§ House again in Committee on Clause 26.
§ Baroness Seear moved Amendment No. 121H:
Page 28, line 17, at end insert—
("(3) After subsection (1) there shall be inserted the following subsection—
§ 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 979 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.
980 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.
981 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 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.983
§ 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 984 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
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 986 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".987 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.
988 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.
989 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 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 moved Amendment No. 122A:
After Clause 31, insert the following new clause:
§ (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 990 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 33 991 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—
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.
§ 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 992 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 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.993
§ 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 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 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.994
§ 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 995 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.
§ Amendment, by leave, withdrawn.996
§ 9.15 p.m.
§ 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 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 997 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. 998 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.".
999 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".
§ 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 1000 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 1001 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 1002 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 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 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 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—
§ On Question, amendment agreed to.1005
§ 9.45 p.m.
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 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)—
'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—
(e) for paragraphs (b) and (c) of subsection (8) there shall be substituted the following paragraphs—
(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. 1006 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 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
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 1008 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 1009 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 1010 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 1011 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 1013 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 1014 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 1015 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 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 1016 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 1017 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 1018 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 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
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 1020 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; 1021 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 moved Amendments Nos. 137 to 141:
Page 40, line 29, leave out ("—
§ 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.