargill has found some way round the Bill. We want the Government to tell us why we should not believe that, because that is what the facts suggest.
Lord Trefgarne: I am sorry that my opening remarks did not sufficiently explain to the noble Lord the purposes of the amendment. We discussed this issue at great length during an earlier stage of the Bill and I thought that the Committee would prefer a shorter rendition of those arguments in relation to this amendment.
As the Bill now stands, Section 8 of the 1984 Act will be amended so that members of the principal executive committee will not be required to be elected if they are within five years of retirement age; their previous election satisfies Section 2 of the 1984 Act and is held not more than 10 years before retirement age; they have been full-time employees of the union for at least 10 years; and, apart from the statutory election requirement, they are entitled to hold office until retirement.
It is clear from that explanation that one of the main conditions is that the individual's previous selection must have satisfied Section 2 of the 1984 Act. This section includes a requirement that the election be conducted by the fully postal method, and it has always been our intention that this should

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continue to be a principal condition in qualifying for the exemption.
However, although it is not clear on the face of the Bill, individuals who were required to be elected under that Act can satisfy the requirements of Section 2 by means of an election which satisfies Section 3; that is to say, a ballot conducted at the workplace. It is clearly wrong that individuals who are subject to that Act and who have been elected in accordance with its provisions should be penalised when it comes to the retirement exemption or that there should be any doubt as to whether or not they qualify.
Accordingly, the amendment clarifies the fact that where the position to which an individual was elected was that of a voting member of the executive at the time of the election, he can qualify for the retirement exemption by means of a workplace ballot held before the fully postal requirement of the Bill comes into force. The effect is that once the amendment is made and the provision enforced, those currently within the scope of the 1984 Act (that is to say, voting members of the executive who were elected at a workplace ballot) can continue to benefit from the retirement exemption, but others cannot benefit unless their election was fully postal.
The retirement exemption applies to all elected members of union executives; there are no doubt thousands of them. It would need the availability of resources beyond those of the department to do as some noble Lords have suggested which is to draw up this amendment so as to benefit a favoured few and disadvantage others. The amendment does no more than confirm the clear intention of the Bill that in future only fully postal ballots provide a basis for claiming the retirement exemption. However, it is only right to make clear that for those subject to the requirements of the 1984 Act, the existing provision that Section 2 can be satisfied by a ballot held at the workplace in accordance with Section 3 is not affected. That retirement exemption has always been directed at those who have been through an election, appointed members of PECs, who therefore continue to be unable to benefit from it. However, the Bill provides an entirely new retirement exemption in Clause 12(4) which all those within two years of retirement age when the extended election requirement comes into force will be able to benefit.
The noble Lord, Lord McCarthy, asked why a person with a vote should be entitled to rely on a workplace ballot, whereas those without votes should not. The reason is that a PEC member with a vote will be relying on a workplace ballot which was required to satisfy the requirements of the 1984 Act and was open to the procedures of challenge and enforcement provided by that Act.
At the request of the noble Lord I have given a much fuller explanation of this amendment which I hope the Committee will now accept.
Lord Wedderburn of Charlton: Before the noble Lord sits down, I should like to say that we appreciate his explanation. However, will he address himself rather more to paragraph (b)? I appreciate that he has said something about paragraph (a). Albeit that he says that thousands of people may fall within (a)—I do not know about that but it may be so—is it not the case within (b) that the paragraph is
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consistent only with the selection of a very small number of persons occupying such positions? Will he explain why that test is applied to general secretaries and presidents in paragraph (b)?
Lord Trefgarne: This is an issue which we discussed at considerable length in response to the amendments of the noble Lord, Lord Wyatt, a few days ago. Perhaps I may consider what the noble Lord has said. If I have anything to add, perhaps I may write to him.
Lord McCarthy: I should like to ask the noble Lord to consider something else. He spells out the case and spells out the Bill but he does not make the case. He says that these characters who have votes but who are covered by a workshop ballot can rely upon the Act. Of course they can rely upon the Act. The Minister makes the Act. We want to know the reason why the Government have decided that they are allowed to rely on the Act, whereas those who have no votes—the general secretaries and presidents who turn out to be a very small number—cannot rely on workshop ballots.
Lord Trefgarne: I have just explained that to the noble Lord in response to an earlier point.
Lord Wedderburn of Charlton: With respect to the noble Lord, I am always delighted to have correspondence with him, but he says that we have approached this matter on a previous sitting and therefore, he must know all about it because he was ready to debate it then. We were not. We have waited until now to debate the issue fully. Therefore, with great respect to the Minister, it is not good enough when one asks a central question to be told by him that he will write to us.
I put the question to the Minister again, in a slightly different form. Is it not the case that paragraph (b) is consistent only with the selection of a clear and small number of individuals? That is why it is there in what I might call, to summarise my noble friend Lord McCarthy's argument about voting and non-voting, its upside down form. It is inconsistent with the principles of the rest of the Bill. Is it not the case that that group comprises of persons whose private interests are therefore affected in a clear way by a paragraph— I insist on speaking of paragraph (b)—which purports to be the definition of a class? Is it not the case that this matter should be considered immediately, because the Minister will know that I am referring to a most serious matter?
The reading I have done makes me prepared to say, as a personal view—my noble friends and I have not had time to consider this at great length—that there is a clear prima facie case that this class is not a genuine class; that this Bill is therefore being used to affect private interests in a public Bill. The well-known principles of this and the other place are that where individual citizens find that their private interests are being manipulated in this way they have a right to give evidence to this Chamber. If there is a prima facie case of that sort it would be surprising if the Minister is prepared merely to write to me. He may not wish to take a final view; but we are asking him whether he has anything more to say about the way the class was drawn in paragraph (b), because so far he has added nothing at all.
Lord Trefgarne: At an earlier stage of this Bill the responsibility for raising individual cases rested not with the Government but with certain other Members of this Chamber. I wish to make it quite clear that this Bill is not drafted in a way that is aimed at some specific individual; it is aimed at a class of persons described in the amendment, clarified in particular by paragraph (b) to which the noble Lord referred. There is no question of this Bill being aimed at a particular person. It is aimed at the categories of persons described in the amendment, which we believe will form a relevant and important part of the Bill. I am not in a position to expand further upon the description given in the amendment which I believe is clear beyond peradventure.
However, given that the noble Lord has raised some doubts of his own, I have undertaken to consider whether there is any further clarification that I can give to the noble Lord, which undertaking I am happy to confirm.
On Question, amendment agreed to.
The Deputy Chairman of Committees: In calling Amendment No. 131, I proposed at the same time to put Amendment No. 132, which I understand goes with it, unless there is any objection.
The Earl of Dundee The Earl of Dundee moved Amendments Nos. 131 and 132:
Page 40, line 13, leave out ("section") and insert ("a provision of section (Election addresses) or")
Page 40, line 15, leave out ("of subsections (2) to (7) of the said section 14") and insert ("imposed by virture of that provision")
The noble Earl said: These amendments have already been spoken to. I beg to move.
On Question, amendments agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 133:
Page 40, line 16, at end insert ("; and
(d) after the said subsection (4) there shall be inserted the following subsection—
"(5) Where any person holds any such position as is mentioned in paragraph (a) of subsection (2) above by virtue of an election held at any time before the coming into force of section 13(2) of the Employment Act 1988 (requirement of postal ballot), section 3 of this Act (non-postal ballots) shall be disregarded in determining for the purposes of that paragraph whether any election is an election in relation to which section 2 of this Act has been satisfied, unless the position to which that person was elected in that election was, at the time of the election, either—

(a) a position as a voting member of the principal executive committee of a trade union; or

(b) a position by virtue of election to which the person elected would become such a voting member." ").

On Question, amendment agreed to.
9.45 p.m.
Lord Trefgarne Lord Trefgarne moved Amendment No. 134:
Page 40, line 2l, leave out ("and (6B)") and insert ("to (6C)").
On Question, amendment agreed to.
The Earl of Dundee The Earl of Dundee moved Amendment No. 135:
Page 40, line 24, at end insert—
("(7) In section 10 of that Act (liability in tort in respect of action authorised or endorsed without the support of a ballot), for subsection (4) there shall be substituted the following subsections—
"(4) Subject to subsection (4A) below, in this section and section 11 of this Act references to the appropriate question are references to whichever of the questions set out in subsection (4) of section 11 of this Act is applicable to the strike or other industrial action in question.
(4A) Where both the questions mentioned in subsection (4) above are applicable in relation to any industrial action, an act inducing a breach or interference such as is mentioned in subsection (1) above shall be treated as an act for the purposes of which the requirement of paragraph (b) of subsection (3) above is satisfied if but only if that paragraph (or, as the case may be, that paragraph as it has effect by virtue of subsection (3A) above) is satisfied in relation to the question applicable to that part of the action in the course of which the breach or interference occurred."
(8) In section 11 of that Act (requirements to be satisfied in relation to the ballot)—

(a) in paragraph (a) of subsection (1) (persons entitled to vote), for the words from "called" to the end of the paragraph there shall be substituted the words "induced to take part or, as the case may be, to continue to take part in the strike or other industrial action; and";

(b) in paragraph (b) of subsection (2) (persons denied entitlement to vote), for the words from ",in", where it first occurs, to the end of the paragraph there shall be substituted the words "to take part or, as the case may be, to continue to take part in the strike or other industrial action;"

(c) in subsection (3) (method of voting), at the end there shall be inserted the words "and each voting paper must contain the following statement, namely—

'If you take part in a strike or other industrial action, you may be in breach of your contract of employment."'
(d) in subsection (4) (appropriate questions), for paragraphs (a) and (b) there shall be substituted the following paragraphs—

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

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

(e) for paragraphs (b) and (c) of subsection (8) there shall be substituted the following paragraphs—

"(b) individuals answering 'Yes' to the question or, as the case may be, to each question;

(c) individuals answering 'No' to the question or, as the case may be, to each question; and";

(f) in subsection (11) (interpretation), at the end there shall be inserted the words—
"and section 1(5) of the Employment Act 1988 shall apply for construing references in this section to a person being induced to take part or to continue to take part in any strike or other industrial action as it applies for the purposes of that section."").
The noble Earl said: In moving this amendment I should like to begin by saying that none of the changes we have made, including these amendments to Schedule 3, alters the fact that an employer wishing to bring an action on the basis of the balloting requirement in the 1984 Act will be able to do so only—and I emphasise "only"—if he can show that a tort is involved. That is, that the union was inducing, or proposing to induce, its members to break (or perhaps to interfere with) their contracts of employment. The liability of the union under the 1984 Act is set out in sections 10(1) and 10(2). These sections are unaffected by any of the amendments.
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Industrial action involving breach or interference with the performance of contracts is subsumed within the wider concept of any industrial action which will found the member's right under Clause 1, but that extension does not apply to the employer.
The intention is that a union should only be required to hold one ballot in order to satisfy the requirements of both Clause 1 and Part II of the 1984 Act. The extension of the Clause 1 balloting requirement to cover inducement to any kind of industrial action necessitates consequential amendments to the balloting requirements of the 1984 Act to meet this point.
The ballot paper will be required to contain a statement similar to that which at present must appear in the question itself, advising voters that industrial action may involve breaches of contracts of employment. It is clearly important that voters are made aware of the seriousness of taking industrial action.
The amendments also produce some helpful clarification of the way in which Part II of the 1984 Act is intended to operate. For example, it is possible that under common law a union is liable for the inducement of interference with the performance of a contract of employment and would therefore have to hold a ballot under the 1984 Act. Neither of the questions which must appear on the ballot paper refers to interference with a performance of a contract. A union proposing to induce interference is therefore unable to ask a question appropriate to the industrial action it is proposing. The amendments to the statutory questions on balloting will enable a union to ask a question which is appropriate in these circumstances.
The amendments make clear that to satisfy the statutory requirements in relation to strike or non-strike action, the question to be asked in the ballot must relate to the type of action the union proposes to induce. If both types are concerned, both the questions must be asked, and support obtained by a majority for one type of action will not preserve immunity for the other.
The balloting requirements of the 1984 Act will not be satisfied if a member of a trade union who was denied entitlement to vote in a ballot is subsequently induced to take part in the industrial action to which the ballot relates, even if that member resists the inducement. This will make it clear that an employer has a similar right of action in such circumstances to that provided for trade union members under Clause 1 of the Bill. That is the effect of the amendment and I beg to move.
The Deputy Chairman of Committees: To that amendment there are three amendments proposed and I have to put each of them separately. I call first Amendment No. 135A as an amendment to Amendment No. 135.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved as an amendment to Amendment No. 135, Amendment No. 135A:
Sub-section (7), at end insert ("but where paragraph (b) is satisfied in a ballot in respect of a strike, and industrial action short of a strike

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is taken without any substantial interval in respect of the same dispute, such an act in the course of the said industrial action shall continue to be treated as one for the purposes of which that paragraph is satisfied.").
The noble Lord said: The noble Earl and I have been put into bat low down in the order. I feel that he and I will have to maintain a pretty solid stand on these matters because there is rather a lot to discuss. After all, what could be more important than a fundamental reconstruction (because that is what it is) of the strike ballot provisions which the Government thought they had right in 1984, thought they had right when they published the Bill and now find that it is necessary to reconstruct yet again. The noble Earl mentioned that there were technical difficulties here. I agree and we have had only 10 days to look at the matter. I cannot forbear to quote the noble and learned Lord, Lord Diplock, in a case in 1983. He had had the advantage of some eight days of argument by learned counsel concerning the provisions of the 1980 and 1982 Acts. He said that these statutory provisions were still for him:
"drafted in a manner which, having regard to their subject matter and the persons who would be called upon to apply them, can in my view only be characterised as most regrettably lacking in the requisite degree of clarity".
With perhaps one exception, as the noble Earl described it, a good deal of this schedule falls under that heading. Does the new schedule clarify the strike, industrial action and ballot questions and unify into a simple whole the rules concerning ballots which must be held when either the employer or the member calls for the ballot? The first comment to make—and this is germane to the amendment—is that the noble Earl himself said that that was not so. In respect of the employer enforced ballot, if I may call it that, there has to be proof (or in an action for an injunction there has to be some argument which will stand up) that a tort has been committed, as the noble Earl put it. The Government have deliberately insisted that that is not the case when a union member calls for the ballot.
Let us say that there is industrial action on the shop floor. An arguments breaks out over whether there should be a ballot. It is no good thinking that one can go to any simplified rules under the Bill. First, one has to know who is asking, because the rules for the union member are different from those for the employer. That is relevant to the amendment in this way. I have to detain the Committee sufficiently to explain what I think anyone coming to the Marshalled List might regard at first sight as a rather complex amendment to a complex subsection.
As we understand it, in adding mandatorily to the ballot paper the words "You may be in breach of your contract of employment" the Government admit a particular point of great importance. By making the union write in, "You may be in breach of your contract of employment", they are accepting what we argued on Clause 1; namely, that some industrial action will not be in breach of the contract of employment. When we come to the questions on the employer-based ballot, they now refer to strike or industrial action. However, for the purposes of the 1984 Act there does not seem to be any definition of "industrial action" although there purports to be a definition of "industrial action" under Clause 1. Do the words mean the same here? Do they mean
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something different? If they mean something different, why? If they mean the same, what is the meaning?
The clarification which we need before we can approach the new subsection (7) introducing the new Sections 10(4) and 10(4A) into the 1984 Act comes about in this way. Subsection (4) is a new way of putting the mandatory questions. If it is a strike, the workers must vote on whether they will strike. If it is industrial action, they must vote on industrial action. If it is both they must vote on both. However, the noble Earl suggested—and we agree that this appears to be the effect of the subsection—that the act in question which comes up for decision must fall within one or the other.
That is applying a set of nice neat boxes to an industrial situation which is highly unlikely to be so simple; life is not as simple as that. The new subsection (4A) may come about in this way. The prospect may be of a strike and/or of industrial action. The national executive committee may want authority to call one or the other. Some members may be engaging in a strike which is under the 1984 Act (a concerted stoppage of work) and others may be engaging in a work to rule or a go slow, or even the action that we discussed in Clause 1.
Its advisers will have the utmost difficulty in advising it on the matter—which appears sometimes to be the intended result—because, as we have seen, there will be different rules demanded by the employers and the employees. Therefore the trade union will often decide to play it safe and ask both questions. For one thing it may not know and, indeed, in many situations it is desirable that it should not know because one would think that the pressure of any statutory provision would be to leave the matter open, while the parties are still in negotiation, so that if any industrial action has to be called it is the lesser rather than the more forceful.
When the ballot covers what happens only if all those who are on strike actually voted for it, that is all right; but when there is industrial action short of a strike, only those who voted for industrial action short of a strike are covered. In a ballot where one asks both questions one may of course receive different answers to one or the other. In our amendment we have not tried to rescue the trade unions, as it were, or the workers from all those complexities but we make one simple point. Where the ballot has been held on a strike question and industrial action short of the strike is taken without a substantial interval— where it is in the same dispute—then the act in respect of the industrial action, short of a strike, should be covered by the ballot.
The amendment is taking the simplest and the smallest exception to the Government's principles, although we hope that when the Government reconsider the position and accept our amendment—as we hope they will—they will look a little more generally at the formula. I repeat one of the major reasons for our amendment and how it would work. Where the executive of the union or the regional officials, if they have authority, call for strike action but there is still negotiation going on, then industrial action short of a strike—which they could

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he said to have induced—ought in our submission, if the ballot is favourable, still to be covered by protection of what is normally called immunity in terms of its legality.
We do not believe that most employers would want the situation otherwise. Most employers would not want to say that where there is a "yes" vote to strike and industrial action short of a strike breaks out, then it should be possible to obtain the injunction. It may be that more problems would arise in regard to dissident members. However, we are discussing here an amendment to the 1984 Act.
Finally, I should like to ask this question of the Minister. Subsections (4) and (4A) do not appear to be precisely matched in Clause 1. I can see that in the questions demanded in Clause 1 there is a general similarity but there is no precision in the matching up. Is that intentional or not?
In a phrase, this is an attempt to make it possible to hold ballots, as the Government accept in their general construction of the machinery, in such a way that where there is a vote for stronger action but negotiations are continuing, minor action—less than a strike in the full sense—would be covered so that there would be no action available for an injunction. We think that is not an unreasonable proposal, even on the Government's assumptions, I beg to move.
The Deputy Chairman of Committees: Before putting the amendment, I should point out that there is a misprint on the Marshalled List. Instead of "Sub-paragraph (7)" it should read "Subsection (7)". Perhaps we could take that as being so.
Lord Dean of Beswick: I listened to the Minister giving his reasons for moving the amendment. I have listened to other proceedings in this place and in another place on trade union and employment legislation. People have talked about legislating for strikes and industrial action. I wonder how many of the people who have legislated on those matters have first-hand knowledge of the subject. I am not talking about trade union leaders or employers; I am talking about the people who have been on strike or taken some form of industrial action at various times during their working lives.
The Government and those people who support ballots are making a mistake. In certain circumstances, I am in favour of ballots over strikes and other industrial action, but I wonder how they will be applied. The mistake being made by many people is to imagine that one can put strikes into pigeon-holes and categorise them. They feel that because we legislate, we will find some way to deal with them all. Nothing could be further from the truth.
There is a major misconception, because the Government are legislating on the basis of national strikes in national industries or large industries that employ many people. I have been a member of the AEU for 50 years. Before I came to this place, I started as an apprentice in the engineering industry in 1937. I have been on strike five times; four of them had nothing to do with the AEU. It might seem a little comical these days when I say that I took part
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in my first strike when I was fifteen. It was a national strike of apprentices in the engineering industry. I took part in my second strike during the war when I was 19. I was still an apprentice in the engineering industry. Those strikes were brought about because engineers had negotiated through the AEU what would seem to be a tawdry wage increase when we look at wage increases since then. The increase was three shillings a week for a skilled engineer. Because apprentices were not recognised as organised labour, although they were allowed to join a trade union—I was a member of Section 5 of the AEU—we received nothing. The apprentices struck. The strike during the war had a profound effect, but it was eventually ended after two or three weeks.
I have only once been called out on what I would call official strike action; I think it was in the early '50s. The AEU under the presidency of Bill Carron decided that because it could not come to a successful conclusion with the Engineering Employers' Federation it was necessary to take some form of industrial action. Anybody who knows the AEU knows that it has never been in the forefront of encouraging its members under any circumstances to strike. Even then, although it was an official strike, it was not totally national—more like a guerrilla strike where certain areas were called out and certain areas were left in.
I think the most profound strike that I was involved in was a strike at the largest factory where I worked. A shop steward was victimised and at a minute's notice he was put outside the factory in a most disgraceful manner by an employee. That resulted in more than 60 per cent. of the people in a workforce of over 20,000 downing tools immediately and walking out. They did not want to know whether the Confederation of Shipbuilding and Engineering Unions' local officials, the area officials, advised them to go back pending negotiations. What emanated from that was that the factory lost two or three weeks of production and it soured the industrial relations in that factory for a long time.
What I put to the Minister is this. Most of the strikes that take place in the United Kingdom do not have a national entity about them. They are establishment or factory strikes. It may be a surprise to some Members of the Committee and to the people who are drafting this type of legislation to know that in most factories where there are many people working, disputes are settled before they even have recourse to outside officials. Good shop stewards and good works committees like to organise their own house and at the last resort they bring in outside officials. In fact, on numerous occasions it is not unknown for the employers or the factory concerned to register a failure to agree in order to bring the full-time officials in so as to get a settlement and pass what the workers particularly want. I think the Government are making a mistake if they think that by proceeding with this legislation with the amendment moved in this form by the Minister they will solve their problem.
I put another two points to the Minister regarding industrial action. It may surprise the Committee to know that many people in industry still work on what used to be known as piecework because they earn more money by it. It is still a very large feature of

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factories where there are production lines and heavy use of machinery. What is the situation? Very often their industrial action takes the form of opting quite legally, historically, for a factory of maybe 3,000, 4,000, or even 10,000 men who are on piecework, what we call production bonus, to say suddenly, "No, we want to go back on day work". That means they can legally have a full week's pay. It may sound a puzzle to the noble Lord, Lord Trefgarne, but I can assure him that these are the realities of life. It happens.
There is another name for it in some other industries, such as working to rule. But I can tell the Minister that in piecework factories it is a common feature of the disputes that when they are negotiating new prices on particular jobs, if an agreement cannot be reached then the worker or group of workers involved have a historical right to say, "We shall opt for day work". That means that the factory loses half its production while it still pays out the basic wage. That is legally enforceable.
Who does the Minister think the Government will punish if the worker in a large factory of workers employed by a large group of companies, such as GEC, General Motors or Fords, say: "We are not going to strike; we are going on day work without recourse to the national union officials"? How will the Government deal with that?
I can tell the Minister that that is not a hypothetical case. It has happened in the past and it will happen in the future. I say to the Minister and to the Government that people in factories will not be pushed about if their trade unions decide that they have to conform with every letter of the law. They will decide in the factories how they will operate. I do not know how the Government will deal with an outbreak of industrial unrest of that sort.
We recently had a situation where a strike at Fords was avoided because negotiations were finally completed. A ballot was taken and the men on the shop floor would not accept the deal that was done by the trade union leaders. That often happens. It is no good trade unions and general secretaries agreeing to deals on a national basis, or perhaps on a factory basis, if they cannot sell the deal to the workers involved. The situation at Fords might have been that the workers said: "We shall not go back; we will opt for day work". That would result in a loss of 50 per cent. of profit and output. However, overheads would still have to be met. Such losses can be more damaging than an out-and-out strike over a prolonged period.
I say to the Minister and to the noble Lord who is sitting beside him that they should not imagine that the legislation which we are now enshrining in law will solve all their industrial problems on the basis that ballots have been held here and there. There will be (and always has been) a mass of industrial disputes to which ballots taken by outside officials will be totally irrelevant. The people involved in the factories will have no regard to them. I hope that the Minister will convey to the Secretary of State that this particular matter might well, in many circumstances, be counterproductive.
10.15 p.m.
The Earl of Dundee: I am very grateful to the noble Lord, Lord Dean, and I was interested in his remarks. He asked about local unofficial disputes. I can tell him that the balloting requirement under the Bill, as under the 1984 Act, applies only to official actions.
It has been claimed that the amendment does no more than seek to re-create the effect of Section 10(4) of the 1984 Act where it has been argued that the words "or includes a strike" which appeared in subsection (4)(a) imply that the union's immunity in respect of organising non-strike action would have been preserved had it obtained a majority "yes" vote in support of strike action, and strike action had been organised among some or all of those who were entitled to vote. If the justification for the amendment is simply that it puts the effect of the law back to what it was before the government amendment replaced the present Section 10(4) by the new subsections (4) and (4A), I have to say that that is not a strong argument although, if there has been uncertainty in the matter, I should equally concede that maybe the Government deserve to be teased.
What is clearly important is to get the law right. The Government believe that if a union is contemplating authorising or endorsing industrial action it should ask the members entitled to vote in a ballot to support or oppose the particular variety of industrial action concerned, for example strike or non-strike action, or to put questions in respect of both types if both are contemplated. To the extent that the Government's amendments represent a change to the present requirements as expressed in Section 10(4) of the 1984 Act, it is a minor change. However, it is one which is desirable and worth while because it will help to avoid confusion in the minds of all involved about the type of industrial action that has been authorised or endorsed.
The government amendment also removes an element of ambiguity in the law as it stands. If a union obtains majority support for organising strike action and had sought no such support for non-strike action it might nonetheless believe itself entitled to commence industrial action of the latter type; namely, non-strike action. It would be unclear, as the law stands, whether the prospect that the industrial action might at some stage be escalated to include strike action would be sufficient to preserve the union's immunity as provided for in Section 10(4A). That doubt will be removed.
The Committee will appreciate the importance of preserving consistency between the balloting requirements which will apply to protect a union from challenge by a member under Clause 1 of the Bill and to preserve its immunity from legal action brought by an employer, customer or supplier under Section 10 of the 1984 Act. In the absence of Clause 1 it might have been argued that so far as concerns an employer there was little practical difference whether the union's action took the form of a call to take strike or non-strike action. In both cases the employer's action against the union for acts taken without the support of a ballot would have been actions in tort.
As the Committee is aware, Clause 1 takes a different approach. The member's right is to restrain his union from inducing him and others to take any

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sort of industrial action, whether or not the union would be liable in tort for organising that action. It might matter a very great deal to a union member whether he and his colleagues were given the opportunity to say whether or not they supported their union organising a particular type of industrial action.
Accordingly, the member must be given the right to restrain his union from organising strike action if it has not asked and obtained a majority yes vote in response to a question which relates to strike action. The same applies with respect to non-strike action. Therefore it would not have been appropriate to replicate the terms of Section 10(4A) in Clause 1 of the Bill. Without the new Section 10, subsections (4) and (4A), in place of the current Section 10(4) of the 1984 Act, consistency between the balloting requirements for the purposes of that section of Clause 1 of the Bill would be lost.
It has been argued that the provisions of Section 10 as they stand, with the government amendment, would impose an immense burden on unions and that unions would be at risk of injunctions and damages unless they correctly identify the right question to ask in respect of any particular industrial action, or if the nature of industrial action changes after it starts.
I think that the noble Lord, Lord Wedderburn, is slightly stretching our imaginations to argue that when industrial action is contemplated there will need to be a debate on the shop floor as to the nature of the action and the union's balloting obligations under Clause 1 and the 1984 Act respectively. Wherever official industrial action is contemplated the union will know that it is running a serious risk of challenge, from at least one of its members, if it fails to hold a ballot. The only significant uncertainty in some circumstances will be whether it also faces liability in tort.
The noble Lord, Lord Wedderburn, also expressed concern that the government amendment will face unions with a whole string of questions dealing with particular types of industrial action. However, we say that no reasonable person can argue that they should not ask the right question. All the union will have to do is decide whether the action it contemplates authorising or endorsing is to take the form of strike or non-strike action or both.
I simply cannot believe that it will present immense difficulties. Even if there were significant difficulties in deciding the nature of the industrial action concerned, or what is a far more realistic possibility that the union wanted to leave its options open, it will be free to ask its members both the questions described in Section 11(4), one of which is appropriate for strike action and the other for non-strike action.
The amendment in the name of the noble Lord is neither desirable nor necessary. The changes to Section 10 of the 1984 Act made by the government amendment are necessary both in themselves for the certainty that they introduce and to preserve consistency between the balloting requirements imposed by that section and Clause 1 of the Bill. Responsible trade unions who are concerned to give their members a proper voice in decisions about the organisation of industrial action and want to know how their members feel about the organisation of
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strike or non-strike action before deciding to authorise or endorse either, have nothing to fear from the government amendment and nothing to gain from the amendment in the name of the noble Lord opposite. Therefore, in the light of those remarks, I hope that the noble Lord will see fit to withdraw his amendment.
Lord Dean of Beswick: Before the noble Earl sits down I should like him to explain certain matters to me. Suppose that there is the scenario in which an employer behaves rather stupidly towards a representative of organised labour in the factory. That does not happen very often but it does occur, if infrequently. Suppose further that the shop floor representative of the workforce is summarily dismissed (it may be the shop steward, chairman of the works committee or the secretary) and that very quickly he is put outside the factory. If the workers in that factory have confidence in the person whom they consider is being victimised, does the Minister think that they would bother about waiting for the official union machinery to move? It would be no use to them whatever. That type of action almost inevitably results in a lightning strike which can be of serious dimensions as I have just explained.
There will be a tightening of the corset when this particular Bill becomes an Act. Can the Minister explain how this legislation will help the workers in such a situation and whom they will hold responsible in law for it having occurred? Will the Government be involved in hundreds of prosecutions against individuals? I do not see any possibility of that happening.
The Earl of Dundee: I do not wish to say to the noble Lord that his diagnosis is incorrect. What we seek to achieve by this proposal is clarity. We wish to make sure that there is as little ambiguity as possible in the ballots that are presented and to align the 1984 Act with Clause 1 of the Bill for reasons which are now well known or are becoming well known as representing our intentions in the Bill.
Lord Wedderburn of Charlton: I am very grateful to my noble friend for tilling out so clearly what I call the Government's inept view that life is as simple as its categories. My noble friend Lord Dean has justified that again and again and the noble Earl has not replied. The noble Earl asked whether our amendment meant to take back the law to what it was previously. Of course not, because we are not trying to amend out of existence the new subsection (4A). Perhaps I may put the point again, and then make one other point which comes from the noble Earl's most fruitful response to this amendment.
The amendment takes a new law that provides that where both questions are put in respect of an Act, then the Act will satisfy the balloting laws if—but only if—it is satisfied in relation to the question applicable to that part of the action that occurs. It is pointless to suggest that this makes very little difference, or is what the noble Earl called a minor change. It makes the position more difficult for the union. It therefore makes it easier for employers and third parties to get injunctions.
The noble Earl has revealed one further point to me and to my noble friends, and we must think about

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it as we come to Report stage. He said that it is important to get the law right, but the trouble with the Employment Acts—as they are called—passed every other year is that they go further and further to the right, and this Bill is no exception. However, what is clear from what the noble Earl said—and we shall read it with interest—is that the Clause 1 ballots—demanded by members—are not parallel to the 1984 Act. That is clear. In Clause 1 the member need prove no case of there having been a tort committed, whereas under the 1984 Act, despite all these amendments, the employer or third party has to show a prima facie or arguable case of a tort. But when he responded to the valuable question of my noble friend Lord Dean about what was going to happen on the shop floor the noble Earl revealed to me how it would work.
This is the simple category. Under Clause 1 any member can always demand a ballot. Because industrial action is so wide he does not have to prove a tort. He does not have to prove anything except the words "industrial action". The member is therefore being put in to bat; and when the employer sees the result of the ballot—because the noble Earl says that the ballot is a common ballot with common questions—he will know whether he can go for an injunction. That is a most revealing and important simplification of how the matter will work. The interaction with my noble friend's description of the situation on the shop floor will make the position of those who are trying to redress a grievance of the kind that he outlined, with the support of their trade union, even more difficult.
I feel that this amendment has brought a most useful response from the Government. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 135B:
Sub-paragraph (8)(c), at end insert—
("(ca) nothing in this section, or in any code issued by the Secretary of State, shall restrict the right of the union to insert words lawfully explaining any matter or giving lawful advice to its members;").
The noble Lord said: This amendment arises from the new questions, and what I believe has been called in another place the health warning: that the ballot paper must carry the words the Government insist upon that tells those voting that if they take part in a strike or other industrial action they may be in breach of their contract of employment.
Our amendment accepts that position. It does not try to negate it. It is the Government's own phrase. Our amendment is directed towards the reality that trade unions nearly always advise their members when they conduct a ballot. First, there is information about the dispute. Then there may be something about the way in which the questions have come to be put, or sometimes about the union machinery. All these issues are very important indeed. We are fearful—I make no bones about it—that the Secretary of State may use his new power to issue a code to restrict the right of trade unions to advise their members on and with the ballot paper.
The codes issued by the Advisory Conciliation and Arbitration Service (ACAS) have been very useful
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and effective codes in industrial relations because they are based upon tripartite consensus. However, the codes of the Secretary of State are political documents issued by the Secretary of State ex cathedra which, albeit they do not and cannot create new offences or liabilities, must be taken into account and into consideration by the courts. The best known is the example of the code on picketing which determines that normally the right number of pickets is six. Many judgments, which otherwise would have led the judge into consideration of all the circumstances, have simply applied that rule on picketing rather automatically.
We are afraid that the Government intend to issue codes which will restrict the trade unions' power and right to advise and speak to their members with the voting paper with the "health warning" upon it. Indeed it is known that employers' federations have already sent the Government their demands in this matter, demands that the union should include even the employers' case on the union ballot paper. We know where all this comes from, apart from the Government's fertile reservoir of imagination. It comes from inspection of statutes such as the Landrum Griffin statute in the United States. The gradual enlargement of restriction over union liberty, even to communicate with their members, is known there and we are fearful that the Government have it in mind here. There is no point in waiting to have consultation because the Government no longer meaningfully consult the trade union movement on this sort of matter.
We want to know whether the Government are considering issuing codes of this kind. That is the point of our amendment and I beg to move.
10.30 p.m.
The Earl of Dundee: I think that I can give the noble Lord an assurance that the Government have no such plans to issue a code to require the unions to proceed as he outlined. Indeed, in considering whether or not a statutory code of practice would limit a union's rights to communicate lawful information or advice, I can also tell the noble Lord that any code of practice issued by the Secretary of State under the power which Clause 17 will provide will have the legal status of any code issued under the provisions of Section 3 of the 1980 Act.
Section 3(8) states that a failure on the part of any person to observe any provision of a code of practice issued under this section shall not of itself render him liable to any proceedings. If a union's action were not unlawful the fact that it did not conform to what might be described in any such code as "good practice" would not of itself make that action unlawful. Codes issued by the Secretary of State are not issued ex cathedra, as the noble Lord, Lord Wedderburn, alleges. They are subject to a statutory process of consultation as well as to the parliamentary approval that he would expect. The Secretary of State is under a statutory duty to consider any representations made to him on a draft code.
The intention of the noble Lord, Lord Wedderburn, is helpful. The effect of the amendment however, would be unnecessary. Section 11(3) of the 1984 Act, as it stands with the Government amendment, will require the method of voting in a

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ballot on industrial action to be by the marking of a voting paper by the person voting and will require that voting paper to include a certain statement. There is nothing in that subsection, or indeed elsewhere in Section 11, which prevents the union from including any other statement on the voting paper provided that the nature of any such statement does not in itself amount to a breach of particular requirements. Unions have a perfect right to communicate lawful information by lawful means to their members. Neither the present law nor the provisions in the Bill will limit that right in any way. In the light of that assurance, I hope that the noble Lord will be able to withdraw his amendment.
Lord McCarthy: I should like to give the noble Earl a concrete example of the kind of situation that we have in mind, and then perhaps he will repeat his assurance. Is he saying that the Secretary of State would never think of including in the code a statement to the effect that a union will not be allowed to explain its own case to the members on the ballot paper if it does not explain the employer's case at the same time and to the same extent? Or that the union should not be allowed to call a strike, even though it had its ballot within 28 days, if it has not first put the employer's subsequent offer to its members? They are two simple restrictions which the Secretary of State may decide to include in his code of practice. Are we being told tonight that he will not do so?
Lord Dean of Beswick: The more I listen to the answers to some of the amendments, the more puzzled I become. I am completely convinced that the Government are in a minefield without any of the flails or tanks to get through. How would the Government cope with the situation of a large employee such as GEC which has four large plants on different sites in the United Kingdom? While the main union catering for the workers in the factories would be the AEU, a large percentage of workers belong to other trade unions and the four factories negotiate independently with their employer. Their employer opted out of the Engineering Employers' Federation some time ago so negotiations are on a factory basis with substantial workforces of thousands in each. What scenario would the Government draw up, bearing in mind that the employer may have made an offer which two factories would be obliged to accept but about which, for legitimate reasons, the other two factories will say, "We are not buying that. In our particular situation it would adversely affect us"? In those circumstances, how do the Government expect this legislation to help in such a situation, or will it be completely useless?
The Earl of Dundee: I am grateful to the Committee. However, I cannot comment on the specific cases mentioned by the noble Lord, Lord McCarthy. I should like to emphasise to him that there is nothing in the Bill which prevents the unions from giving legal advice in a lawful way.
Lord Wedderburn of Charlton: I thought that I was delighted by the first few sentences of the noble Earl's response. I thought that he gave some kind of assurance about the Minister and the Government
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not having it in mind to plan codes of this restrictive kind. Despite the more cautious questions of my noble friends, I shall live with that expectation until I read Hansard. If I find that I am right, I shall be pleased; but if I find that I am wrong, I shall be sorry. In any event, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 135C:
Leave out sub-paragraph (8)(f)
The noble Lord said: This last amendment is rather important because in a fundamental way it relates to the restructuring of the right to withdraw labour and take industrial action. Although it is rather technical, nevertheless the whole law here is technical and therefore a major change is important from a practical point of view. Sub-paragraph (8)(f) which this amendment would take out, would transfer the effect of Section 1(5) in its description and definition of the nature of a person being induced to take industrial action to this part of the law as it applies to Clause 1.
The effect of that is to import into the 1984 Act—that is what I have called the employer enforced or third party enforced strike ballots—a qualification upon the meaning of "inducement" which is hopelessly and fundamentally inappropriate. Indeed, at first I thought that the Government might have made a mistake in that they wanted to transfer the meaning of industrial action from Clause 1 to the sections of the 1984 Act but that is not what they appear to want to do although we have not yet heard why this evening, although we may do on Report. That transfer seem to us quite wrong and we move to strike it out.
I must explain the reason for that. Under Clause 1 a member can demand a ballot for acts that are likely to subject members of the union to an inducement. As was said, no question of proving a tort arises. Indeed, as we have seen, no question of proving illegality arises. This is an extraordinary Bill where under Clause 1 persons are made to take a ballot for doing things which are perfectly lawful. Therefore, as I understood it, the Government introduced the concept that the inducement coming from the union to the members to take the action need not be effective. That is why in Clause 5—or what is left of it because I understand that the last five lines have been deleted by earlier amendments in Committee—references to an inducement in relation to a member of a union include references to an inducement which is or would be ineffective whether because of that member's unwillingness to be influenced by it or for any other reason. Therefore, it can be ineffective whether by reason of the member rejecting it or for any other reason.
The first point that arises is that the Minister has told us tonight that Sections 10 and 11 of the 1984 Act proceed on a quite different basis in respect of what I might call the trigger to the ballot. Here, some kind of argument or case is needed to present to the court that some kind of tort has been committed or is threatened by the defendant union. One does not commit that tort unless one actually induces or threatens to induce in an effective way.
Perhaps I may run through two or three points on that matter. It is true that an injunction can be

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obtained where the inducement is threatened but the threat must be of an effective inducement. It is true, as the noble and learned Lord, Lord Pearce, said in a case in 1965 that:
"The fact that an inducement to break a contract is couched as an irresistible embargo rather than in terms of seduction does not make it any the less an inducement"
The embargo is real and effective. If you choose to do it by seduction, it certainly does not count for the law of tort if all you come up with are some preliminary but ineffective amorous overtures. That does not bring you within the area of tort at all. It is true that it does not matter in the law of tort if the inducee—if I may call him that—is willing to be induced. It does not even matter who spoke the first words. However, if he has already firmly decided not to perform his contract—and this may well be the case on the shop floor—then the persuasion is not normally an effective inducement for legal purposes. If the noble Lord refers to Clerk and Lindsell on The Law of Torts (Chapter 15 of its 15th edition) he will find authorities on the matter which the Committee will not wish me to cite now, but I assert that they are correct propositions.
What is this law that the Government are changing? The Government are saying that Part II of the 1984 Act still depends on tort, minus the basic rule of tort that the inducement must be effective either actually or in prospect. Why? How can the Government do that? What does it mean? We know that it may be the ineffectiveness comes about from the unwillingness of the member to be influenced; though quite what the point is of an injunction then is not clear. The real point is that it is to make it easier for employers and third parties to get injunctions, as we have seen from the previous debate, probably on the back of the ballot called for by a dissident member who may well be put up to the job.
Then there is the bizarre case of an inducement which is ineffective for some reason other than the unwillingness of the member to be induced. What is that all about? The union tries to induce but it is ineffective, not because the members are unwilling but for some other reason! I can tell the Minister that already lawyers are discussing this and wondering how it impinges on real life. Some have suggested that if the union distributes ballot pamphlets calling for industrial action to members who cannot read or who are blind, that is an ineffective inducement sufficient to meet the terms of the Bill; or that if they are exhorted orally by shop stewards and are deafened by a noise on the shop floor, that is an ineffective inducement under the Bill.
It is suggested that if a member is telephoned when he is away on holiday but someone else answers the telephone, that is subjecting him to an inducement. However, I think that one is wrong. It is absurd.
Let the Minister give me a less than absurd example of ineffective inducement which will be allowable in the law of tort and which is ineffective for some reason other than the member's unwillingness to be influenced. If all that is left is the member's unwillingness to be influenced, one does not have an inducement effective for the law of tort, anyway. Therefore, there are two objections.
I must explain to the Committee that very few people understand that when a third party or employer
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seeks an injunction he does not have to prove very much. Often he has not even issued his writ. He has to have a draft affidavit and a motion. He goes in with almost no notice. It is easy enough to get interlocutory injuctions now—sometimes ex parte—but on this law it will not be worth any union turning up in court. The Government have drafted a law which makes it impossible in 90 per cent. of cases even to defend if you get there in time, which often is not possible. Therefore, on its proper construction the government amendment is ludicrous in part because the only examples you find of its meanings are absurd. In so far as it is not absurd it is totally unfair and it is inconsistent with the principle that the Government say dominates Part II of the 1984 Act—namely, that the law of tort still applies—because they are removing an essential constituent of liability in tort. Therefore, I hope that the noble Earl can tell us that some further thought will be given to these extraordinary proposals. I beg to move.
10.45 p.m.
The Earl of Dundee: In speaking to the noble Lord's amendments I think we might agree that it is clearly wrong for a trade union to induce members to whom it has not given a vote in a ballot to take industrial action. Where a ballot is held it is particularly important to ensure that it covers those who are likely to be induced. The fact that some acts of inducement may be ineffective does not affect this principle. That is why we believe that both a union member and, where a tort has been committed, an employer or his customers and suppliers should have a right of action against a union in certain circumstances.
An employer will be able to take action against a trade union only if he can show that a tort is involved. The court would need to be convinced that the union was, or is likely to be, successful in inducing some members to break or interfere with the performance of their contracts. However, that is is no reason why the balloting provisions should rest on the outcome of a union's actions rather than the intention behind them. A union member will have a right of action against the union in circumstances where he is ineffectively induced to take industrial action in the absence of a ballot.
Under Clause 1 of the Bill sub-paragraph (8)(f) makes clear that an employer has a similar right of action in such circumstances. It would be unsatisfactory and anomalous if the two provisions differed in this respect. I believe that the noble Lord, Lord Wedderburn, may have overlooked the significance of the fact that sub-paragraph (8)(f) affects the interpretation of "inducement" only to references in Section 11 of the 1984 Act. This deals with conditions to be satisfied in relation to ballots, not to the issue of liability or the employer's basic right which is to be determined under the terms of Section 10 of the 1984 Act to which sub-paragraph (8)(f) does not apply. If all inducements are ineffective there would be no tort and no liability.
Lord Wedderburn of Charlton: I am grateful to the Minister. I appreciate that we have an even more extraordinary position than I described; namely, that we have ineffective inducements effective for Clause 1; ineffective inducements effective for Section 11;

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ineffective inducements not effective for Section 10. With respect to the Minister, I do not believe that that gets him out of his problem on Part II of the 1984 Act. That is the first of my three brief points.
Secondly, to say that under Section 11 of the 1984 Act the principle is not affected by making the inducement ineffective is just not true. Of course it affects it. The Minister said something very important and that is my third point. I will read what I thought I heard the Minister to say in the middle of his response. He said that is was necessary to have this point about ineffective inducements being treated as effective because you might have a situation where some members were induced effectively and other members were unwilling to be induced. If that is what the Government want, then let them amend subsection (5). I believe that we could do it now, but perhaps we had better not try. What it would come to more or less would be that references in this section to an inducement where some members are effectively induced includes references to inducements which are ineffective in respect of other members. I do not know that I would like it, but I can quite see that would be within the logic of the Government. I believe that the rest is not. The noble Earl has said some very important things in respect of this matter and we have to look at it again on Report.
I conclude on the last point that we have on amendment in Committee by saying that we are very grateful to the Ministers for the statements they have made and for the advice they have given to us. However, we re-assert that in this part and in others, as the noble Lord, Lord McCarthy, has shown, this Bill has been vastly reconstructed by the amendments put late to your Lordships' Committee. We assert that on all those matters that are still not entirely clear from these complex amendments put down at such short notice, that we shall come back—and we have the right to do so—at Report on many of them. I believe this will be one of the matters where the relationship between Clause I and the 1984 Act will have to be looked at on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Amendment No. 135 agreed to.
[Amendments Nos. 135D and 136 not moved.]
Lord Trefgarne Lord Trefgarne moved Amendments Nos. 137 to 141:
Page 40, line 29, leave out ("—
(a)").
Page 40, line 3l, leave out from ("fund)") to end of line 33.
Page 40, line 44, leave out from ("fund)") to end of line 45.
Page 40, line 47, after ("made") insert ("under subsection (4) of that section").
Page 41, leave out lines 6 and 7.
On Question, amendments agreed to.
Schedule 3, as amended, agreed to.
Remaining schedule agreed to.
House resumed: Bill reported with the amendments.
House adjourned at four minutes before eleven o'clock.