Lords Sitting of 28 March 1988

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read hr the Lord Bishop of Newcastle.
Earl Russell—Sat first in Parliament after the death of his half-brother.

Drivers: Roadside Surveys
Lord Allen of Abbeydale Lord Allen of Abbeydale asked Her Majesty's Government:
How they reconcile the doctrine that the Executive plays no part in decisions whether or not to prosecute with their initiative over an experiment which involves motorists being told in advance that they will not be prosecuted.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, more than 300,000 breath tests arc given by the police each year resulting in more than 100,000 convictions. There will be no amnesty for drivers whom the police suspect, in the course of the forthcoming roadside surveys, of being over the legal limit. The survey interviews will be undertaken by Department of Transport officials. The role of the police will be to stop cars and direct drivers to the interview area. If in doing so they suspect a driver of having committed a drink driving or any other offence, they will deal with that offence in the normal way.
Lord Allen of Abbeydale: My Lords, I thank the Minister for that Answer and for clarifying the rather confused statements that have appeared in the newspapers. Am I right in thinking that the widely reported statement that there will be no prosecution of motorists who are found to be over the limit is quite wrong?
Lord Brabazon of Tara: My Lords, I agree with the noble Lord that the newspapers have given somewhat confused reports on that point. In the case of somebody who has been taken into the interview area, if the police have not picked out the fact that the driver is over the limit a Department of Transport official will invite him to rest until he is legally able to continue the journey. In extreme cases officials will offer a driver a lift to a destination if the passenger is unable to drive. I should make it quite clear that if, in spite of being over the limit or appearing to be over the limit, the driver insists on continuing, he will be warned of the consequences and referred to the police at the entrance to the survey area.
Lord Allen of Abbeydale: My Lords, the question of what happens to the driver after he has been stopped is irrelevant. The Question relates to the offence which he has already committed before he is stopped. What I am seeking to find out is whether, if that information comes to light either to the police or
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to the Ministry of Transport inspector, he will be considered for prosecution.
Lord Brabazon of Tara: My Lords, if that information comes to the attention of the police as they stop a driver to direct him into the interview area, he will be subject to the normal rules and will be prosecuted if he is found to be over the limit. If it comes to the attention of the Department of Transport officials, what I described in my previous answer will happen.
Lord Brougham and Vaux: My Lords, is my noble friend aware that RoSPA is fully behind Her Majesty's Government on this proposal? Will he also squash any press statements which suggest that this is an amnesty, which it is not?
Lord Brabazon of Tara: My Lords, I am grateful to my noble friend for telling the House the view of RoSPA. That view is also shared by the police, who also are in favour of the survey.
Lord Underhill: My Lords, are we not in a quandary here? We have what could be a dangerous police precedent but at the same time a survey that will provide some valuable information. Can the Minister say what will happen if the Transport and Road Research Laboratory personnel carrying out the test find that a person is over the limit?
Lord Brabazon of Tara: My Lords, I agree that the survey is valuable and we hope that it will produce valuable data on which we can base our future counter-measures against drink driving. That is the whole point of the survey. As all noble Lords will be aware, we are very anti-drink driving and the survey will increase our knowledge of the subject.
With regard to the noble Lord's second supplementary question, if someone is found to be over the limit he will be invited to rest until he is legally able to continue the journey. If he tries to leave he will be referred to the police. I should also emphasise that the test is voluntary and a driver can refuse to take part in the survey.
Lord Hailsham of Saint Marylebone: My Lords, is not the fact of the matter that the offence arises if a suspect is stopped by a police constable in uniform? Therefore is not what my noble friend has described practically the only way in which such a survey can legally be carried out?
Lord Brabazon of Tara: My Lords, I am sure that my noble and learned friend knows much more about the legal aspects of the matter than I do. However, it seems to me that the purpose behind the survey is valuable, and if something can be learned from it, it is worth doing.
Lord Stoddart of Swindon: My Lords, is the noble Lord aware that some of us are becoming bewildered? We have all believed that it is our duty as citizens to assist the police in the apprehension of people engaged in criminal behaviour. From what the Minister has said it seems that the Department of Transport officials do not feel so obliged. Can the noble Lord clarify the matter further?
Lord Brabazon of Tara: My Lords, there is little I can add to what I have already said. If the police find, or suspect, that a driver is over the limit on being stopped to go into the survey area, then the normal course of the law will take place. On the other hand, a driver who has stopped in the survey area, who has been questioned about his drinking habits by Department of Transport officials and who is then found to be over the limit, will be allowed to remain there until he is fit to leave. However, should he try to leave the area while still over the limit, then of course he will be handed over to the police.
Lord Elwyn-Jones: My Lords, will that not mean that during the period in this area of experimentation, and in the circumstances which have been described, the motorist, although over the limit, is immune from prosecution? If that is so, it is a most extraordinary state of affairs, is it not?
Lord Brabazon of Tara: My Lords, no. That is not the case; the motorist is not immune from prosecution. Should the police, on stopping him and inviting him to go into the survey area, suspect or find that he is over the limit, then he will be prosecuted in the ordinary way.
Lord Elwyn-Jones: My Lords, I was referring to the period of rest that has been mentioned, which, no doubt, will be a treat for the gentleman concerned. After he has rested and it is then found that he is over the limit, what will happen?
Lord Brabazon of Tara: My Lords, if the driver attempts to leave the survey area before he is so sufficiently rested to have rid himself of the excess alcohol, he will be referred to the police who will no doubt do what they normally do in such circumstances.
Lord Carr of Hadley: My Lords, will my noble friend confirm that he will give further and careful consideration to the matter? I have no doubt that the intentions are extremely good. However, sometimes good intentions pave the road to an unacceptable place. Like a one-time Permanent Under-Secretary to the Home Office, I, as a one-time Home Secretary, am somewhat puzzled and concerned by what I have heard.
Lord Brabazon of Tara: My Lords, I hope that after today my noble friend—and other noble Lords—will at any rate be slightly better informed of what we are actually trying to do, following some of the reports that have appeared in the press. However, I emphasise that this scheme is an experiment.
Lord Molloy: My Lords, may I support the noble Lord, Lord Carr of Hadley, in what he has said?
Noble Lords: Oh!
Lord Molloy: My Lords, all right; I shall not do so. I was just trying to be gentle and gracious. In view of the bewilderment in the House about the proposals, can the Minister say what will happen when millions of ordinary people outside try to interpret these
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proposals and read the report of our proceedings in Hansard? Is not the right answer now to let us have just one police force, reinforced if necessary with additional policemen, and to re-think the entire scheme?
Lord Brabazon of Tara: My Lords, as I have already said this is an experiment to try to increase our knowledge on the subject. I think all noble Lords will agree that drink-driving is a serious problem and we should therefore do all we can to increase our knowledge of the matter. That is the purpose of the experiment. And it is an experiment. We have only one police force. If a policeman suspects someone of being over the limit he will carry out what is the normal procedure in such circumstances.
Lord St. John of Fawsley: My Lords, with reference to what my noble friend Lord Carr of Hadley said about good intentions leading to an unmentionable place, is it not true that the Government are leading people into a perfectly mentionable place—hitherto unknown to the law—namely, limbo? Does that action not have grave legal consequences since it is an innovation unknown to our common law?
Lord Brabazon of Tara: My Lords, I am not unfortunately a lawyer. However, I am sure that those who devised the experiment were well advised by lawyers. I do not believe that there is anything taking place which is against the law.
Baroness Fisher of Rednal: My Lords, why is it important for the Government to run an experiment or carry out research when drunken drivers come before the courts every day of the week? They appear before the courts because the police have brought them there and give evidence in that connection. Could the Government not have undertaken such research from the comments of those people who have already been convicted? In that way we would not find ourselves in the muddle that we are talking about. Can the noble Lord tell the House where those people are going to rest if, for example, they are caught on the motorway? I thought it was another offence to rest on the hard shoulder.
Lord Brabazon of Tara: My Lords, I can assure the House that the tests will take place at carefully selected sites which I do not think will include motorways. In answer to the noble Baroness's original question, most research is based on data that we gain from drivers who have been involved in accidents. The work we are currently undertaking will complement that by providing data from a sample of the general driving population. We shall be looking to find out about personal characteristics, attitudes to drinking and driving and drinking habits.
Lord Allen of Abbeydale: My Lords, may I ask the Government to think again?
Noble Lords: Next Question!
Lord Allen of Abbeydale: My Lords, I do not want to prolong the matter—
Noble Lords: Next Question!

BA/B.Cal Merger: EC Inquiry
2.49 p.m.
Baroness Burton of Coventry Baroness Burton of Coventry asked Her Majesty's Government:
With reference to their answer of 18th February (HL Deb. cols. 751–752) whether they will make a statement on the decision of the European Commission concerning the merger of British Airways and British Caledonian.
Lord Beaverbrook: My Lords, investigation of complaints about abuse of a dominant position under Article 86 of the Treaty of Rome is a matter for the Commission. However, I am very glad that the Commission and British Airways have been able to reach an amicable settlement which is compatible with the arrangement on which the Monopolies and Mergers Commission reported. This left it to the UK licensing process to decide which of British Caledonian's routes and associated slots BA should be allowed to take over.
Baroness Burton of Coventry: My Lords, does the noble Lord agree that we shoud congratulate both Mr. Sutherland, the Commissioner for Competition, on the work that he has done and British Airways on the good grace it displayed in accepting those recommendations? Will he tell the House whether the recommendations are for a period of four years, which would give independent United Kingdom airlines a chance to consolidate any new routes? Finally, if I table a Written Question, will the Minister set down in the Official Report details of Mr. Sutherland's recommendations so that we may all know exactly where we stand?
Lord Beaverbrook: My Lords, I should like to join the noble Baroness in paying tribute to the work of Commissioner Sutherland and British Airways in negotiating this sensible agreement. Of course the undertakings agreed by British Airways will be looked at carefully by the Commission. The detail of the monitoring arrangements is a matter for British Airways and the Commission. I believe that the agreement is for four years.
Baroness Burton of Coventry: My Lords, the Minister forgot one small point. If I table a Written Question, will he set down the details in the Official Report?
Lord Beaverbrook: My Lords, I was in danger of exceeding the allotted number of answers that I should be giving; but of course I shall look at what the noble Baroness said to see whether that is possible.
Lord Taylor of Blackburn: My Lords, will the Written Answer be more than 100 words?
Lord Beaverbrook: My Lords, I assume that the noble Lord is referring to my original Answer, which was about 85 words.
Lord Williams of Elvel: My Lords, what is the virtue of British Airways, or any other company for
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that matter, giving one series of undertakings to the Monopolies and Mergers Commission which are enforceable under United Kingdom law and then having to go to Brussels to give a further series of undertakings to the European Commission which are not enforceable under United Kingdom law? If that is to be the future of competition policy, should not United Kingdom law be brought into line so that the second series of undertakings can be so enforced?
Lord Beaverbrook: My Lords, the noble Lord raises an interesting point. As I said earlier, the recommendations will be looked at over a period by the Commission, and it will no doubt ensure that British Airways is complying with them.
Lord Williams of Elvel: My Lords, I am sorry to press the noble Lord, but in the DTI White Paper the noble Lord, Lord Young of Graffham, announced that there would be a voluntary process of clearances for mergers. Will the Minister say what will happen if there is a voluntary clearance under United Kingdom law, as it then will be, which is then opposed by the Commission?
Lord Beaverbrook: My Lords, that is a hypothetical situation which has not happened in this case. In this case the deal achieved with the European Commission fits in well with the MMC recommendations. I cannot tell the noble Lord what will happen in circumstances that we have not yet come across.
Lord Campbell of Alloway: My Lords, is my noble friend aware that in the ultimate result undertakings given to the Commission are enforceable by an adverse decision of the Commission, and therefore, although in effect there is logic in the question put from the other side of the House, in the ultimate there is an effective sanction?
Lord Beaverbrook: My Lords, that may well be the case. I am grateful to my noble friends. In the case with which this Question is concerned, the EC recommendations and the MMC recommendations fit together.

Motor-cycles: Rearview Mirrors
2.54 p.m.
Baroness Macleod of Borve Baroness Macleod of Borve asked Her Majesty's Government:
Whether they will make it compulsory for all motor-cycles to be fitted with rearview mirrors.
Lord Brabazon of Tara: My Lords, we have no plans to make mirrors compulsory. We take the view that motor-cyclists should decide for themselves whether they wish to fit mirrors.
Baroness Macleod of Borve: My Lords, I am tempted to ask why not, but I shall ask a further question. Is my noble friend aware that motorcyclists driving low cc motor-cycles when turning cross in front of other traffic, thereby causing accidents?
Lord Brabazon of Tara: My Lords, that may be the case. Whether the situation would be improved by fitting a mirror is the real question. We believe that reliance on mirrors by motor-cyclists is inadvisable. Rule 46 of the Highway Code advises a motor-cyclist to look over his shoulder before changing direction.
Lord Underhill: My Lords, on what consultations is that answer based? Surely there is a danger, especially with the amount of weaving that goes on, in motor-cyclists looking over their shoulders while travelling?
Lord Brabazon of Tara: My Lords, I am not certain that consultation has taken place. This is the first time that I have been aware of any feeling that mirrors should be compulsorily on motor-cycles. Mirrors are normally fitted to handlebars, which is the same as fitting a mirror to the steering well of a motor car; every time one changes direction, the mirror changes its attitude and is therefore of limited value.
Lord Boyd-Carpenter: My Lords, why does my noble friend think it safer for the motor-cyclist to turn his head to look over his shoulder than to glance into a mirror?
Lord Brabazon of Tara: My Lords, for the reason that I have just given; normally the mirror would be fitted to the handlebar. When the motor-cyclist changes direction, the attitude of the mirror changes. That is not something I think; it is something which has been commonly recognised for many years.
Lord Underhill: My Lords, before the motor-cyclist changes direction, he should look in the mirror to see whether it is safe.
Lord Brabazon of Tara: My Lords, he could of course if he had a mirror, and most motor-cyclists do. We believe that they should not rely on a mirror. It is much better if they look round.
Lord Nugent of Guildford: My Lords, is my noble friend aware that there is a further consideration? When a motor-cyclist has on a helmet, which he is legally obliged to wear, the helmet obstructs his backward glance. It is therefore all the more necessary for him to have a mirror on the handlebars. Will my noble friend ask the TRRL to have another look at this point?
Lord Brabazon of Tara: My Lords, I shall draw the attention of my honourable friend to the remarks that have been made in your Lordships' House. As I said earlier, it has never appeared to be a cause of great concern that motor-cycles should be compulsorily fitted with mirrors. If it is becoming so, I shall obviously draw my honourable friend's attention to the matter.
Lord Cledwyn of Penrhos: My Lords, the House will be grateful to the noble Lord for agreeing to do that. Will he please tell his right honourable friend that there is also a feeling that there should be proper consultations? There have obviously not been consultations with motoring organisations such as
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the RAC and the AA. Will he please press that point on his right honourable friend?
Lord Brabazon of Tara: My Lords, I will. I do not know whether there were consultations in the past. I am not aware of consultations, but there may have been in the past.
Lord Strathcarron: My Lords, does my noble friend recall the Question I asked some time ago when I suggested that nearside rearview mirrors on motor-cycles should be made compulsory? The gist of his reply then was that motor-cyclists should look where they were going and not worry about a rearview mirror. That strange argument could perhaps apply to all road vehicles.
Lord Brabazon of Tara: My Lords, I do not know whether we should move in one go from having no compulsory mirrors to having mirrors on both sides of the motor-cycle. In view of the debate that has taken place in the House this afternoon, I am sure that it is a matter which we should think about.
Lord Brougham and Vaux: My Lords, is my noble friend aware that most rearview mirrors on motor-cycles suffer from vibration and thereby give a distorted view of traffic coming behind and that all modern motor-cyclists are taught to look over their shoulders and not to use mirrors?
Lord Brabazon of Tara: My Lords, my noble friend has put very succinctly what I have been trying to say during the course of this Question. I pointed out that mirrors normally fitted to handlebars do change their attitude but vibration is also a problem on motor-cycles. Therefore we still very firmly advise that motor-cyclists should look over their shoulders before changing direction.

UK Airlines
3 p.m.
Lord Broughham and Vaux Lord Broughham and Vaux asked Her Majesty's Government:
How many airlines there are in the United Kingdom.
Lord Brabazon of Tara: My Lords, about 50 UK airlines currently hold air transport licences. We have more airlines than any other country outside the United States and our travellers are increasingly enjoying the benefits of competition on domestic and international routes.
Lord Brougham and Vaux: My Lords, I thank my noble friend for that very interesting Answer. Can he tell the House what contribution the aviation industry makes to the economy of our country? Can he also tell me what Her Majesty's Government have done to help the industry?
Lord Brabazon of Tara: My Lords, certainly aviation provides about 80,000 jobs and contributes £620 million per year to our balance of payments. Also it accounts for nearly two-thirds of foreign

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tourists entering the UK. As regards what the Government have done to encourage aviation, we have strengthened competition within Europe and on the North Atlantic routes, and our airlines now have greater freedom to start up new routes and offer lower fares.
Lord Underhill: My Lords, the information given by the Minister is very interesting. However, should it not be noted that in reply to a simple question we can receive a vast amount of information from the Minister, but as regards supplementary questions on other subjects, it is very difficult to go beyond the Question on the Order Paper?
Lord Brabazon of Tara: My Lords, I am not certain whether that question relates to the Question on the Order Paper. I was asked how many airlines there are in the United Kingdom and I gave the answer.
Lord Tordoff: My Lords, can the noble Lord tell us how many of these airlines are running scheduled services?
Lord Brabazon of Tara: My Lords, a great many of them are running scheduled services: some only run scheduled services; some run both scheduled and charter services. But, with the increasing blurring between the charter and the scheduled markets, a great many of the previous charter-only operators are now running scheduled routes.
Lord Tordoff: My Lords, that answer illustrates the point which the noble Lord was making that some of us find it difficult to get detailed answers to our supplementary questions.

Business
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Report stage of the Employment Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during the adjournment the Social Security (Contributions, Re-rating) Order 1988, the Social Security (Treasury Supplement to and Allocation of Contributions) (Re-rating) Order 1988, the Social Security (Contributions) Amendment (No. 2) Regulations 1988, and the State Scheme Premiums (Actuarial Tables) Amendment Regulations 1988 will be taken.

Newcastle upon Tyne Town Moor Bill [H.L.]
3.6 p.m.
Read a third time, and passed, and sent to the Commons.

Dartmouth-Kingswear Floating Bridge Bill
Read a second time, and committed to an Unopposed Bill Committee.

Business of the House: Debate, 20th April
The Lord Privy Seal (Lord Belstead): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the debate on the Motion in the name of the Lord Underhill set down for 20th April shall be limited to 5 hours and that Standing Order 35 and paragraphs 10 to 13 of the Rules for the Conduct of Short Debates shall apply to the debate with the substitution of "5 hours" for "2½ hours" and "25 minutes" for "20 minutes".—(Lord Belstead.)
On Question, Motion agreed to.

Duchy of Lancaster Bill
Lord Beaverbrook: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Beaverbrook.)
On Question, Motion agreed to.

Employment Bill
3.8 p.m.
Report received.
Clause 1 [Right to a ballot before industrial action]:
Lord Wyatt of Weeford Lord Wyatt of Weeford moved Amendment No. 1:
Page 1, line 9, after ("ballot") insert ("which in the case of proposed national industrial action must be a postal ballot").
The noble Lord said: My Lords, the purpose of this amendment is to make it compulsory to have a postal ballot when a proposed national dispute is in the offing. I am moving Amendment No. 1 and speaking also to Amendment No. 20, because Amendment No. 20 is consequential.
It is well known that it is possible to manipulate, distort or improperly influence workplace ballots. It happens regularly and that is why this Bill provides for postal ballots for all elections to executive positions in unions. However it is equally possible to manipulate workplace ballots before a proposed dispute.
At the recent dispute at Rover, Solihull, the decision to strike until Wednesday of last week was taken by the employees in postal ballots. There was then a meeting to endorse the recommendation of the shop stewards to go back to work. There was a show of hands at this workplace meeting and an argument as to who had won the show of hands. So immediately another postal ballot was demanded by the employees. The result showed that 79 per cent. were in favour of going back to work and that result was ready by the end of the week. That is why the Rover employees at Solihull are back at work today, but without that postal ballot they probably would not be.
Postal ballots are not very difficult to organise. The electricians' and the plumbers' union have a rule that no strike can take place before a postal ballot has authorised it. If that union can arrange it why cannot every union? However, this amendment is more modest. It only requires a postal ballot before proposed national industrial action. The argument against such a proposal is that it may be difficult to define a national industrial action. The Amalgamated Union of Engineering Workers has a rule in its rule book that no strike can take place involving all its members without a postal ballot beforehand. That seems to me to be a pretty good definition of a national dispute. It is a situation which is obviously covered by our amendment.
The engineers are themselves in favour of our amendment and I cannot see why any union should be against it. If all the members of a union are to be asked whether they want to have an industrial dispute, clearly national industrial action is contemplated. If there had been a national postal ballot before the last miners' strike, it is quite possible that it would never have taken place, but at least the views of the members would have been fairly stated.
The Government may think that this amendment is not important because they have provided that a person defying a majority verdict for a strike cannot be disciplined by the union. I think that fundamentally misunderstands the nature of trade unions. Whatever the law may say, loyalty to majority verdicts will remain unless obviously there is something unjust about how such verdicts were reached.
I hope that between now and Third Reading the Government will look carefully at our amendment. Otherwise they will be saying that postal ballots are necessary to ensure accuracy in the election of' officials, but that accuracy over employees' wishes in respect of national disputes is not necessary and not important. I commend the amendment to your Lordships.
Lord Campbell of Alloway: My Lords, I support this amendment. National industrial action can be called by a union on behalf of all its members for so many reasons, some of which have been given by the noble Lord, Lord Wyatt of Weeford. One of those reasons includes the furtherance of an inter-union rivalry dispute. Notwithstanding the decision in Stratford v. Lindley so many years ago when I happened to be the counsel, the TUC has not, alas, devised any effective machinery for the resolution of such disputes. That is a great pity.
In the coming decade we shall move, and have to move, towards the single union representation in certain important industries. We have to do that in order to survive. It is the absence of any such machinery to regulate what has now become a kind of unseemly beauty contest for single union representation that presents a very real danger not only to the members of the trade unions but also to the economy.
Let us not dwell upon the sadness of the Ford fiasco. To apportion blame is wholly beyond the
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scope of this amendment. But for this reason as well as other reasons such as those given by the noble Lord, Lord Wyatt of Weeford, in the absence of any effective domestic regulating machinery I hope that your Lordships on all sides of the House will agree that it is wholly essential that members should have their say by postal ballot before they are all called out on strike in national industrial action. It should be a true say, free from all taint of fraudulent manipulation. It is my personal hope that this amendment will commend itself to your Lordships and to my noble friend the Minister, having particular regard to the considerations of trade union loyalties with which the noble Lord, Lord Wyatt of Weeford, is fully familiar.
Lord Carr of Hadley: My Lords, I hope I may urge my noble friend to accept the amendment which has been moved and supported. To call out all the members of a union on strike is an enormously serious step, first of all for the sacrifices demanded of the union members concerned and secondly for all members of the community who may be affected and usually also for the state of the national economy. Such a serious decision should not be taken except with an accurate ballot.
There is also the other point which I should like to stress and which was made by the noble Lord who moved this amendment; namely, that there is a very strong tradition in trade unions of loyalty to back majority decisions. Therefore it is very important for them to feel sure that a majority decision really is a majority decision. If we are going down the road in this country, as I am glad we are now, of using ballots for important decisions of this kind, it is of immense importance that the ballots should have the utmost integrity. Therefore I strongly urge the Government to accept this amendment.
The Earl of Dundee: My Lords, the Government appreciate the concern underlying this amendment. I am very grateful to noble Lords who have spoken to it. The Green Paper recognised in Chapter 5, paragraph 6, that, properly supervised and organised, a fully postal system of balloting is the least susceptible to manipulation. I believe that this very much accords with the remarks of my noble friend Lord Carr of Hadley. Indeed some unions use postal balloting methods, as we know, for ballots on industrial action and are required by their own rules to do so before they can authorise or endorse industrial action or particular kinds of industrial action.
The Government already encourage the use of postal ballots on industrial action by, for example, making the cost of such ballots eligible for refund under the Trade Union Ballot Funding Scheme, subject to the conditions of that scheme. In 1987 out of a total of 526 applications under the scheme I believe that no fewer than 262 were in respect of postal ballots on industrial action. In addition a code of practice issued by the Secretary of State under Clause 18 about ballots on industrial action might recommend as good practice the use of proper postal voting as a means of conducting such ballots wherever that was practicable and offered real

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advantages in terms of avoiding the possibility of any abuse of a member's rights.
This amendment seeks to impose an impractical requirement. It aims to give a union member the right to apply to the court if his union induces or is likely to induce himself and other members to take national industrial action without support from a postal ballot.
The noble Lord, Lord Wyatt of Weeford, alluded to the difficulty, which he acknowledged, of defining national industrial action, although he perhaps did not attribute as much difficulty to that definition as the Government might. But national industrial action has no clear meaning. While a union organising industrial action by all its members would be organising such action, it is less clear whether the term would apply to, for example, industrial action taken by all of the union's members engaged in a particular occupation or employed by a particular employer.
Lack of clarity is only one problem. In practical terms a union which sought to avoid such a requirement could presumably do so quite easily simply by excluding one or more of its members whose industrial action it might otherwise propose to authorise or endorse. The industrial action concerned would then cease to be national industrial action and the statutory postal balloting requirement would have no effect.
While the Government certainly want to see industrial action ballots conducted by proper means, they recognise, as the Green Paper stated, that postal ballots are sometimes much less suitable for such ballots than other voting methods. So it would be wrong to impose the postal voting requirement on all such ballots. Attempting to apply a postal voting requirement in respect of ballots concerned with a particular variety of industrial action would demand some definition of what variety or varieties are to be covered. National industrial action is not a precise term. But even if the expression was given a precise meaning, the scope for evasion of any postal voting requirement by adjustment of the limits of the action in question is apparent. I therefore hope that in the light of these few remarks the noble Lord, Lord Wyatt of Weeford, might feel able to withdraw his amendment.
3.15 p.m.
Lord Harmar-Nicholls: My Lords, the mover of this amendment said that he hoped that the Government would perhaps look at it between now and Third Reading to see whether they could find words which would cover the problems that he has outlined. Is not the Minister in a position to say that the Government will look at this and see whether they can find such words?
The Earl of Dundee: My Lords, the Government are always prepared to look at anything that is said at any stage of Committee or Report in your Lordships' House. But, as I said, we have looked into this very thoroughly and do not believe that it would be prudent to embark on the course which has been suggested to us by the noble Lord at this stage.
Lord McCarthy: My Lords, I am glad to see that we can begin our debate this afternoon with an area of agreement between ourselves and the Government.
Noble Lords: Rubbish!
Lord McCarthy: I am glad to see that, however limited it may be. I agree with everything which the Minister has said. Of course it is impractical to define national industrial action in the way that the noble Lord, Lord Wyatt of Weeford, suggests. Of course —
The Minister of State for Defence Procurement (Lord Trefgarne): My Lords, I hesitate to intervene in the noble Lord's speech but I wonder whether he is aware of the recent recommendation from the Procedure Committee that it is not appropriate for a noble Lord to speak after my noble friend has replied to the amendment.
Lord McCarthy: My Lords, I was not aware of that. I apologise to the House. If that is the case, I shall sit down.
Lord Wyatt of Weeford: My Lords, unless the Minister gives a more definite assurance that the matter will be looked at again and that a definition will be found for "national industrial dispute", I shall have to ask the House to divide.
3.21 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 87; Not-Contents, 90.

DIVISION NO. 1

CONTENTS

Addington, L.

Hampton, L.

Airedale, L.

Harmar-Nicholls, L.

Alexander of Tunis, E.

Harvington, L.

Aylestone, L.

Hayter, L.

Bagot, L.

Hylton-Foster, B.

Belhaven and Stenton, L.

Jenkins of Hillhead, L.

Beloff, L.

Kaberry of Adel, L.

Birdwood, L.

Killearn, L.

Blyth, L.

Kilmarnock, L.

Boyd-Carpenter, L.

Kimball, L.

Brentford, V.

King of Wartnaby, L.

Burton of Coventry, B.

Kinloss, Ly.

Campbell of Alloway, L.

Lauderdale, E.

Carnock, L.

Lloyd-George of Dwyfor, E.

Carr of Hadley, L.

Macleod of Borve, B.

Cawley, L.

McNair, L.

Chapple, L. [Teller.]

Mais, L.

Constantine of Stanmore, L.

Mancroft, L.

Dacre of Glanton, L.

Manton, L.

De Freyne, L.

Margadale, L.

Dudley, B.

Merrivale, L.

Eccles, V.

Milverton, L.

Effingham, E.

Morris, L.

Elibank, L.

Mottistone, L.

Ellenborough, L.

Munster, E.

Ely, M.

O'Brien of Lothbury, L.

Faithfull, B.

Onslow, E.

Gainford, L.

Orkney, E.

Gisborough, L.

Orr-Ewing, L.

Greenway, L.

Oxfuird, V.

Grimond, L.

Peyton of Yeovil, L.

451

Plummer of St Marylebone, L.

Shaughnessy, L.

Porritt, L.

Somers, L.

Portsmouth, E.

Stedman, B.

Reilly, L.

Strathspey, L.

Renton, L.

Thorneycroft, L.

Ritchie of Dundee, L.

Thurlow, L.

Rochester, L.

Tordoff, L.

Russell, E.

Tranmire, L.

Sainsbury, L.

Vaux of Harrowden, L.

St. Davids, V.

Walston, L.

Saltoun of Abernethy, Ly.

Wolfson, L.

Sandys, L.

Wyatt of Weeford, L. [Teller.]

Sharpies, B.

NOT-CONTENTS

Allen of Abbeydale, L.

Jeger, B.

Ardwick, L.

Joseph, L.

Arran, E.

Kilbracken, L.

Auckland, L.

Layton, L.

Basnett, L.

Leatherland, L.

Beaverbrook, L.

Llewelyn-Davies of Hastoe, B

Belstead, L.

Long, V.

Birk, B.

Longford, E.

Blatch, B.

Lovell-Davis, L.

Bottomley, L.

McCarthy, L.

Brabazon of Tara, L.

McFadzean, L.

Briginshaw, L.

Mackay of Clashfern, L.

Brougham and Vaux, L.

Mersey, V.

Bruce of Donington, L.

Molloy, L.

Bruce-Gardyne, L.

Murray of Epping Forest, L.

Caithness, E.

Nelson, E.

Campbell of Croy, L.

Newall, L.

Carmichael of Kelvingrove, L.

Newcastle, Bp.

Cledwyn of Penrhos, L.

Nicol, B.

Cullen of Ashbourne, L.

Nugent of Guildford, L.

David, B.

Phillips, B.

Davidson, V. [Teller.]

Ponsonby of Shulbrede, L.

Dean of Beswick, L.

Rawlinson of Ewell, L.

Denham, L. [Teller.]

Sanderson of Bowden, L.

Dormand of Easington, L.

Schon, L.

Dundee, E.

Serota, B.

Elwyn-Jones, L.

Shepherd, L,

Ewart-Biggs, B.

Skelmersdale, L.

Ferrers, E.

Stewart of Fulham, L.

Fisher of Rednal, B.

Stoddart of Swindon, L.

Fletcher, L.

Taylor of Blackburn, L.

Fraser of Kilmorack, L.

Taylor of Mansfield, L.

Gallacher, L.

Terrington, L.

Galpern, L.

Teviot, L.

Glenarthur, L.

Trafford, L.

Graham of Edmonton, L.

Trefgarne, L.

Gray of Contin, L.

Trumpington, B.

Havers, L.

Turner of Camden, B.

Hesketh, L.

Underhill, L.

Hives, L.

Wallace of Coslany, L.

Hooper, B.

Ward of Witley, V.

Ironside, L.

Wedderburn of Charlton, L.

Irvine of Lairg, L.

White, B.

Jacques, L.

Willis, L.

Jay, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
3.30 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 2:
Page 1. line 12, after ("part") insert ("and in respect of which an employer of all or any of such members has, or would have, a right of action by virtue of sections 10 and 11 of the 1984 Act,").
The noble Lord said: My Lords, while the House recovers from that non-postal result, I shall attempt to move Amendment No. 2 and, if I may, speak also to Amendments Nos. 3 and 4.
The amendments deal with the structure of Clause 1, which was extensively rewritten by government amendments put down on 3rd March which there
452
was little opportunity for your Lordships to consider before the debate at Committee stage. Many of those amendments were adverted to by noble Lords who remarked that we should return to those matters at Report stage. It is to that new structure of Clause 1, dealing with the ballot which the member of the union has the right to demand on pain of an order from the court, that these amendments turn.
Amendment No. 2 deals with the first of four major discrepancies introduced by the new structure between the Clause 1 ballots (where the member is the trigger) and the 1984 Act ballots as rewritten in the schedule to the Bill (the employer ballots), which now have a separate and different structure. The fundamental difference, and indeed the difference upon which the Government relied, is that the new Clause 1 demands a ballot for any type of industrial action without the limitation of a breach of contract of employment, interference with the contract of employment, commission of a tort or any other unlawful ingredient. The first amendment again puts to the Government that this is an unsatisfactory and almost impossible way in which to define the area of compulsory balloting in which the court will intervene by order.
Amendment No. 4 touches upon the nature of the inducement. The inducement of the union's authority is now to be sufficient even if it is "ineffective" in having any influence over the members. It is to be sufficient where the members are, in the words of the clauses, subjected to "an inducement", albeit ineffective. The sanctions are to apply to all types of industrial action. Finally, the court is enabled to make an order requiring the union to ensure that any conduct consequent upon the inducement, even if it is ineffective, must stop.
There is nothing academic in saying that this is an impracticable set of provisions. I hope that the Minister will give us an answer this time to a simple, practical question. Many questions were put to him in Committee but with great respect, he did not tell us what the effect of the clause would be. Let us take a case in which workers in an office or factory have concluded that the workplace is unsafe or may be unsafe and management has not responded. They get together to make a further protest to management with the support of the relevant trade union official who may well be a shop steward. As we understand it there is industrial action within the extraordinary definition of this clause. If the shop steward has authority within the meaning of Section 15 of the 1982 Act the action is thus endorsed by the union and there must be a ballot. In Committtee the noble Lord, Lord Trefgarne, suggested that these were not really problems. He said:
"If [the union] are in any doubt all they have to do is have a ballot". [Official Report, 17/3/88; col, 461.]
That one illustration demonstrates the thousands of occasions upon which workers and union officials will have to consider holding a ballot—situations which managements would also regard as distruptive—rather than simply pursuing the argument, no doubt with implied threats to go further than the withdrawal of goodwill.
It is said by the Government that there is a need for width, which these amendments would do something

453
to mitigate. It is said that a member must have a right to ballot for every conceivable type of industrial action—not industrial action where there is a breach of the employment contract or industrial action which is the norm in present legal structures or which involves any interference with contracts of employment which may or may not be breached. It is any kind of combination which is to put pressure on the employer. Indeed in Committee that fact came out as the central point. The Government justified it with the argument that the definition of industrial action in terms of the law of unfair dismissal is so wide—although I doubt whether it is quite as wide as has been interpreted here—that the member who demands a ballot must be entitled to it on all such occasions because there may be a risk of his being dismissed.
One might think that one answer to that would be to amend and mitigate the law relating to unfair dismissal and not to pile one absurdity upon another. The example is not a very good one because in the vast majority of cases the member demanding a ballot would be the member who does not wish to join the industrial action and who is protected by the Government's own Clause 3 from any kind of discipline under the union rules.
So what is the reason? Why is there this wide range of liability in Clause 1? It concerns not just the exclusion of normal legal rules, the notion that one imposes penalties, procedures and court sanctions upon people when they have done something wrong. It also concerns a system which must—and I believe that the Government know very well that it will—harass normal union activity on the shop floor, in the office, and indeed at the computer keyboard and in other sensitive areas.
We do not believe that such a structure will help good industrial relations. The idea—and this is the basis of the clause—of a court making an order requiring the union to ensure that members should refrain from protesting about working conditions, is the old idea of using the union as a policeman, which has so often bounced back in the face of those who adopted it. That was not the idea in the Green Paper. The Green Paper was quite logical; it said what Amendment No. 2 says. Like it or not, it said that there must be a parallel statutory right for members of a union, a natural complement to the right of the employers, customers and suppliers.
Will the Government at this late stage please tell us what caused this Pauline conversion somewhere upon the road between October and 3rd March? Why was it that they debated in another place for so many hours on the basis of the Green Paper but suddenly it was found that that was not enough and that workers who receive the support of a union official must always be made to hold a ballot or suffer a court order? After all, the employer cannot obtain a ballot or injunction in similar circumstances if he cannot show presumptively an argument for a tort having been committed in inducing breach of contract and the like.
It is a distinction that the Government maintain, as can be seen when reading their statements in Committee. The Government's insistence that there must be a different basis for the ballot when the
454
members call for it and when the employer wants it is matched only by their insistence that the questions must be the same. Why? The answer of course is that in situations where the employer might not obtain the ballot—or an order or injunction—he can more easily ask an individual member of the union to call for one. Unions are organisations that are perhaps something like your Lordships' House, in which there are always a few dissidents. There are always a few people who cannot remember the latest rules of procedure recently laid down by the relevant committee. There are always members of an organisation who want to object and who get things wrong. Nevertheless the point of view of those members is heard in the unions—perhaps that is the difference.
There are always individual dissidents, and so there should be. An employer will know that he can persuade one of them to call for a ballot when he cannot do so. We on these Benches believe that that is wrong in principle. It would also be wrong in practice in the sense that it will not help industrial relations on the shop floor. We genuinely believe that in legal terms it is improper and in practical terms rather silly. At this late stage we ask the Government first to explain why they make the change, because no explanation has been given, and secondly whether they will reconsider this point before Third Reading. I beg to move.
Lord Rochester: My Lords, I feel that I must support this amendment because on these Benches we think it wrong that under Clause 1 the Government have widened the definition of industrial action so that it will no longer mean action that is in breach of the contract of employment but will cover any strike or industrial action taken by people who have employment contracts. I have said often enough that in my view it is desirable that in the field of industrial relations the law should strike a balance between the interests of employers on the one hand and employees and their representatives on the other. The position in this country, unlike that in other countries, is that there is no collective right to strike and if there is a strike the employment contract is not suspended but is judged to be broken. Therefore the scales are already heavily weighted against the trade unions.
Yet now, as I understand it, in Clause 1, and indeed in the definitions noted at the end of the Bill, late in the day the Government have dispensed with the perfectly clear definition of industrial action that previously was implicit in Clause 1; namely, that it is action which is in breach of or interferes with the performance of the contract of employment. Instead we are now told in subsection (7) that:
"'industrial action' means any strike or other industrial action by persons employed under contracts of employment".
It seems to me that viewed in one way that definition simply amounts to a statement that if the action in question is taken by someone who is working under a contract of employment, then "industrial action" means industrial action. At best that is meaningless; at worst in the context of Clause 1 it has to be seen as a catch-all phrase aimed at frustrating any collective action that is not supported by a ballot.

455
In my view the Government have overstepped the mark. Their definition of industrial action makes no sense, is unbalanced and, when tested against the realities of life on the shop floor, may well simply not stand up. Therefore I support the amendment.
3.45 p.m.
Lord Boyd-Carpenter: My Lords, I hope that my noble friend will not accept this amendment, whose purpose plainly is to weaken if not emasculate the clause. That is indeed its purpose. With that in mind, it is perhaps relevant to recall that the headnote relating to this clause reads, "Rights of trade union members". That is its subject matter.
With his habitual adroitness, the noble Lord, Lord Wedderburn, tried to shift the argument towards the suggestion that his amendment would help the employer. He even went so far as to suggest that it would help the employer because there would always be some dissidents among the employees who would be prepared to try to assist him. Obviously any noble Lord who sits on the Labour Front Bench must be an expert on the subject of dissidence and I certainly do not want to argue that point with the noble Lord, However, the whole purpose of this series of amendments is to whittle down a clause, the effect of which as it stands is to give greater powers to the union member as opposed to the union leadership and to prevent him being coerced into action of which he does not approve.
There is only one point I wish to add, namely that the noble Lord fell into a curious error. He criticised the Government for undergoing a Pauline conversion at an earlier stage. I am sure that he will recall—and if he does not the right reverend Prelate will remind him of it—that the Pauline conversion was an occasion on which a man who was in error suddenly saw the light.
Lord Renton: My Lords, I also am against this amendment but I rise only to answer the point made by the noble Lord, Lord Rochester. It sounded to me as though his argument was based mainly upon his objection to the definition of "industrial action" in Clause 1(7).
Those words have been used frequently in the past in this branch of the law without having been defined. In defence of those who passed the previous relevant legislation, especially the Acts of 1980, 1982 and 1984, I believe that the expression "industrial action" must have been considered to be wider than the mere word "strike". However, it is perfectly plain—is it not?—that in the context of our discussion the word "strike" is too narrow an expression. For example, a go-slow would be in breach of a contract of employment and would be industrial action. In my opinion, the Government have wisely now introduced a realistic definition, and I do not think that these amendments can be supported on the basis that it is not a proper one.
Lord Somers: My Lords, since the noble Lord has spoken to three amendments together, perhaps I may be allowed to say a few words about Amendment No. 4. Your Lordships' House has just rejected the
456
necessity for a postal ballot and therefore presumably a ballot will often be determined by a show of hands. In these matters the human element must be taken into consideration. It is possible that a young worker may be standing beside an older man of whose opinion he is rather afraid. He dare not show his own view if it is a contrary one, and therefore votes in a way that fails perhaps to convince his conscience.
The only way to avoid such a situation is to have a postal ballot. However, the House has just voted not to have a postal ballot under all circumstances. Although the man to whom I referred would have voted against his conscience, he would have been induced to do so solely by his own feelings and not by any act, so the words in the amendment "induced by an act" are not applicable. How is one to deal with such a situation?
Lord Trefgarne: My Lords, perhaps I may start with Amendment No. 2 and then move on to the other amendments. I believe that Amendment No. 2 would subvert the basic intention behind the clause: that a member should have the right to restrain his union from inducing members, including himself, to take any industrial action without majority support for the action from a proper secret ballot.
Union members will not, and should not, need to establish whether the union's inducement involves all the elements of any sort of tort. There are complex matters involved with which a member should not need to be concerned. In particular, one of the key elements of a tort is the question of damage to an employer or others, and I believe that this is of little relevance to the individual member.
One reason, and a sufficient reason, why the member needs to be able to seek a court order regardless of the tortious nature of any act of his union, done or likely to be done without the support of a proper ballot, is that the member's job is potentially at risk whatever the nature of the industrial action concerned. The Faust case which we considered during an earlier discussion on this point established that an employee might lose the right to claim unfair dismissal if he was dismissed for taking industrial action even if that action involved no actual breach of his employment contract.
The case of Express and Star Limited v. Bunday and others may not appear relevant; but it has been cited. The Court of Appeal concluded that the company's employees were dismissed after refusing to comply with an instruction under their contracts of employment. That does not show that they could have claimed unfair dismissal if the instruction had not been given under their contracts of employment and their refusal to comply had not therefore been in breach.
I turn now to Amendment No. 3. The part of the subsection the amendment seeks to alter concerns the order which a court is to make if it is satisfied as to the matters set out in paragraphs (a), (b) and (c).
The court is then required to make such order as it,
"considers appropriate for requiring the union to take steps (including the withdrawal of any relevant authorisation or endorsement) for ensuring that there is no, or no further, inducement of members of the union … and that no such member engages in any conduct after the making of the order by virtue of having been

457
induced before the making of the order to take part or to continue to take part in the action".
I have read that extract at length because it is important that your Lordships are aware that the court can only make an order concerning the steps to be taken by the union. The court is not empowered to make an order which will require ordinary members of the union to act in one way or another.
In making an order under the subsection, and in considering, if necessary, whether a union had complied with it, the court would be well aware of what lay within the ability of the union to do and what lay beyond its powers. But it is vital that the court is able to require the union to do all that it possibly can to see that the conduct of its members is not induced by what it previously did unlawfully.
The subsection is expressed as it is to ensure that the court can make such an order as will, for example, ensure that the union not only withdraws its unlawful authorisation or endorsement of industrial action but does so in such a way that members are left in no doubt that it has been withdrawn and that their conduct after the making of the order is not influenced by what was previously done by the union unlawfully.
Where such an order is made against it, the union will run no risk of being held liable for the actions of individual members provided that it is able to satisfy he court that it has done all it could do to comply with the order.
I turn now to Amendment No. 4. I am afraid that as the amendment stands it would be unlikely to have any effect. Any reference in the clause to an inducement, however it is framed, is subject to the provisions of subsection (6) which provides that such references include references to an inducement which could, for whatever reason, be ineffective.
The intention underlying the amendment is unacceptable. It is clearly wrong for a trade union to induce members to whom they have not given a vote in a ballot to take industrial action. The fact that some acts of inducement may be ineffective, something which is largely outside the union's control, does not affect this principle and we believe that a union member should have a right of action against the union in such circumstances.
I turn now to one or two points that have been raised during the discussion. The answer to the proposition of the noble Lord, Lord Somers, is that a ballot which constitutes only a show of hands cannot be said to be a secret ballot and would not therefore be in accordance with the provisions of this Bill requiring a secret ballot before industrial action is taken. I hope therefore that the fear expressed by the noble Lord in reality will not come to pass.
The noble Lord, Lord Wedderburn, thought that safety ought to be considered further. The noble Lord's example leaves certain points unclear, such as what the workers were to do by way of protest. Were they to walk out, refuse overtime or withdraw goodwill? Without that elucidation, it is not even sure that industrial action would be involved. Even if it were, it has to be shown that this was official; that is, that the union was legally responsible. As regards the example the noble Lord gave of safety arrangements
458
not being adequate in a particular factory, such a thing, would, we believe, normally be brought to management's attention by the shop stewards. Generally speaking, shop stewards are not employed by the union as officials; therefore, any action that they propose would, I am advised, be unofficial action not falling within the ambit of this clause.
The noble Lord asked why it was not enough just to cover breaches of contract or interference. There are two replies to that. First, a union member is subject to dismissal without having a remedy for unfair dismissal whether or not there is a breach of contract or interference. That stems from the Faust case to which I referred earlier. Secondly, it is uncertain what constitutes interference with the contract of employment outside the context of actions in tort, and the clause does not deal with actions in tort. Despite what the noble Lord, Lord Rochester, said, industrial action is, I believe, a term which has a much clearer meaning to employees within the concept of a breach of contract of employment or interference with the performance of such a contract. I believe that these proposals are more easily understood by ordinary workpeople. I hope that the amendment will not be pressed.
4 p.m.
Lord Wedderburn of Charlton: My Lords, I am grateful to the Minister for his explanation of some of our difficulties. However, we conclude that they make the need to press this amendment even stronger. I welcome the support of the noble Lord, Lord Rochester, with regard to the difficulties that he mentioned on the shop floor. That is where this problem will emerge. The Government's notion of the shop floor is that it is composed of neat, simple boxes. One changes the shape of the box occasionally without defining it too well.
The Minister said that Amendment No. 2, which is the most important, would subvert the whole intention behind the Bill. The noble Lord, Lord Boyd-Carpenter, said that the amendments would emasculate the clause. The astonishing aspect of the opposition to the amendments is that they only put the clause back into the state that it was before 3rd March. The Government pressed this clause, in the form of amendment through the Commons, into your Lordships' House.
I apologise to the House that I was not present at Second Reading. However, I read the debate at Second Reading. I do not remember the noble Lord, Lord Boyd-Carpenter, castigating the Government for continuing with this poor, emasculated creature that they had put forward month after month. Of course not, my Lords. This is a change of tack which may give us a glimpse of the 1990 Bill. On the arguments that have been put forward, how would they resist pressure to give the right to employers over the parallel area, except that the employer cannot be sacked with regard to the industrial action? With great respect to the noble Lord, those crocodile tears about the sackings will not do. If they said that, if there was a ballot and the ballot produced a majority, the workers could not be sacked, then they would have a case. But they still keep the right to sack and because there is a right to sack they say that one must

459
create the maximum confusion on the shop floor every time there is collective action.
I am grateful to the Minister for his clarification concerning my example. With the greatest respect to him, I gave an example of a situation where there was sufficient support from the union to come within the clause. I gave the example of a shop steward who had authority under union rules, explicit or implicit—and the decision of the Heaton case in your Lordships' Judicial Committee in 1973 showed how wide implicit and implied authority can be (as the Minister challenged me on this)—to bring him within Section 15(3)(b) of the 1982 Act. So that aspect was covered in my example. What was not clear, and is still not entirely clear, is whether the Government accept that in all those types of cases.
I took one safety example. There may be a million others. Many of your Lordships will know very well the type of problem that arises every day on the shop floor. The Minister said that if collectively they threaten to withdraw goodwill then there must be a ballot. What a basis for a system of industrial relations! When one side begins with more than one person in combination to withdraw goodwill, there must be a ballot or there will be a court order. On court orders the Minister is digging very deep. I do not say yet that it is to his eternal disadvantage, but he is digging deep in a trench that promises great difficulty.
He said in response to the other amendment that the court must have the right, as it has now in the redrawn clause, to ensure that the union make sure that the members abstain from any conduct that results from the former inducement. The amendment asks: why not abstain from any industrial action? That is what the clause is supposed to be about. If the clause were logical it would provide that the remedy would match the wrong. The wrong is not for further ballot. The court will say that the union must ensure that nothing happens in regard to industrial action following inducement. But it does not say that. It says that the court has jurisdiction. The High Court takes notice of these works and it will be pressed by counsel (at great expense no doubt) to say, "We want you to make sure that the members of the union do not do anything in this area, industrial action or not". As the clause stands, the court has that jurisdiction. Why? The answer was not forthcoming.
The Minister says that we cannot have the boundaries of contract and tort in this clause because—I hope I have his remarks accurately—a key element in regard to a tort is that it is causative of damage. Of course, most of these cases will not be brought on the basis of damage committed. The average labour litigation is of course concerned with injunctions about threats to act or threats to cause damage and, as a reason for excluding the law of tort in an area where prospective damage, or allegation of prospective damage, however little, is the order of the day and actual damage very rare, that is quite inadequate.
The Government's case for the clause seems to us not to have been sustained. In fact, in many ways it has been made weaker, especially for those concerned about such aspects as the damage that will be done to
460
the goodwill of both parties on the shop floor. We mean to press the amendment.
4.5 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 78; Not-Contents, 130.

DIVISION NO. 2

CONTENTS

Addington, L.

Llewelyn-Davies of Hastoe, B

Airedale, L.

Lloyd of Kilgerran, L.

Amherst, E.

Longford, E.

Ardwick, L.

Lovell-Davis, L.

Aylestone, L.

McCarthy, L.

Basnett, L.

McNair, L.

Birk, B.

Mais, L.

Blease, L.

Molloy, L.

Bonham-Carter, L.

Murray of Epping Forest, L.

Bottomley, L.

Nicol, B.

Briginshaw, L.

Oram, L.

Bruce of Donington, L.

Phillips, B.

Carmichael of Kelvingrove, L.

Pitt of Hampstead, L.

Cledwyn of Penrhos, L.

Ponsonby of Shulbrede, L. [Teller.]

David, B.

Davies of Penrhys, L.

Ritchie of Dundee, L.

Dean of Beswick, L. [Teller.]

Rochester, L.

Donaldson of Kingsbridge, L.

Russell, E.

Dormand of Easington, L.

Sainsbury, L.

Elwyn-Jones, L.

Sefton of Garston, L.

Ewart-Biggs, B.

Serota, B.

Falkland, V.

Shackleton, L.

Fisher of Rednal, B.

Shepherd, L.

Fitt, L.

Stallard, L.

Gallacher, L.

Stedman, B.

Galpern, L.

Stewart of Fulham, L.

Graham of Edmonton, L.

Stoddart of Swindon, L.

Grey, E.

Strabolgi, L.

Hampton, L.

Taylor of Blackburn, L.

Harris of Greenwich, L.

Taylor of Mansfield, L.

Hughes, L.

Tordoff, L.

Irvine of Lairg, L.

Turner of Camden, B.

Jacques, L.

Underhill, L.

Jay, L.

Wallace of Coslany, L.

Jeger, B.

Walston, L.

Jenkins of Hillhead, L.

Wedderburn of Charlton, L.

John-Mackie, L.

White, B.

Kilbracken, L.

Williams of Elvel, L.

Kilmarnock, L.

Willis, L.

Leatherland, L.

NOT-CONTENTS

Ailesbury, M.

Carnock, L.

Airey of Abingdon, B.

Carr of Hadley, L.

Alexander of Tunis, E.

Cawley, L.

Ampthill, L.

Chapple, L.

Arran, E.

Colnbrook, L.

Auckland, L.

Constantine of Stanmore, L

Bagot, L.

Cottesloe, L.

Beaverbrook, L.

Cross, V.

Belhaven and Stenton, L.

Cullen of Ashbourne, L.

Beloff, L.

Dacre of Glanton, L.

Belstead, L.

Davidson, V. [Teller.]

Bessborough, E.

De Freyne, L.

Birdwood, L.

Denham, L.

Blatch, B.

Dundee, E.

Blyth, L.

Eccles, V.

Boyd-Carpenter, L.

Effingham, E.

Brabazon of Tara, L.

Elibank, L.

Brentford, V.

Ellenborough, L.

Brougham and Vaux, L.

Ferrers, E.

Bruce-Gardyne, L.

Fraser of Kilmorack, L.

Caithness, E.

Gainford, L.

Campbell of Alloway, L.

Gisborough, L.

Campbell of Croy, L.

Glenarthur, L.

461

Gray of Contin, L.

Orkney, E.

Hailsham of Saint Marylebone, L.

Orr-Ewing, L.

Oxfuird, V.

Hanson, L.

Pender, L.

Hardinge of Penshurst, L.

Peyton of Yeovil, L.

Harmar-Nicholls, L.

Plummer of St Marylebone, L.

Harvington, L.

Porritt, L.

Havers, L.

Portsmouth, E.

Hayter, L.

Pym, L.

Hesketh, L.

Reilly, L.

Hives, L.

Renton, L.

Hooper, B.

Rodney, L.

Hylton-Foster, B.

St. Davids, V.

Joseph, L.

Saltoun of Abernethy, Ly.

Kaberry of Adel, L.

Sanderson of Bowden, L.

Killearn, L.

Sandford, L.

Kimball, L.

Sandys, L.

King of Wartnaby, L.

Sempill, Ly.

Kinloss, Ly.

Shannon, E.

Kitchener, E.

Sharples, B.

Lane-Fox, B.

Skelmersdale, L.

Lauderdale, E.

Slim, V.

Layton, L.

Somers, L.

Long, V. [Teller]

Strange, B.

McFadzean, L.

Strathcarron, L.

Mackay of Clashfern, L.

Strathspey, L.

Malmesbury, E.

Swansea, L.

Mancroft, L.

Terrington, L.

Manton, L.

Teviot, L.

Margadale, L.

Teynham, L.

Merrivale, L.

Thorneycroft, L.

Mersey, V.

Thurlow, L.

Milverton, L.

Trafford, L.

Monk Bretton, L.

Tranmire, L.

Morris, L.

Trefgarne, L.

Mottistone, L.

Trumpington, B.

Munster, E.

Vaux of Harrowden, L.

Nelson, E.

Ward of Witley, V.

Newall, L.

Whitelaw, V.

Newcastle, Bp.

Wolfson, L.

Nugent of Guildford, L.

Wyatt of Weeford, L.

O'Brien of Lothbury, L.

Young, B.

Onslow, E.

Resolved in the negative, and amendment disagreed to accordingly.
4.12 p.m.
[Amendments Nos. 3 to 5 not moved.]
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 6:
Page 3, line 7, at end insert ("or to a question satisfying subparagraph (i) above").
The noble Lord said: My Lords, Amendment No. 6 deals with the new questions constructed by the Government for the ballots on industrial action. In moving this amendment, I should also like to speak to Amendments Nos. 54 and 55. Although the semantics are slightly different, I understand that the objective of the Government is to make the same and equivalent restructuring of the questions and the answers that must be received in both Clause 1, when the member requires the ballot, and in Schedule 3 of the 1984 Act, when the employer may bring an action if no ballot is taken in respect of industrial action.
In many ways the challenge to the new structure matches some of the points I raised in respect of Amendment No. 2; so I shall move this amendment briefly. One can understand the new structure requiring the questions: will you strike, yes or no; or will you take part in industrial action short of a strike, yes or no? As we understand the matter both in respect of Clause 1 and the revised 1984 Act, if the union puts both questions, the requirement on it is
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that the action then taken must fit one or the other. If the union does not have a positive response with a majority saying "yes" to the relevant question, the industrial action is not validated by a ballot.
The amendments seek to ask whether the attempt to divide life into neat boxes is sensible. We can understand the question: will you strike? We can understand the question: will you take industrial action short of a strike? However, the amendments suggest that if one has a positive response to the first question, it is reasonable that action authorised by the union which is short of a strike should be validated by the majority. The practical reason is clear. Ballots may well he taken, as they have often been taken over the last few years, in situations where union leaders are in a position of negotiation. If union leaders have balloted members and have received a majority of votes for strike action, it seems absurd that the only legitimate action which they can take is full strike action rather than some industrial action less than that.
The practical industrial relations argument is that the flexibility of the unions' negotiating position is undermined by this structure in an unnecessary way. Our amendments would add further flexibility. This would be in the interests of the unions and also of management which would not wish to put unions in a position in which the only action that could be authorised after a ballot was strike action. We believe that our amendments will fulfil that position without great damage to the rest of the structure of the clause. I beg to move.
Lord Renton: My Lords, before the noble Lord sits down will he explain one point? I have a copy of the Trade Union Act 1984, Section 11, which does not contain subsection (1C). It may be that a subsequent amendment has escaped my notice. However, I am looking at the Queen's printer's copy and I shall be grateful for an explanation.
Lord Wedderburn of Charlton: My Lords, the Minister will reach the correct reference more quickly that I can. I believe that the Government are amending the relevant sections in Schedule 3 on pages 41 and 52 of the Bill. I believe that the point arises at page 42, line 32, but the Minister will correct me if I am wrong. The noble Lord will see paragraphs (a) and (b). Our amendment will become paragraph (c).
The Earl of Dundee: My Lords, the Government believe that if a union is contemplating authorising or endorsing industrial action, it should ask the members entitled to vote in the ballot to support or oppose the particular variety—that is, strike or nonstrike—of industrial action concerned, or pose questions in respect of both types if both are contemplated.
In the absence of Clause 1 it might have been argued that in some circumstances there could be little practical difference as far as an employer was concerned whether the union's action took the form of a call to take strike or non-strike action. But 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

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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. And the same applies with respect to non-strike action. The amendment to Clause 1 would remove a part of this important right leaving the members with no effective method of ensuring that their union asks the appropriate question and is guided by the majority result on that question.
All that a union will have to do is decide whether the action it contemplates authorising or endorsing is to take the form of strike action, or non-strike action, or both. I cannot believe that that will present immense difficulties.
Even if there was a significant difficulty in deciding the nature of the industrial action concerned, or the far more realistic possibility that the union wanted to leave its options open, it would 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.
Responsible trade unions which are concerned to give their members a proper voice in decisions about the organisation of industrial action and want to know what their members feel about the organisation of strike or non-strike action before deciding to authorise or endorse either, have nothing to fear from the Government's amendment, and nothing to gain from the Opposition's.
The noble Lord, Lord Wedderburn, raised the lack of flexibility about which he was concerned. If one were to envisage how the nature of the industrial action may change after it starts, one has thereby probably considered an example which if the arrangements are not flexible enough would be seen to be failing in this way. When one envisages such an example I believe one can say categorically that they are flexible enough. For example, if a union properly ballots its members, and obtains a majority "Yes" vote to both the questions described in Section 11(4), it should retain its immunity and avoid risk of challenge by a member under Clause 1 if the nature of the industrial action changes from strike to non-strike, or vice versa, during the currency of that action.
It is eminently desirable that a union member has the right to ensure that his union asks the appropriate question. It is fundamental that unions give their members the chance to vote in a ballot which accurately represents the nature of the industrial action the union wishes to organise. Provisions in Section 10 need to be consistent. The provisions of the Bill are therefore necessary, and the amendments would be undesirable. I hope the noble Lord will, in the light of my remarks, reconsider his intentions and agree to withdraw these amendments.
Lord Wedderburn of Charlton: My Lords, I am grateful to the Minister for his remarks. I do not believe that those remarks make us any more hopeful that this structure will work very well. Perhaps I may make two points. First, of course his answer takes for
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granted that we can understand the terms "industrial action" and "strike". The discussions in Committee and again today show that that will be very difficult. The Bill says that a strike is a concerted stoppage of work. But it is a concerted stoppage for how long? Is a stoppage every few minutes or every hour a work to rule, a "go slow" or a strike? There will be infinite legal discussion about those terms and it is the uncertainty of the terms that makes the arguments about the questions so difficult to make. It is true, as the Minister says, that the only conclusion that the union can possibly come to in a difficult situation is that both questions must be asked. However, our amendment is addressed precisely to that type of situation and we say that when the union could ask both questions and it has not done so, does a positive strike decision really rule out every type of action short of a strike, wherever the borderline may be?
The Minister seems to say that that is so. I cannot think that the Government are well advised, even on their own premises, to take that attitude because that is obviously much more difficult to work and much more difficult for union negotiators and management to negotiate with than a more flexible arrangement. The final conclusion to be drawn from the Minister's statement is: what is being asked? In terms of any conflict at work, the union must disclose its hand. The union is required every time to say exactly what kind of action it will take. That is the purpose of the Bill and the clause. If one day the Government think about it and decide to ask the employer to put his intention to lock-out to some kind of ballot, we might think that that was more reasonable.
It seems that the noble Lord, Lord Trefgarne, has read the case of the Express and Star Ltd. v. Bunday and others in the Court of Appeal. That demonstrates that the question of what is a strike and what is a lock-out is extremely difficult. We hope to see lockouts subject to some sort of democratic procedure when the Government come to their next Bill in 1990. However, we have made this point which is part of the structure of challenging Clause 1. We challenged it in the Division and cannot think that that is the end of the matter. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Right not to be unjustifiably' disciplined]:
Lord McCarthy Lord McCarthy moved Amendment No. 7:
Page 5, line 38, at end insert—
("(3A) An individual who has been disciplined by a trade union shall not be treated for the purposes of this section and sections 4 and 5 below as having been unjustifiably disciplined by reason only of paragraph (a) or (b) of subsection (3) above, if it is shown—

(a) that the strike or other industrial action is supported by a ballot which satisfies the conditions of sections 10 and 11 of the 1984 Act;

(b) that the voting paper in that ballot contained, immediately after the statement required by subsection (3) of the section 11 of the Act, the following statement—

"If this action is supported by the majority vote, failure to take part in it may render a member open to disciplinary action under the rules";

(c) that the disciplinary action taken by the union is reasonable in all the circumstances of the case.

(3B) Where an individual makes a claim under section 4 below and the union relies upon subsection (3A) above, the industrial

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tribunal shall determine whether the disciplinary action was reasonable for the purposes of that subsection having regard to the circumstances of the member, the interests of the other members of the union and the actions of the parties to the dispute giving rise to the strike or other industrial action, in accordance with equity and the substantial merits of the case.").
The noble Lord said: My Lords, this is an attempt to continue the degree of unity which I was trying to develop when it was fractured on a point of order earlier in the debate. This is what one might call the minimalist right to discipline. As your Lordships will remember, we are going back to the debate which we had in Committee on the right to discipline.
Clause 3, over a wide area, essentially denies trade unions the right to discipline their members. In Committee the amendment of the noble Lord, Lord Rochester, attempted to give the unions the right to discipline after a lawful ballot—a lawful ballot within the terms of the 1984 Act. The House will remember that there was a distinguished series of speakers, many of whom on this side of the House supported the line which was put forward in the amendment of the noble Lord, Lord Rochester. Of course, we lost.
The essence of our argument then and the essence of the argument lying behind this new amendment is that we are in favour of majority verdicts. We believe, as do the CBI, the BIM, the Institute of Directors, the Institute of Economic Affairs, the Conservative trade unionists and almost every other association one can find, that Clause 3 struck at the heart of the principle of the majority verdict. We thought that was unsettling. We thought that if people were free to ignore majorities who come out in favour of the strike, others will ignore majorities who come out against the strike. Therefore, that would create fragmentation, disunity and chaos in industry.
The Government's answer to that was, no. The Government advanced two kinds of argument, one of which I do not think we can meet but the other we attempt to meet with this amendment. The Government used what I call the plurality of obligations. They said that while there was a threat of dismissal for breach of contract on the employers' part, that justified and made necessary an absence of any threats on the trade union side. Our answer to that, as has been put forward repeatedly, is that if the Government think that is a serious argument, they ought to deal with the problem of the threat of dismissal for breach of contract. They ought to come here and do something about a right to strike. However, we cannot do that in this Bill because it does not concern the right to strike.
Therefore, I turn to the second argument which was a vague assertion made not so much by the Government—although they did sometimes—as by their supporters that if we gave a right to discipline, even limited to the use of the 1984 majority strike vote under the terms of the legislation, it would be abused by trade unions. They would use it to seek to impose their will upon a minority in ways which were unnecessary, undemocratic and so on. We have tried to cover those points with this amendment. We are not simply saying that the member has to have a ballot and that the unions have to win the ballot and that the ballot has to be in the terms of the 1984 legislation. We are also saying, as we did not say in Committee, that on the voting paper which is used in
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the course of that ballot, the union must make it quite clear that if the section is supported by the majority vote, failure to take part in it may render a member open to disciplinary action under the rules. In other words, the union has to declare in advance that anybody who votes for this strike, if it receives an affirmative majority, may have to face disciplinary action. One might say that that is simply a warning to the union member of what may fall upon him.
What about protection? We consider that we have introduced a measure of protection in the remainder of this amendment. The amendment goes on to say that the disciplinary action taken by the union must be reasonable in all the circumstances of the case. It gives the member a right of access to the industrial tribunal under subsection (3B) in circumstances in which:
"the industrial tribunal shall determine whether the disciplinary action was reasonable for the purposes of that subsection having regard to the circumstances of the member, the interests of the other members of the union and the actions of the parties to the dispute giving rise to the strike or other industrial action, in accordance with equity and the substantial merits of the case".
We are not standing on the exact words in the amendment. The Government may say that some words are not acceptable. We are prepared to take back the amendment and look at it again. Even better, we should like the Government to do that. We are suggesting that there should be a minimum disciplinary right and that it will of course be dependent on the achievement of a ballot; but even then it will be dependent on the discipline being reasonable and upon the individual trade unionist having a right to complain to an industrial tribunal if it is not reasonable. I beg to move.
4.30 p.m.
Lord Rochester: My Lords, I wish to support this amendment because it is consistent with the amendment that I moved in Committee, to which the noble Lord, Lord McCarthy, referred, which sought to negate the Government's proposal that individual union members should not be disciplined by their union if they refuse to take part in industrial action, even when that action has been endorsed by a prior secret ballot.
Although the principle underlying my amendment was strongly supported by eminent Members on both sides of the House, I accept that it was defeated and therefore I do not propose to rehearse once more the arguments I then adduced in support of that principle. However, the amendment now before us is more modest in its purpose in seeking merely to limit, on grounds which seem to me to be altogether reasonable, the extent to which unions are to be debarred from disciplining members who fail to abide by majority decisions arrived at after properly conducted ballots.
Indeed, as I see it, the operative word in the amendment, which occurs several times, is "reasonable". Therefore, I hope that the House will view it in that light and that it will command wide support.
Lord Boyd-Carpenter: My Lords, I am a little surprised that the noble Lord, Lord Rochester, supports this amendment because in the days when

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the Liberal Party was a great party it took pride in standing for the rights of the individual against all presuming authorities and against all who would interfere with his right to regulate his life. This amendment largely and substantially negates the provisions already in the Bill in Clause 3 which are designed, as we discussed at some length in Committee, to protect the rights of the individual against those in his union who would seek to discipline him if he does not follow their instructions when they call a strike. There is therefore a clear clash between the interests of the union and those who operate it, on the one hand, and of the individual, on the other.
The Bill as it stands, and, as I understand it, the attitude of the Government, are in favour of the individual. It is, after all, quite serious for an individual to be subjected to punishment not by any official body, not by any court of law and not by any body set up by Parliament but by what is basically a private organisation which, if it can secure a majority in a ballot for certain action, seeks to have and to retain the power to punish individuals.
The noble Lord, Lord McCarthy, seemed to brush aside the very important questions that an individual has to consider before deciding whether to take part in a strike. The noble Lord does not succeed in negating the concept—at any rate as far as I am concerned—that the individual, who of course owes a duty to his union, may also in these circumstances have a conflicting duty to his family whom he has to support and may well feel (as I am happy to believe many do in this country) a loyalty to his employer. He may not wish to see his employer damaged not merely through altruism but because he may have been working for some years for the company and in such circumstances it is very much contrary to his interests if the company is damaged. It is common experience that strike action does very serious damage to many companies.
Ingeniously, this amendment seeks to get round the very real difficulties behind the line of those who wish to retain the power of punishment by saying that in the ballot a notice should be included stating:
"If this action is supported by the majority vote, failure to take part in it may render a member open to disciplinary action under the rules".
That does not alter the situation. The individual concerned may decide to vote for action. One could argue that if he has been warned in that way and then does not comply, he has taken the risk upon himself. However, he may decide to vote against action and as the amendment stands he is just as liable to punishment if he has voted against action as if he has voted for it. Indeed, I can well see that no one taking the trade union point of view would wish to put in the notice that to vote for industrial action and not take part renders one liable to be punished, as that would constitute a substantial inducement to many to vote against action.
However, we come back to the question on which we spent a great deal of time in Committee—rightly, because it is an important one. When industrial action is taken and an individual for whatever reason (whether the multiplicity of obligations to which I
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have referred or his genuine dislike of the action being taken) does not support that action, should he then be liable to very serious punishment? The punishment is and can be serious. The amendment does not get away from that by providing, as it seeks to do, that the punishment shall be "reasonable". By putting in that provision it is reaffirming that punishment as such is intended and is justifiable.
This is perhaps the clearest example of all in the Bill of the clash of view between those of us who, like myself, put the interests of the individual first and those who prefer the interests of those who run our unions.
Lord Donaldson of Kingsbridge: My Lords, I am interested in this argument because it is very convincing taken from one side. However, would the noble Lord use exactly the same arguments if the vote went against a strike and a determined number of people insisted on striking? It seems to me that such arguments would come oddly from him.
Lord Boyd-Carpenter: My Lords, I am not in favour, whichever way the vote goes, of an unofficial body imposing punishment on British citizens.
Lord Renton: My Lords, I too am opposed to this amendment. It is fundamentally contrary to the purpose, the letter and the spirit of Clause 3. In the nature of things this clause is intended to protect those union members who as a matter of conscience, of judgment or to support a wider loyalty than their loyalty to the union refuse to take industrial action.
The clause is also aimed, and expressly so, at protecting union members from being oppressively dealt with if they refuse to strike. We have gone over the arguments on the wider loyalties in the past but they are important and I shall quickly summarise them. They could include a loyalty to the national interest, a loyalty, as my noble friend Lord Boyd-Carpenter has said, to the employer, teachers' loyalty to their children, nurses' loyalty to their patients, or loyalty to the freedom of the press—and that was very evident at Wapping.
The amendment envisages two possibilities. The first possibility is that a strike or other industrial action has been supported by a ballot which satisfies the provisions of the law of 1984. That begs the whole question. It is perfectly plain from subsection (1) that the background of this is that there will have been a lawful ballot resulting in a lawful strike. Let us take paragraph (b). Perhaps I may say in passing that the reference to Section 11(3) of the 1984 Act may not be what the mover of the amendment intended because it says:
"The method of voting in the ballot must be the marking of a voting paper by the person voting".
There is no reference to a statement.
Lord Wedderburn of Charlton: My Lords, I do not wish to interrupt the noble Lord but, as he invites me, the noble Lord will find the statement in the same schedule which we referred to before.
Lord Renton: My Lords, I am most grateful to the noble Lord. He has done his homework in a more advanced way than I have, and more thoroughly.

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Let us come to the statement which may be added if it is shown that it has been placed after the statement required by Section 11(3), as amended. My noble friend Lord Boyd-Carpenter has already referred to this, but I would say that that is a tyrannous way of opting out of the express provisions of a statute; namely, the earlier provisions of Clause 3 which we have before us. On either ground that is mentioned there, it seems to me to be unreasonable.
Lord McCarthy: My Lords, did the noble Lord say tyrannous?
Lord Renton: My Lords, yes. I say that it is tyrannous to make men sign a statement like that which denies them the rights which Parliament intends to give them.
We come to paragraph (c) as the other possibility envisaged by the amendment—that the disciplinary action taken by the union is reasonable in all the circumstances of the case. I concede that there is a little bit more justice in that, but, quite frankly, in view of the earlier provisions it does not seem to fit. It does not seem to me to make sense.
One could go on criticising this amendment, but I simply summarise my opposition to it on the ground that it is a wrecking amendment.
4.45 p.m.
Lord Basnett: My Lords, perhaps I may give a different view of Clause 3 from that given by the noble Lord, Lord Boyd-Carpenter. I think that this clause and its effects are dangerous for industrial relations. It could have two effects. First, it would create an opportunity for action by unofficial bodies, which I am sure would not be welcomed by any of your Lordships. Secondly, and more importantly, it weakens the authority of responsible trade unions. I think that these are two very serious issues to be considered when debating this matter.
If unions are responsible for disciplining their members who refuse to follow a union's democratically determined policies, there is no room for unofficial bodies (what are being called dissidents) to do similar things. We have to emphasise that union procedures for disciplining members are fair and exhaustive. I must make this point strongly: they are used to conciliate more than they are used to punish. I should like to illustrate my own union's procedures for this purpose.
Any member the branch wished to have disciplined for failing to follow union policy was referred to a regional executive committee. The regional executive committee heard the representatives of the branch and the member and conveyed their decision to the member in writing and informed him, if necessary, of any further stage of appeal that was open to him. The next stage of appeal was to the national executive of the union. The decision was similarly conveyed to the member, informing him of a further right of appeal to a separately elected, distinct appeals body. During my 15 years as general secretary I cannot recall one instance of a discipline in relation to a strike coming to that appeals body because that lengthy procedure had invariably conciliated what, in the emotions of a
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strike, could be warring factions. That is the reality of what happens in most unions on these subjects.
If that disciplinary power is taken away from a union, a vacuum is created. If a vacuum is created in the emotional circumstances of an industrial dispute, then others will rush to fill the vacuum. This would help those militant dissidents whom none of us wishes to help.
The second point is possibly more important. This would weaken the authority of responsible trade unions. In the debate in Committee there were some curious arguments about the purpose of trade unions and the nature of strikes. Trade unions exist —and I think we would not argue about this—to represent their members to employers, to governments and to all those organisations who affect their quality of life. However, their prime purpose and task is to make representations to their employers, to negotiate with them and to establish agreements with them. That is how they spend most of their time. Strikes do not occupy the majority of trade union time. Most trade unionists are never involved in industrial action. The British trade union movement has never been at the top of the hours lost strike league throughout the world.
Strikes occur when there is a breakdown of relationship between employers and trade unions. The one vital factor involved is that members want that strike. I think that that is an important point to realise. Views have been expressed about persuading members to come out on strike. In 40 years as a trade union official I cannot recall having to persuade members to go on strike. I can recall quite vividly having to persuade them not to go on strike because it would not be in their interests. When I was doing that I was backed up by the disciplinary powers which the union has. When a strike occurs the union official and the union executive need all the authority and control that they can exercise to prevent squabbling between groups, to ensure responsible conduct of the dispute and to effect a peaceful conclusion. For that authority they need the back-up of properly decided disciplinary action through the procedures I have described.
If one part of that disciplinary action is taken away, the rest of it is weakened. How in practice could you discipline those members who refused to return to work when the executive says that they should, when you cannot discipline members who refuse to go on strike at the beginning? How in practice could one discipline members who started a strike without executive authority when one could not discipline members who would not start a strike when there was executive authority? That is impracticable.
This is undermining responsible trade unions. Not only does the clause stand democracy on its head, but is offers loopholes through which militant dissidents can act. I repeat: it undermines responsible trade unions. The amendment would avoid those consequences.
Lord Renton: My Lords, does the noble Lord agree that nearly all the legislation with which we have to deal in Parliament is not for governing the affairs of responsible majorities but for governing the affairs of less responsible individuals and bodies?
Lord Basnett: My Lords, I have described how responsible trade unions act and what the effect of the Bill, if enacted, would be on them. As a trade unionist, that is the point that I wanted to make.
Lord Mottistone: My Lords, I think that the argument put forward by the noble Lord, Lord Basnett, is very powerful. From what I know about his union, what he tells us is absolutely true.
I have talked over the years to individuals who have been called out on strike when they have not wanted to strike and, in particular, have not wanted to forgo any income, which would necessarily follow from striking. They have not seen the point of it and they have done it knowing that, if they were not to follow the strike, they would be disciplined by their union and might be beaten up by other members. Therefore, one must not look at it altogether from the point of view of the management and the union. As both my noble friends have said, the clause is about protecting the individual.
As I said on Second Reading, I do not believe that the effect of the clause on weakening the authority of unions is nearly as bad as some suggest that it may be. If a union leadership—encouraged no doubt by the majority of its members—finds itself calling out a strike at whatever level and of whatever kind and there is, let us say, a two-thirds majority in favour of it, many people in the one-third who are not in favour will perfectly properly take the majority decision and follow the process. People may vote in a certain way and accept the situation that results. However, when it comes to the point, the effect of the strike can be justified as powerful from the point of view of the leadership, if you like, because not enough people will seek to go back to work, Clause 3 having been enacted. In practice I do not think that it will be found to be nearly as bad from a union point of view as is now thought.
I should have thought that it was in the interests of the trade union movement—I say that very humbly, having had a long association with the movement and having great respect for it when I worked in its midst—as well as in the interests of Parliament to support the principle of Clause 3 on the ground that it is very important for the individual union member not to feel that he is potentially subject to bullying by his union at whatever level. That is what has happened in the past. I observe that the noble Lord, Lord Basnett, shakes his head. I am sure that he has never bullied anybody. He is much too large to bully people; in my opinion, large people do not bully. I am sure that he will also know that in many cases at various levels in unions bullying has been excessively prevalent in the past. The bullying has been not only of members but also of small employers.
I suggest to noble Lords on the Opposition Benches that it is a good plan to enact Clause 3 and see how it works. If it has the deleterious effect referred to by the noble Lord, Lord Basnett, we can come back to Parliament and seek to have it changed at a later date. I certainly think that it is worth giving it a chance now. I hope that the noble Lord will agree with that procedure.
Lord Basnett: My Lords, will the noble Lord, Lord Mottistone, accept that one of my arguments is that the clause would cause the very bullying that he says now exists?
Baroness Seear: My Lords, I wish to ask the noble Lord, Lord Mottistone, whether the cases that he has mentioned occurred before the introduction of ballots for strikes. The introduction of the ballot, which we all support, surely alters the position substantially.
Among those opposed to the clause are ex-trade union leaders in the House who have had powerful reputations throughout their working lives for responsibility and for knowledge of what happens in the movement. I ask your Lordships to consider whether their knowledge and experience should not be taken into account.
Lord Murray of Epping Forest: My Lords, one of the precise purposes of the amendment is to prevent bullying. In the tensions and heightened emotions of a pre-strike situation and of a strike situation, there is a natural, if indefensible, tendency on the part of some people to be angry and incensed. One purpose of a union's disciplinary procedures is to stop individual members of the union from taking the law improperly into their own hands in regard to those who refuse to stand solidly with the rest of the members and from doing things of which none of us would approve.
The disciplinary rules enable the official—I have seen this happen—to say to members who are jumping up and down, "Cool it, we will deal with this in our own way in the proper way: the executive will deal with this breach of discipline". If one takes away from that official and from the executive the right to tell people to cool off and calm down, one will do no service to industrial relations or to the individual member who has been improperly threatened with the bullying, if one wishes to use that word, to which the noble Lord, Lord Mottistone, referred. The purpose of the amendment in seeking to defend the disciplinary procedures of the union is precisely to reduce the danger of individual action by incensed members.
Another purpose of the amendment, as I understand it, is to make it less difficult to settle disputes. One thinks of a situation where a strike has been going on, tempers have been raised, people have been incensed and they are arguing with each other and asking, "Shall we go back?". The official may have been preparing their minds for a return to work. It comes to the point that he is arguing that there should be a return to work. What will happen? Somebody will get up and say, "What about those three fellows who crossed the picket line and went to work?" The official will say, "Never mind about them. They will be dealt with in another way". The men who are out on strike will have an additional grievance and will find it much more difficult to accept a recommendation to return to work until something has been done about those three men.
I am not defending irresponsibility or things done in anger or because of resentment. However, I am telling the House that it will be much more difficult to

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persuade men to go back in an orderly way if they feel that action has been taken by a small group against the interests of the majority of the union as determined by a ballot.
I ask the House to take account of the fact that this amendment will, first, reduce the danger of action against dissident members of the union by keeping control firmly with the disciplinary procedures of the union which ultimately are accountable to the courts of the land; and, secondly, it will remove one additional problem—they are always there—of how to get the men back to work when there is the prospect of a resolution of the dispute.
5 p.m.
Lord Dean of Beswick: My Lords, the case against the Government's intention has been put very eloquently by my colleagues, my noble friends Lord Basnett and Lord Murray. They speak as former trade union officials. As a former shop steward, I speak from a more humble position in the trade union movement. Shop stewards are at the sharp end of any industrial action.
When speaking on the amendment the noble Lord, Lord Renton, gave a shopping list of reasons under which people will be entitled to the fullest protection under the opting-out clause. Having balloted, and lost, people will be able to decide that their conscience will not allow them to conform with a decision that may have been reached overwhelmingly by members of the same union. I am not aware of frequent resorts to thuggery within trade union disputes. I am not saying that there have not been instances in the past, but I regret those, as does any Member of your Lordships' House. I speak as a former shop floor worker and shop steward in a large factory.
If in an official ballot there is an overwhelming vote in favour of the strike, do noble Lords think it right that people who have had the benefit of a ballot should then be able to renege on the result? That is how it will be seen by their colleagues. I say not as a militant Left-wing trade unionist but as a grass roots trade unionist that anyone who acts in that way will have lost for all time the support and confidence of his colleagues in the workplace. Even Right-wing trade unionists will not tolerate somebody who wants the best of both worlds and will not go along with the majority when a decision is arrived at democratically.
I suppose that the provision will become law but it is a recipe for disaster. In insisting that the provision goes through, I can only think that the Government have not listened to leaders of industry and of the trade union movement. For the life of me I cannot see how a law to give individuals protection will be able to do so. I say from experience that Parliament may give them the protection of the law but within the establishments in which they work they will be looked upon as pariahs for all time and will be dealt with in an appropriate way. We have heard of people being sent to Coventry. It is inhuman to ask responsible trade unionists who have stood by the law and have accepted a democratic ballot to behave differently. The Government are playing with dynamite, and the sooner they realise it the better.
Lord Wyatt of Weeford: My Lords, I should like to support the amendment. We have said to the trade union movement that we shall all be democrats, that we shall provide elaborate machinery to make sure that ballots are conducted properly, that the people the members intend to elect are elected and that the decisions taken are the genuine decisions of the members. Then we say to them that this will operate for all issues other than a ballot for a strike so that if the minority do not like the majority verdict they can act accordingly. This goes to the root of what a trade union is about. If it cannot have collective association it is nothing. If it cannot depend on the loyalty of members when they have arrived at a collective decision it can make no headway with employers or even with its own members.
I have tried to explain this before to the Government. Fundamentally it is a mistaken notion that in a properly conducted strike ballot a majority verdict should be ignored if it is in favour of a strike. In any case it will not work because people will disregard this provision and unnecessary bitterness will be created. It will not be accepted by the great majority of trade unionists who have a fundamental loyalty to their union. They are members of it. It is the same as any other organisation. Why should they want to go against a majority verdict?
Even at this late stage I hope that the Government will look again at this issue. Otherwise they will be liable to the charge that what they really want is the destruction of trade unions. I know that that is not the case. I know that the Government are keen on good, sensible trade unions, led by people who represent their members. They are not in favour of destroying them. If we did that there would be more chaos in industry as a whole.
Lord Trefgarne: My Lords, as the House will recognise, this amendment is similar to ones which were discussed in Committee and on which your Lordships reached a clear view following a Division. I note that it contains some new elements, like the warning on the ballot paper, but your Lordships will not be surprised to hear that it is still unacceptable to the Government.
As I said in our earlier discussion, a strike ballot is of direct benefit only to the union. It must hold one to retain its privileged position of immunity from legal proceedings. The result of a ballot gives the member a useful indicator of the opinion of other employees but the decision whether to strike is necessarily a decision for each individual. The ballot does not affect what the employer is entitled to do if the member strikes. It does not, nor should it, protect the member against dismissal or legal action by his employer. In addition, as I have remarked before, a member could be in some doubt as to whether a ballot satisfied the 1984 Act. In the final analysis this could rest on a court case. Members' protection under the clause would not depend on the outcome of other potential legal proceedings.
I am sorry if I am repeating arguments that your Lordships have heard before, but it is clearly the case that in practice people may change their minds after voting in a strike ballot. If they do, the only way they may have to express that change is to vote with their

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feet by returning to work. Moreover, the circumstances constantly shift. The situation when the member makes his decision will hardly ever be the same as it was at the time of the ballot.
Therefore, however it is dressed up, the amendment is still based on the assumption that all those who are called upon to take industrial action must do so on pain of discipline. As your Lordships know the Government do not share that assumption. We believe it is the individual alone who must decide whether to strike and that it would be unreasonable to protect against union discipline only those who did not join an unballoted strike.
Baroness Seear: My Lords, will the Minister tell us whether he accepts that the union should be able to discipline members who, when the ballot has gone against a strike, continue to strike? Will he be evenhanded on that point?
Lord Trefgarne: My Lords, I intend to answer the amendment on the Marshalled List. We have had a very full discussion on the matter.
Lord Donaldson of Kingsbridge: My Lords, I asked that question earlier
Lord Chapple: My Lords, can the Minister say what is likely to happen to the individual, in the case of a successful strike ballot, when he returns to work and the employer says, "No, there is no work for you because the majority of people are not here anyway. I do not want you in, I want you to stay out with the rest"? Such a case has arisen on numerous occasions when there have been disputes.
Lord Trefgarne: My Lords, that, if I may say so, is an entirely different situation and not the one which is addressed by the clause, or the amendment. The Government have made it very clear that we see the clause as fundamental to this part of the Bill. Noble Lords had a full debate on the matter in Committee and, I believe, reached a clear conclusion on that occasion. I hope that your Lordships will, on reflection, consider that that conclusion was the right one and that the amendment is to be resisted.
5.15 p.m.
Lord McCarthy: My Lords, we have had a most interesting debate and I should like to begin by thanking all those who have supported the amendment; namely, the noble Lords, Lord Rochester and Lord Donaldson, who stressed the fact that the amendment was reasonable. We certainly intended it to be reasonable as the noble Lord, Lord Rochester, inferred, and the word "reasonable" appears many times in the amendment.
I should also like to thank the noble Lords, Lord Basnett, Lord Murray of Epping Forest and Lord Wyatt of Weeford, because they also pointed out that the fundamental objective of disciplinary powers in a trade union is in fact to make the union able to act effectively in a conciliatory and sensible way—frequently by keeping back extremists within the union—because it is able to emphasise the
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importance to trade unionists of the majority principle. The majority principle is the foundation of trade union action. Without the majority principle and the ability to appeal to the loyalty of members which arises from the expression of the majority principle through a fair and accurate ballot, the trade union movement cannot function.
Therefore, while I am pleased to hear the noble Lord, Lord Wyatt, say that he sincerely believes—I think he does—that the Government do not want to destroy trade unionism but that they in fact support trade unions and that they have in their mind an acceptable view of trade unionism, I ask him nevertheless to think whether what he says is absolutely right. If one will not allow, in any circumstances, the use of reasonable trade union discipline in order to maintain the majority principle, people will not understand what trade unions are about. It is difficult to believe that the Government favour them because they do not understand what it is that they are supposed to favour.
I shall turn to the speeches of those who spoke against the amendment. Obviously I cannot deal with all of them, but I should like to mention the remarks made by the noble Lord, Lord Boyd-Carpenter. In his quintessential approach to the amendment he represents precisely what the Government get wrong. He said—he does not use words accidentally; I took down what he said and hope that it is right—that we must not allow those who operate the trade unions to push the individual around. We are not asking that those who operate the trade unions should be able to push individuals around; we are asking for a majority ballot and that the majority should decide, not those who operate the trade unions.
Those who say that the British trade unionist, the British worker, is manipulated in such a way that it is terribly easy to make him vote in a majority for a strike that he does not want are insulting him by suggesting that he alone can be manipulated in that way.
Lord Boyd-Carpenter: My Lords, I think the noble Lord has confused two quite separate matters. First, there is the ballot for industrial action which he has described perfectly fairly; and, secondly—what the amendment bites on—what happens after the ballot when those who operate the union under the present law are free to punish those who did not take part. That is what I object to.
Lord McCarthy: My Lords, the noble Lord is again missing the point. The mandate, as he insists upon calling it, or "those who operate the union"—I suppose he means the properly elected leaders—derives from a majority ballot that expresses the will of the majority. I am bound to point out that the principle of a majority as against the minority is accepted in this House.
We accept that there are certain actions we cannot take because the Government have a majority in another place; of course we accept that. The majority decides who is the chairman of large companies; that is, the majority of those who turn up at the shareholders' meeting. In professional associations the majority decides what disciplinary matters it will

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impose upon its individual members. The majority is the only principle that one can have in civilised society because, if the majority does not decide, the minority will. We are saying that what is reasonable and acceptable, with proper protection, in every other form of civilised life ought in some circumstances—however restricted—to apply to trade unions.
The noble Lord, Lord Renton, said that we must not pass the amendment because it is against the spirit of Clause 3. Yes, perhaps it is; but only in its most extreme form and only if one says that Clause 3 provides that in no circumstances are trade unions entitled to express solidarity. He then said that it was tyrannous. I must say that I am at a loss to explain that statement at all. He described it as tyrannous—again, I wrote it down and I hope it is right—because it denies a right which Parliament intended to provide. However, it is so only if Parliament passes the amendment and decides to modify what it intended to provide in the unamended Clause 3 of the Bill. We are not asking for tyranny; we are asking that the majority principle should apply. We know that if the House were to pass the amendment it would still have to survive the other place and the majority of Parliament would have to decide to modify the clause accordingly. Therefore, I ask: where is the tyranny in that?
I could continue talking about the remarks of various speakers but I should like to end quickly by referring to what the noble Lord, Lord Trefgarne, said, because it will not take long. Much better and fuller arguments, if I may say so, were put forward by other speakers in this debate than those advanced by the noble Lord. He made two points. He said that the decision to strike was a matter for the individual; in other words, the Government are saying, as they said before, that there is no right to strike in this country per se and that there will be no such right. No government have accepted that principle openly and knowingly since 1871, but in the name of Her Majesty's Government the Minister says that there is no right to strike in this country; that decision is a matter for the individual, without any protection, because the individual can be instantly dismissed without compensation if he goes on strike. Unless one may strike in some circumstances without instant dismissal being imposed, I say that there exists no right to strike. That is the first point that the noble Lord, Lord Trefgarne, put forward.
The noble Lord's second point was that the trade unions will have to accept that the employer can retain the right to punish and to discriminate. But the very existence of the employer's right to punish and discriminate against those who go on strike is the basis of saying that the trade unions cannot have a comparable right. We say that that is unacceptable. We shall not withdraw the amendment. We shall divide the House.
Lord Trefgarne: My Lords, before the noble Lord sits down, perhaps I may, with the permission of the House, ask him whether he realises that what he was attributing to me was not the speech that I delivered this afternoon; it must have been another one in his own imagination.
Lord McCarthy: My Lords, I do not wish to misstate what the noble Lord said. We shall have to see what Hansard says. I believe that my summary of his speech was fair. If it was unfair, I shall of course withdraw it.
5.21 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 100; Not-Contents, 112.

DIVISION NO. 3

CONTENTS

Addington, L.

Kilmarnock, L.

Airedale, L.

Kinloss, Ly.

Amherst, E.

Lawrence, L.

Ardwick, L.

Lloyd of Kilgerran, L.

Aylestone, L.

Lovell-Davis, L.

Banks, L.

McCarthy, L.

Basnett, L.

McIntosh of Haringey, L.

Beaumont of Whitley, L

Mackie of Benshie, L.

Birk, B.

McNair, L.

Blease, L.

Molloy, L.

Blyth, L.

Monson, L.

Bonham-Carter, L.

Morton of Shuna, L.

Boston of Faversham, L.

Mulley, L.

Bottomley, L.

Murray of Epping Forest, L

Briginshaw, L.

Nicol, B. [Teller.]

Brooks of Tremorfa, L.

O'Brien of Lothbury, L.

Bruce of Donington, L.

Oram, L.

Carmichael of Kelvingrove, L.

Peston, L.

Carter, L.

Phillips, B.

Chapple, L.

Pitt of Hampstead, L.

Cledwyn of Penrhos, L.

Ponsonby of Shulbrede, L. [Teller.]

Cocks of Hartcliffe, L.

Dacre of Glanton, L.

Rea, L.

Davies of Penrhys, L.

Ritchie of Dundee, L.

Dean of Beswick, L.

Rochester, L.

Donaldson of Kingsbridge, L.

Russell, E.

Dormand of Easington, L.

Sainsbury, L.

Elwyn-Jones, L.

Seear, B.

Ewart-Biggs, B.

Serota, B.

Falkland, V.

Shackleton, L.

Fisher of Rednal, B

Shepherd, L.

Foot, L.

Somers, L.

Gallacher, L.

Stedman, B.

Galpern, L.

Stewart of Fulham, L.

Graham of Edmonton, L.

Stoddart of Swindon, L.

Greenway, L.

Strabolgi, L.

Gregson, L.

Taylor of Blackburn, L.

Grey, E.

Taylor of Mansfield, L.

Hampton, L.

Tordoff, L.

Hanworth, V.

Turner of Camden, B.

Harris of Greenwich, L.

Underhill, L.

Hooson, L.

Wallace of Coslany, L.

Hughes, L.

Walston, L.

Hylton-Foster, B.

Wedderburn of Charlton, L.

Irvine of Lairg, L.

White, B.

Jacques, L.

Williams of Elvel, L.

Jay, L.

Willis, L.

Jeger, B.

Winchilsea and Nottingham, E.

Jenkins of Hillhead, L.

John-Mackie, L.

Wyatt of Weeford, L.

Kilbracken, L.

Young of Dartington, L.

NOT-CONTENTS

Abinger, L.

Bessborough, E.

Airey of Abingdon, B.

Blatch, B.

Alexander of Tunis, E.

Boyd-Carpenter, L.

Ampthill, L.

Brabazon of Tara, L.

Arran, E.

Brougham and Vaux, L.

Auckland, L.

Bruce-Gardyne, L.

Bagot, L.

Caithness, E.

Beaverbrook, L.

Campbell of Croy, L.

Beloff, L.

Carnock, L.

Belstead, L.

Cawley, L.

479

Colnbrook, L.

Monk Bretton, L.

Constantine of Stanmore, L.

Mottistone, L.

Cottesloe, L.

Munster, E.

Cox, B.

Nelson, E.

Craigavon, V.

Newall, L.

Craigmyle, L.

Nugent of Guildford, L.

Cullen of Ashbourne, L.

Onslow, E.

Davidson, V. [Teller.]

Orkney, E.

Denham, L. [Teller.]

Orr-Ewing, L.

Dundee, E.

Pender, L.

Eden of Winton, L.

Pennock, L.

Ellenborough, L.

Peyton of Yeovil, L.

Faithfull, B.

Porritt, L.

Ferrers, E.

Portsmouth, E.

Fortescue, E.

Pym, L.

Fraser of Kilmorack, L.

Renton, L.

Gainford, L.

Renwick, L.

Gisborough, L.

Rodney, L.

Gray of Contin, L.

St. Davids, V.

Hailsham of Saint Marylebone, L.

Saltoun of Abernethy, Ly.

Sanderson of Bowden, L.

Hanson, L.

Sandford, L.

Hardinge of Penshurst, L.

Sempill, Ly.

Harvington, L.

Shannon, E.

Havers, L.

Sharples, B.

Hesketh, L.

Skelmersdale, L.

Hives, L.

Strange, B.

Holderness, L.

Strathcarron, L.

Hood, V.

Strathspey, L.

Hooper, B.

Terrington, L.

Jenkin of Roding, L.

Teviot, L.

Joseph, L.

Thomas of Gwydir, L.

Kaberry of Adel, L.

Thorneycroft, L.

Killearn, L.

Trafford, L.

Kimball, L.

Tranmire, L.

Lauderdale, E.

Trefgarne, L.

Layton, L.

Trumpington, B.

Long, V.

Vaux of Harrowden, L.

McFadzean, L.

Waldegrave, E.

Mackay of Clashfern, L.

Ward of Witley, V.

Malmesbury, E.

Westbury, L.

Mancroft, L.

Whitelaw, V.

Margadale, L.

Wise, L.

Massereene and Ferrard, V.

Wolfson, L.

Merrivale, L.

Young, B.

Mersey, V.

Zouche of Haryngworth, L

Milverton, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.30 p.m.
Clause 6 [Right to inspect union's accounting records]:
Baroness Lane-Fox Baroness Lane-Fox moved Amendment No. 8:
Page 10, line 48, at end insert ("except that accounting records of a limited company through which a trade union carries on any commercial activity shall not, for the purposes of this Act and the 1974 Act, be treated as accounting records of that trade union;")
The noble Baroness said: My Lords, this amendment in the names of myself and my noble friend Lady Faithfull was proposed by my noble friend at the Committee stage. On that first occasion my noble friend Lord Dundee on behalf of the Government agreed to reconsider the matter and my noble friend also said that she would take advice. On that first occasion she explained that the reasons concerned confidentiality. It was pointed out that some trade unions have certain of their activities carried out through a limited company. This is the case with the Royal College of Nursing, which is a trade union and carries out activities through Scutari Projects as publishers. Scutari Projects is a publishing company which publishes a professional paper for the Royal college. A rival firm, Macmillan's Press, publishes the Nursing Times. Without this
480
amendment Macmillan's would have access to the commercial company acting for the Royal college. I feel sure that the Minister, with his quick understanding and nice sensitivity to delicate situations, will not need me to say more. Therefore, with pleasure, I beg to move.
Lord McCarthy: My Lords, I hope that this will help the noble Baroness. When the matter was discussed in Committee we said that we thought that this was an eminently reasonable amendment and we hoped that the noble Earl would be able to do something. He said, if I remember rightly, that the amendment was not necessary; it was unnecessary because Macmillan's could not recruit a nurse and then get the nurse to ask for the records of the Royal College of Nursing journal. My answer to that, which I think the noble Baroness, Lady Seear, mentioned when this was being discussed, was that even if it was unnecessary, why not make it clear and reassure the Royal college?—to which the noble Earl, Lord Dundee, replied that this was one of those amendments he wanted to take away and look at. By his silence we are afraid that it may be one of those which fell through the hole, so we hope that he will help.
Baroness Faithfull: My Lords, I rise as I have put my name to this amendment and I wish to make two points. Even if this provision is in another Bill, as the noble Lord, Lord McCarthy, and the noble Baroness, Lady Seear, said the last time, why should people have to look to another Bill when it could so easily be in this Bill? Secondly, I fear that having this provision in another Bill could lead to court cases in order to prove that it applied to this Bill. That would be most unreasonable. Therefore I support my noble friend Lady Lane-Fox.
The Earl of Dundee: My Lords, as my noble friend Lady Lane-Fox has just pointed out, I agreed to give further consideration to the points made in our previous debate on the subject. I have done so and have concluded that the amendment should not be accepted. As I said in the Committee debate, Clause 6 creates a member's right in respect of access to the accounting records of his union. It does not provide for access to the accounting records of any other body. Limited companies through which trade unions carry on commercial activities cannot be trade unions. So it is already the case that the provisions of the 1974 Act, and those of Clause 6, have no impact on their affairs.
What I stated during the Committee debate was based on legal advice about this point, and that advice has since been confirmed. It was put to me in the Committee debate on Amendment No. 49, I think, that the amendment should be accepted on a "belt and braces" approach. The noble Baroness, Lady Seear, asked what harm it would do to accept the amendment on those grounds. The noble Lord, Lord McCarthy, reiterated that point just now and said that if we could dot the "i"s and cross the "t"s on it, why not?
I still have some sympathy with the point, but it is clear that good law is not made by including in statute unnecessary provisions. If such provisions are

481
included, they tend only to confuse and mislead. Our statute law is based on the premise that it is only necessary to say a thing once. If it is said twice, the courts will be inclined to look for further meaning in the repetition or to assume that in the first saying the desired effect was not achieved. In the light of these remarks, I hope that my noble friend may see fit to withdraw the amendment.
Baroness Phillips: My Lords, before the noble Earl sits down, is he saying that there is no Act of Parliament where a statement is repeated twice? I find this fascinating, having sat in the House of Lords for a long time. Surely it is quite common in Acts of Parliament to have the reiteration of principle. This cannot be the reason why the Government are not accepting the amendment.
The Earl of Dundee: My Lords. I take the noble Baroness's point. We are frequently accustomed to seeing repetition in various Acts. In this case the point is made in other legislation and probably my remarks should be seen in the context of what we are talking about. It is in this context that there would be a risk that if we repeated ourselves the courts would be suspicious and look for a further meaning.
Baroness Lane-Fox: My Lords, I find this very disappointing news to take back to the Royal College of Nursing, which after all is playing such a very important part in the training of nurses. Most of us know that nurses are in short supply today. I had hoped that in view of these points the Government could have helped us more. However, I suppose, having heard what the Minister has had to say, that the noble Baroness, Lady Faithfull, will support me in saying that regretfully we shall not divide the House and we shall withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 9:
Page 11, line 10, at end insert—
("(9A) Nothing in this section—

(a) shall require a union to disclose any matter to a member in contravention of a duty imposed upon the union otherwise than under this section by any rule of law or any enactment;

(b) shall affect accounting records other than those kept according to normal accounting standards concerning the transactions, assets and liabilities of the union, in order to give a true and fair view of its affairs.")

The noble Baroness said: My Lords, noble Lords will remember that in Committee (at cols. 533–535 of Hansard) we moved from these Benches amendments designed to protect confidentiality of union records and accounts. We were also endeavouring to define precisely what the records were that had to be made available for inspection by individual members. We drew attention to the fact that the member desiring to inspect records could be accompanied by an accountant who would be bound by the confidentiality requirements of his profession, but the member would be under no such constraint. We gave a number of instances of the problems that this could cause.
Unions as employers have records of payments made quite properly to employees, often on an ex gratia basis, to relieve particular family problems.
482
There are pension payments and other matters. Then there are records of compensation payments achieved by legal action and paid to individual members. Again such members may not want this information revealed. Trade union employees—clerical employees as well as oflicers—have a right not to have their privacy invaded, just as other employees have.
I moved an amendment in Committee suggesting that a union could apply to a court and then the court could make an order if it thought appropriate. The noble Earl indicated at that time that he would give this consideration. But he does not appear to have thought it sufficiently important to bring forward an amendment. We are therefore returning to this clause with a further amendment.
Paragraph (a) of our amendment protects confidentiality in the way that an ordinary employer would be able to. Paragraph (b) defines that the accounts available for inspection shall be:
"those kept according to normal accounting standards concerning the transactions, assets and liabilities of the union, in order to give a true and fair view of its affairs".
If the Government are sincere in saying that the proposals in this part of the Bill are not an additional and onerous obligation placed upon unions which they did not have before, we believe that they should be prepared to accept the amendment. I beg to move.
The Earl of Dundee: My Lords, this amendment seeks to make various changes to the scope and terms of Clause 6. If accepted it would undermine the intended effect of the clause, which is to establish a union member's right to inspect his union's accounting records.
It is a fundamental principle of the clause that nothing in the proper accounting records which his union is already under a duty to keep under Section 10 of the 1974 Act should be denied to a member who wishes to inspect any of them.
The new subsection (9A)(a) which the amendment seeks to add to the clause is either unnecessary or, if it does have any effect, it is an undesirable effect. It would mean that despite the provisions of Clause 6 a union could deny a member the right to inspect its accounting records if the disclosure of that information would contravene a duty imposed on the union by "any rule of law". But what exactly does "any rule of law" mean?
One possible interpretation might be that if the terms of a contract to which the union was a party said certain things the effect would be that the union could not disclose certain information in its accounting records to a member without contravening a duty that applied "by rule of law".
The union's own rulebook is a contract between itself and its members. So the rulebook could include provisions which would, if the amendment was accepted, require the union to deny a member the right to inspect accounting records which he might otherwise have done under Clause 6. Clearly that would be unacceptable.
Duty imposed by "rule of law" might also be taken to mean a duty not to commit a tort or breach of trust. However, if a union disclosed information

483
under a statutory obligation such as Clause 6 imposes, no such common law liability would arise.
In the first part of the amendment of the noble Baroness there is also a reference to "any enactment". Here it simply appears unnecessary to state that a union shall not have to disclose any matter in contravention of a duty imposed by "any enactment". Good law is not made by including in statute unnecessary provisions which would only tend to confuse.
As regards the second part of the amendment moved by the noble Baroness, the provisions in what the amendment proposes as the new subsection (9A)(b) are I feel unnecessary.
Subsection (9)(a) in the clause as it stands states what are to be taken as the accounting records which a member will have the right to inspect. They are quite properly the accounting records which his union is already under a duty to keep under Section 10 of the 1974 Act. I can assure your Lordships that the member's right as established by Clause 6 relates to no other accounting records.
If the amendment was accepted it could only be on the basis that there were some other records meeting the description in the new subsection (9A)(b) that were in some way different from those which unions keep under the duty imposed by Section 10 of the 1974 Act. It would, however, cause confusion and difficulty if it was uncertain whether particular accounting records came within the Section 10 description or that of the new subsection.
5.45 p.m.
Lord Wedderburn of Charlton: My Lords, I am much obliged to the noble Earl for giving way. Would we be right in concluding from what he has just said that the proposed new subsection (9A)(b) would be unnecessary on the grounds that he gave and that the clause does not affect accounting records that fall outside Section 10 of the 1974 Act? Of course records outside Section 10 of the 1974 Act include the records of branch property, branch transactions, branch assets and branch liabilities, which figured greatly in our discussions in Committee. It seems that the Minister has just confirmed that those things fall outside the terms of that section.
The Earl of Dundee: My Lords, on the question of branches, if it were argued that the words in the amendment are better than those in Section 10 of the 1974 Act because they do not specifically refer to the possibility that accounting records might be kept by branches or sections of a union, that would be misguided. In fact there is no advantage at all as regards the intended effect of Clause 6. If any of a union's proper accounting records are kept by sections or branches of that union, a member needs to be sure that he has the right to inspect them. Clause 6 will not of course give a member any kind of right to inspect any other kinds of accounting records; for example, the records of what has gone on in a particular section or branch which form no part of the proper accounting records of the member's union.
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In conclusion and in regard to the amendment of the noble Baroness, I hope that the main points that I have made will give her some reassurance that it is not necessary and that therefore she will be able to withdraw it.
Baroness Turner of Camden: My Lords, I am very interested to hear what the noble Earl has said, particularly with reference to the kind of accounts that are regarded as necessary to be available for inspection by members. That certainly clarifies the situation substantially, because he is saying that the proposed new subsection (9A)(b) is not necessary as all that is required are the accounts under Section 10 of the 1974 Act. That is the case if we have understood him correctly. We shall be looking very closely at his remarks and having another look at that matter on Third Reading.
As regards the first part of my amendment, we are still a little worried about the confidentiality aspect, because it can be very important. After all, what, for example, are the requirements under the Data Protection Act and what kind of confidentiality is protected in that regard? Nevertheless, in view of what the noble Earl has said, particularly on the proposed new subsection (9A)(b), I shall withdraw my amendment at this stage. But we shall have another look at this on Third Reading because I want to examine closely what he has said in the Official Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 [Extension to non-voting positions of duty to hold elections]:
Lord Trefgarne Lord Trefgarne moved Amendment No. 10:
Page 14, line 41, leave out ("incidental to the carrying out by the committee of') and insert ("taken into account by the committee in carrying out").
The noble Lord said: My Lords, as your Lordships are aware, Clause 12 is intended to ensure that union leaders are representative of their membership. It therefore extends the 1984 Trade Union Act's election requirements to all members of the PEC, general secretaries and presidents and to those who have the right under the rules or by custom and practice to attend and speak at some or all meetings of the PEC. In this way all those who are members or act as though they are members of the PEC will have to be elected and thus be better able to represent the views of the membership.
This clause closes a loophole in the 1984 Act by means of which certain union leaders have been able to give up their vote on the PEC and so evade the election requirement. The clause is therefore drafted quite tightly to reduce to a minimum any opportunity for evasion, and it is important to avoid producing any new loopholes.
Clause 12(1) adds new subsections (6A) and (6B) to extend the election requirements under Section 1 of the 1984 Trade Union Act. The extension of the election requirements, however, is disapplied where the purpose for which the individual attends is to provide the PEC with factual information or with technical or professional advice with respect to matters incidental to the carrying out by the PEC of its functions.
Your Lordships will recall, however, the discussion we had in Committee and in particular the remarks of among others, the noble Lords, Lord Renton and Lord Boyd-Carpenter, and my noble friend Lord Brentford about the use of the word "incidental". I undertook to see whether the meaning of that part of the subsection could be made clearer.
The Government regard it as important that individuals should not be able to play a full part in the activities of the PEC and yet be exempted from the requirement to be elected. We have therefore been conscious of the need to maintain the original distinction between an individual who offers only supporting advice and does not therefore need to be elected, and one whose contribution goes further than this, participating in the decision-taking itself. We believe this distinction has been maintained. At the same time, we have replaced the phrase containing the word "incidental", which caused some concern, with one which is much more readily comprehensible.
We believe that the amendment will bring clarity where unions had previously claimed that there was uncertainty as to our intentions. I hope that the amendment will commend itself to your Lordships and particulary to those noble Lords who were concerned about the wording when we discussed that matter at Committee stage. I beg to move.
Lord Mc Carthy: My Lords, we are very pleased to see the amendment. We supported a series of amendments designed to widen the functions of officials before they were required to be elected in terms of Clause 12(1). All of those amendments were lost. However, the noble Lord said that he would go away and look at the matter. He said, on 8th March at col. 599 of the Official Report, that the removal of the word "incidental" would have the effect of,
"permitting individuals to play a fuller role in the activities of the PEC while still being exempted from the election requirement".
The noble Lord has taken out the word "incidental" and added the words "taken into account". We think that is marginally wider and certainly clearer. Therefore, we are pleased to see the amendment.
Viscount Brentford: My Lords, perhaps I may express my appreciation to my noble friend for the amendment, which certainly meets the point which I made at Committee stage. I am grateful. However, I should like to raise one small question which one or two people have raised with me. To paraphrase the clause, as amended, which we are discussing, it speaks of people who may attend and speak for the purpose of providing the committee with professional advice with respect to matters taken into account by the committee in carrying out its functions.
That is clear as regards matters taken into account by the committee. What is the position as regards advice on matters not taken into account by the committee? For instance, if a solicitor turns to a committee and says, "Your problems are such and such", and the committee says, "Rubbish. The problems are totally otherwise", that advice is not taken into account.
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Similarly, the wording speaks of professional advice, a decision on which can only be made after the advice has or has not been taken into account. Perhaps my noble friend will agree that my point at the Committee stage would be met not simply 95 per cent. but 100 per cent. if he inserts, after the word "taken", words such as, "or likely to be taken into account". Otherwise, if the advice is not taken into account, I am unhappy about the meaning of the amendment.
Lord Trefgarne: My Lords, I think that my noble friend is asking me to consider whether those whose advice is habitually rejected are nonetheless to be elected to their position. I shall certainly reflect on that matter. However, I have some doubts as to whether we shall wish to put in the Bill.
On Question, amendment agreed to.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 11:
Page 14, line 42, at end insert ("except in cases where the person concerned is an employee of the union who is not himself a member of the Principal Executive Committee, but who works directly under its instruction and whose attendance at meetings is entirely at the discretion of the Principal Executive Committee in order to provide it with such information as it may deem necessary from time to time.").
The noble Baroness said: My Lords, the purpose of the amendment is to endeavour to protect the position of those who are union employees. When the issue was discussed at Committee stage, I pointed out that every union has to have appointed staff. Some of them are full-time officials whose duty it is to undertake certain specialist functions. Clearly that includes people such as, for example, the head of a research department, who would need to be qualified. In many unions there is an education department. My union runs a residential college and has a director of education who is a specialist and who has qualified people working under her. There are health and safety departments, publication departments where journalists may be employed, and so on.
All such people are required, from time to time, to attend meetings of the national executive council and the principal executive committee. Then there are senior officials concerned with particular industry sectors. They may have to meet the principal executive committee to give reports, and the PEC will take note of what they say. That may or may not influence the ultimate policy decision. However, the advice is necessary to the PEC. There may be officials directly responsible for administration or for the finances of the union. Certainly in the latter instance the individual would need to have accountancy qualifications.
Those people may have many different titles. However, the functions they perform are essentially administrative. They are the union's civil service. They are employed on normal contracts of employment. Those contracts are often very similar to those which the union may negotiate for its own members, particularly for those who are in senior appointments in commerce and industry. I am sure that a number of members would be glad to hear from the Minister that a normal employment

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contract, which can be terminated by notice on either side and which has normal employment conditions, including superannuation rights, and so on, is somehow a job for life. That was the term that was used in discussing the matter at Committee stage. Many of those people would be happy to know that. However, that is clearly not what the Government mean.
What the amendment seeks to do is to put the matter beyond doubt. Individuals employed on normal contracts of employment who work directly under the instruction of the PEC and who are employed by the PEC, but whose duties require them from time to time to attend PEC meetings and whose attendance is entirely at the discretion of the PEC, should not be covered by the requirement to stand for election every five years. If that is insisted upon by the Government, it will have a destabilising effect upon union administration. Unions will not be able to attract people with specialist skills who will prefer to stay in commercial or industrial employment where they may not have a job for life but where they have normal exployment protection and prospects of normal career advancement. I beg to move.
Baroness Seear: My Lords, I hope that the Government will accept the amendment. It is of great importance that unions should be given impartial and professional advice and that the people giving the advice are not swayed in any way by seeking or losing popularity with the members of the union. That could well be the case if they were to stand for election. Their independence and the high quality of their advice is in the best interests of all of us.
The Earl of Dundee: My Lords, I am grateful to the noble Baronesses, Lady Turner and Lady Seear. I recognise that some of your Lordships wish us to relax the election requirement, if not remove it altogether. I shall not weary your Lordships by repeating why we believe the election requirement is important. However, that belief means that we have to look very carefully at any relaxation suggested to us.
I understand the concern about the position of union officials who simply give advice to the executive. The Government have made it plain from the start that such individuals will not need to be elected. I believe that that was clear on the face of the Bill in the exemption in subsection (6A)(b), although some of your Lordships felt otherwise. Accordingly, my noble friend Lord Trefgarne agreed to look at the subsection once more. We have now come forward with a government amendment. That is easier to understand and yet maintains the original distinction between an individual who offers only supporting advice and does not therefore need to be elected and one whose contribution goes further than that and who participates in the decision-taking itself.
We believe that that amendment will bring clarity where the unions have previously claimed that there was uncertainty as to our intentions. There is therefore no need for the Opposition amendment. In fact, that amendment could be counter-productive. As drafted, it would seem to operate as an exemption
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to the existing exemption and thus would restrict its scope. The end result would be more people being elected rather than fewer.
I feel that the Government have been flexible in the way that they are now introducing the extended election requirement. They have even been criticised for having so many exemptions and transitional provisions. Nonetheless, I can confirm that the Government looked very carefully at whether there was a need to exempt officials who were subordinate to the general secretary. However, we had to conclude that it was not desirable because any such exemption would have created a potential loophole.
The government amendment to subsection (6A)(b) makes clear that those who simply give advice will not have to be elected. The majority of junior officials may well come into that category. But even if such officials once or twice stray across the boundary that will not mean that they or any other adviser have to be elected unless it is shown that their purpose in attending was for something other than that covered by the exemption. Of course, they would also have to be entitled to attend either under the rule book or by established practice before there would be any question of the election requirement applying to them, for example by virtue of subsection (6A)(b).
The Government are confident that the election requirement will not lead to union executives receiving advice which is inferior to that which they currently receive. I hope that that may be of some reassurance to the noble Baroness, Lady Seear.
Baroness Turner of Camden: My Lords, I have listened with great interest to what the Minister has said. If I have understood him aright, he is saying that Amendment No. 10 put forward by the Government and just passed by your Lordships' House would very substantially have the effect that I am seeking. I am asking that employees who attend to give advice and provide specialist information to the principal executive committee as required by that committee will not be required to stand for election. I shall look in Hansard at what he has said, but if that is the situation I am willing to withdraw my amendment.
Amendment, by leave, withdrawn.
6 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 12:
Page 15, line 16, at end insert—
("save that this provision shall not apply to the appointment of a general secretary by competitive interview following public advertisement by a trade union which fulfils the following conditions—

(i) the rules of the trade union provide for the appointment (of the general secretary) by the union's principal executive committee;

(ii) the trade union has, on at least the last 2 occasions when appointing a general secretary prior to this subsection coming into force, filled the position by competitive interview following public advertisement; and

(iii) the members of the trade union have within a period of five years, beginning with the coming into force of this section, approved by a simple majority of those voting in a secret ballot, a resolution approving the practice of appointment of the general secretary by the principal executive committee by way of competitive interview following public advertisement. Such a ballot shall be conducted in accordance with the requirements of paragraphs (a) to (f) below.

(a) entitlement to vote in the ballot must be accorded equally to all members of the trade union;

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(b) the method of voting must be by the marking of a voting paper by the person voting;

(c) every person who is entitled to vote in the ballot must—

(i) be allowed to vote without interference from, or constraint imposed by, the union or any of its members. officials or employees; and

(ii) so far as is reasonably practicable, be enabled to do so without incurring any direct cost to himself;

(d) so far as is reasonably practicable every person who is entitled to vote in the ballot must—

(i) have a voting paper sent to him by post at his home address or any other address which he has requested the trade union in writing to treat as his postal address; and

(ii) be given a convenient opportunity to vote by post;

(e) the ballot must be conducted so as to secure that—

(i) so far as is reasonably practicable, those voting do so in secret; and

(ii) the votes given in the ballot are fairly and accurately counted (any inaccuracy in counting being disregarded for the purposes of this paragraph if it is accidental and on a scale which could not affect the result of the ballot).

(f) in paragraphs (a) to (e) above—

"post" means a postal service which—

(i) is provided by the Post Office or under licence granted under section 68 of the British Telecommunications Act 1981; or

(ii) does not infringe the exclusive privilege conferred on the Post Office by section 66(1) of that Act only by virtue of an order made under section 69 of that Act.").

The noble Lord said: My Lords, in moving Amendment No. 12, I speak also to Amendment No. 13 in the name of the noble Lord, Lord Rochester. That amendment is not dissimilar, but I shall leave it to him to explain it.
At Committee stage I put forward Amendment No. 78, which was somewhat similar but much briefer and perhaps too all-encompassing. I withdrew it at that stage in order to read what my noble friend had said. By pure chance so far as I am concerned, because I had not met them before, the Society of Telecom Executives wrote to me. They are the professionals who represent managerial professional staff in British Telecom plc. They saw what I was seeking to do on the basis of my experience with several unions. I believe that it should be possible for a general secretary who is virtually a senior civil servant to be part of what we are now calling the PEC. As I understand it, it is not always called that but let us say that that is what it should be called—the executive council. It should be possible for him to be appointed by and answerable to the executive council. In my view he ought to be able to be a consultative and deliberating member.
My noble friend Lord Trefgarne very kindly wrote me a long letter on this subject, for which I am indeed grateful. I shall not quote a lot of it but perhaps I may quote one part of it, and I hope that he will forgive me if I do. He says that the wording which has been changed by Amendment No. 10 should allow ordinary union officials whom in my letter to him I called the sensible backbone of the movement to see,
"that it is not [the Government's] intention that they be elected, provided they confine themselves to offering supporting advice rather than participating in the decision-taking itself".
It seems to me that that is walking back on an excellent administrative function which was started by Samuel Pepys in the seventeenth century. The Board of Admiralty, which he invented and in which he was very much a decision-maker, has continued to
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this day. All four Ministry of Defence organisations are based on that Board of Admiralty. The War Office copied it in the early part of this century and the Air Ministry copied it when it was established in the 1920s. When it gave itself excessive powers in recent years the Ministry of Defence adopted the same basic organisation. I am sure that my noble friend agrees that it would be a nonsense to suggest that the permanent secretary at the Ministry of Defence has no decision-making function. Not only has he a decision-making function but everyone welcomes the fact.
The Society of Telecom Executives say in their letter that the
"General Secretary is appointed by, and is answerable to, the Executive Council. The position is, and always has been, non-voting, and the post-holder acts as a professional adviser to the Council".
To that extent I expect he is less powerful than the permanent secretary. The letter continues:
"In this sense the position of the General Secretary within the STE"—
and they do not want to change his title just because of this Bill—
"is similar to that of a senior civil servant where the primary role is that of providing professional advice but where the post-holder is not responsible for making policy decisions but only for implementing them. The responsibility for determining policy between Annual Conferences lies instead with the voting members of the Executive Council … The implicit assumption that the General Secretary's professional advice is always followed is not only inaccurate but also underestimates the Council's collective responsibility to Annual Conference".
I am sure that what I have read out applies to a whole host of other trade unions. After all, there are something like 150 of them, a great number with that kind of administrative structure.
My amendment, as one exception, is a very tight little rule. It provides that:
"the rules of the trade union provide for the appointment (of the general secretary) by the union's principal executive committee".
It goes on to say:
"the trade union has, on at least the last 2 occasions when appointing a general secretary prior to this subsection coming into force, filled the position by competitive interview".
It means that unions would not be able to use this amendment to get round the rules when the Bill became law because the provision is retrospective.
The amendment goes on to say,
"the members of the trade union have within a period of live years … approved"
this system of appointing the general secretary. It goes on to describe in detail the ballot process which is taken from another statute. It is spelt out in detail here to show that it is extremely watertight.
In writing to me my noble friend said that he thought that the most important thing that was wrong with this amendment and my earlier one was that members would not have a direct say in who leads the union. It is quite clear from what I have read out that the general secretary is not seen by that union as being its leader but as its principal adviser. Therefore, it is rather excessive to say that all general secretaries lead their union. That is what the Bill says. It attacks the position of all general secretaries and not only those at which it is particularly aimed.
The Society of Telecom Executives do not want the whole union to appoint the general secretary. As with

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most people who want to provide an executive of this kind, they want to advertise and to allow people an opportunity to put themselves forward. Then a small body of people to wit, the executive committee—will make the selection. That is the normal way of doing such things.
My amendment is very tight indeed and cannot be got round, in the sense that it does not have loopholes. It is not possible for people to change the structure of their organisations to take advantage of the amendment because it has that retrospective element in it.
My noble friend, having heard what I have had to say—I tried to put him in the picture about my intentions but he could not know the entire content of my speech because one always thinks of different things to say as one comes to the starting gate—I should have thought that he might now have another thought about the matter. I hope that he will see this amendment as a way of allowing quite a large number of unions to continue their present practice of having their own Samuel Pepys to help them run their unions properly.
I return to a point that I have already made. Elected people are not always the best administrators. I am sorry if those words offend members of the Cabinet who are not Members of your Lordships' House. But the fact is that one needs to have many people who are not elected and who will carry out administrative functions efficiently, reliably, and indeed, if ones likes, in a trustworthy fashion. Elected people are not always as trustworthy as those who are appointed. I shall not plug the matter too far since many noble Lords opposite have been elected in their time, as have several of my noble friends whom I see all around me. However, I must not overdo the matter. Nonetheless, the fact is that it would be disadvantageous to the proper running of unions if they were not given the opportunity to have their own Samuel Pepys. I beg to move.
Lord Rochester: My Lords, as the noble Lord, Lord Mottistone, indicated, Amendment No. 13 is grouped with Amendment No. 12. It may therefore be for the convenience of the House if I speak to my amendment now.
I sympathise very much with the remarks made by the noble Lord, Lord Mottistone, whose amendment seeks in many respects to achieve the same purpose as my own. In Committee I was very impressed with the arguments of those with long experience as trade union leaders who spoke in favour of excluding union general secretaries or people holding equivalent positions from the provisions of Clause 12(1) on the grounds that such officers were what might be called the civil servants of the movement. It was said that if they were to be made subject to election and reelection at periodic intervals, they would constantly be looking over their shoulders to see whether they were pleasing or displeasing their members. The effect would be to discourage able, professional people from applying for such posts and one would be left with a less efficient and less effective trade union movement.
I have to recognise that those arguments did not find favour with the majority of the Committee.
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Accordingly, my Amendment No. 13 is much more modest than the one discussed in Committee. Moreover it acknowledges the validity of the principle underlying subsection (1); namely, that even in the case of administrative officers such as general secretaries or their equivalent there should be a democratic element in their appointment.
In the debate initiated by the noble Lord, Lord Boyd-Carpenter, last April on the Green Paper Trade Unions and Their Members, I suggested that the chief officers of unions might be required to submit themselves at regular intervals for reappointment, not necessarily directly but through the votes of members of principal executive committees who themselves had been properly elected by secret postal ballot. In speaking to my amendment I return to that theme. I am endeavouring to establish a consensus view recognising the need for general secretaries or their equivalent to be appointed, albeit indirectly, by democratic means but also taking account of understandable fears expressed in Committee by Members who spoke convincingly from their own long, first-hand experience as union general secretaries.
At this point I should acknowledge that as it stands my amendment is imperfectly worded, if only because, with the insertion into the Bill of the new Clause 13, it should refer to Sections 12 to 15 and not Sections 12 to 14 of the Act. It may contain other technical flaws or, to be truly effective, may require consequential amendments. But those matters could easily be put right at Third Reading. My present purpose is not to initiate action, because the noble Lord, Lord Mottistone, has done that. I join with the noble Lord in a process aimed at ensuring that before the Bill leaves this House, by some such means as that proposed in the amendment we can at least in principle reach an acceptable accommodation in a difficult area. It might be done by combining with some of the points made by the noble Lord, Lord Mottistone, elements of the kind that I have sought to suggest, always provided that the underlying principle is acceptable to the Government and to the House. I very much hope that it will be.
6.15 p.m.
Lord Carr of Hadley: My Lords, I hope that the Government, even if unable to accept either of these amendments in their exact form, will agree to do something along the lines suggested by them. The country has an interest in trade unions being effectively and efficiently managed. Looking at the position of a company, the members of the company who are the shareholders elect the directors and the directors appoint managers, advisers and employees. If an employee is also a director, he, too, must be subject to election. The management of any large organisation would be in a chaotic state if those employees who were non-directors could appeal to shareholders above the heads of management, chief executives and so on. Any chance of directing and managing such a company effectively and efficiently would be severely undermined. I am sure that exactly the same principle applies to unions.
In the national interest the Government must find some way of accepting and implementing the principle embodied in these two amendments even if,

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for reasons which I can well understand, they may not be able to accept either of them in their present form.
Lord McCarthy: My Lords, it is quite clear that we shall agree to the amendment moved by the noble Lord, Lord Mottistone. Indeed, these Benches would be equally pleased with the amendment to be moved by the noble Lord, Lord Rochester. Looking at this matter from the Government's point of view, the amendment of the noble Lord, Lord Mottistone, appears to be more copper-bottomed and provided with the necessary clauses to prevent manipulation and so on. I refer in particular to paragraph (ii) which states that:
"the trade union has, on at least the last two occasions when appointing a general secretary filled…the position by competitive interview following public advertisement".
That is a protection against unions or union leaders being able to persuade their executives or conferences to change the rules so that they can get round the provisions of the Bill. We would support with enthusiasm anything that the Government can do to avoid the possibility of unions getting round the provisions of this part of the Bill if the Government can see their way to putting such provision in the Bill.
The amendments of the noble Lords, Lord Rochester, and Lord Mottistone, are trying to return us to a situation where we do not regard all trade unions as though they were the same because they are not. Some unions operate with general secretaries and presidents who are powerful men elected by mass vote. They are what Professor Turner once called popular, or sometimes unpopular, Bossdoms. But that is what they are, and they draw their majority from their mass vote. Other small trade unions, and in particular professional trade unions do not operate in that way. These unions have lay executives. They appoint the person they feel is the best professional—the person who knows about negotiations and who can look after their interests. They regard him as the servant of the organisation.
In my experience, those who take on this kind of post, who usually come from outside the union and who are sought by public advertisement, have far less power in their organisation than the popular Bossdoms. They have far less power because they cannot appeal to the majority principle and say, "The majority of the members of this union elected me and therefore, because the whole membership elected me, I have more charismatic authority than the individual members of the executive who for the most part are elected by sections of the union".
Those considerations do not apply in a very considerable number of trade unions. Therefore, the condition that the noble Lord, Lord Mottistone, wants us to lay down in this amendment is, if anything, over fair. I want it to be fairer. I would ask him to include the last seven elections if it would convince the Government of the point. The noble Lord says that the condition must be in the rules. He says that the membership must vote for this system. It must consciously agree, by postal ballot, that it wants to continue this system. The union must operate under this system or it does not have the advantage of the amendment of the noble Lord, Lord Mottistone.
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One must ask the Government: why not? I calculate that the majority of the Civil Service unions advertise in this way. The Inland Revenue Staff Federation, the CSU, and the First Division Association do so. No one has ever said that they are undemocratic. No one has ever said that they are popular or unpopular Bossdoms. All unions that arc full of managements do this. UKAPE does it. The BAC, the National Farmers' Union and the airline pilots association. Mr. Tebbit's own union, do so. Most of the education unions do this. The AUT and NATFE do it. All the professional associations do it. The RCN, the HUA, the BTA and the BOS—all employers' associations—do it in the same way. They advertise for their chief executive. They do not go to the membership.
As the noble Lord, Lord Carr says, this is how we pick company secretaries in large companies. This is how it was done in the British trade union movement before 1984. No one thought it funny. No one thought it peculiar. No one thought it nececssary to try to drive unions into one great mass as though they were all the AEU, all the T and G, or all the mass organisations. They are not. They are very specialised concerns and they have different ways of running their organisations.
For the most part, unions appoint their general secretaries in this way when they are rather strange to trade unionism and when they do not throw up automatically the rank and file activist that the larger unions do, and when they want someone—call him Samuel Pepys if you like—who is a professional person who could administer a union and run a union and who will be their servant. The amendment seems to be perfectly reasonable and understandable. We on this side of the House support it.
Lord Murray of Epping Forest: My Lords, the noble Lord, Lord McCarthy, described an earlier amendment as minimalist. I think that description applies to this amendment as well. As he has so rightly said, unions come in a variety of shapes, sizes, and forms. The characteristics of the unions with which we are dealing here are that they are small and composed of a professional membership. They are highly democratic in their organisational activities. They are usually non-polititical in that they are not affiliated to the Labour Party.
I should like to commend to noble Lords the union with which I am associated. Indeed I am a trustee of the union. It is the National Union of Marine, Aviation and Shipping Transport Officers, which is very much in favour of the amendment so ably moved by the noble Lord, Lord Mottistone. It has a membership of about 20,000 people. It is composed of ships' masters, electronic and engineering officers and similar grades. They are highly professional people. Their biennial conference is small enough for any member who wishes to come to be invited. Any member who wishes to turn up has the right to participate in the biennial conference of the union. In relation to politics, I know that a good many of the members favour more strongly the Benches opposite than these Benches. Perhaps this union can be described as being composed of floating voters at the best.
However, the members are very anxious to maintain the democratic basis on which they appoint

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their general secretary. They are genuinely afraid that the consequences of the Government's proposals would be that they would be disruptive of the union and that they would destabilise a system that has operated for at least the past 40 or 50 years in that union and the unions now comprising NUMAST which has taken into its membership some smaller organisations. In each case the unions have the same characteristic. The general secretary was appointed as the servant of the executive by the executive which was itself elected. The members are very worried. And they have reason to be. They have been told by officials who now serve the union that the best people will not stand.
One official of the union who was general secretary of one of the composing unions had previously been an elected official of the AEU for 20 years. He lost his seat in the election and was then appointed to that other union to become its general secretary on the basis that I have described. He has made it very clear that in no way would he be willing to seek election with all the insecurity and uncertainty that is involved. The members are afraid that the imposition of an elective system on their union would lead to the formation of what I can only describe as party factions—political groupings—inside the organisation, and that this would lead to small groups seeking to advance objectives which are alien, as they see it, to the general purposes and tendencies of the membership of the organisation. The members certainly do not see it as advancing democracy within the organisation. Indeed, the general secretary, rightly or wrongly, is not even allowed to make recommendations when he addresses the biennial conference of the union, so averse are they to the idea of him exercising undue sway over the membership.
All these fears are not fears that have come out of my imagination. They are fears that have been expressed by the members of the executive of this organisation. For that reason they are very much in support of maintaining the practices which have stood them in good stead and which have enabled them to operate as an effective but very democratic organisation for many years.
6.30 p.m.
Lord Beloff: My Lords, while supporting the thrust of these amendments, I rise to express a nagging fear that the noble Lord, Lord Mottistone— to continue with our nautical metaphor—may have muddied the waters by saying that persons who had been appointed from Pepys onwards to boards in service departments and so on took an active part in policy-making. It seems to me that though this would depend on the personalities involved, when Jackie Fisher was First Sea Lord he had a considerable input into naval policy. But there has always been in our system the ultimate responsibility of the Minister concerned and his Cabinet colleagues to Parliament.
In the case of trade unions, it seems to me that a distinction would have to be drawn between the kind of general secretaries of whom the noble Lords, Lord Murray and Lord McCarthy, have been speaking and those who have hitherto exercised positions of leadership with a direct input into union policy. It seems to me that the amendment, or any form of it— I
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hope the Government will produce something which will go along these lines—will have to make it clear that the appointed general secretary was not in that position (though he could and would attend the meetings of the executive and conference and so on) but it would be as a professional, as their servant, in the phrase of the noble Lord, Lord Murray. He would not therefore be on a par, or indeed legally on a par, with the elected members of the national executive or whatever the corresponding body was which would be responsible to the public for the policies of that union. With that caveat, I strongly support the amendment of the noble Lord, Lord Mottistone.
The Earl of Dundee: My Lords, I am grateful to my noble friend Lord Mottistone for setting out his views so clearly and for letting my noble friend Lord Trefgarne and myself have a little advance warning of his amendment. I am also grateful to the noble Lord, Lord Rochester, for setting out the reasons behind his amendment.
It will be clear from comments we have already made that the Government believe it is right to require all members of union executives, presidents and general secretaries to be elected. Indeed, the Government are committed to the election of all PEC members by the manifesto at the last election.
Lord Jacques: My Lords, a general secretary who is appointed by the executive is not a member of the executive. We accept that the executive should be elected, but we are talking about people who are not members of the executive.
The Earl of Dundee: My Lords, if the noble Lord will be patient for a moment I will come to what I take to be the thrust of his remarks. As I said, we were committed to this by the manifesto at the last election. The proposal was also spelt out in the Green Paper and is popular with union members.
The Government were not able to accept the amendment put down by the noble Lord, Lord Mottistone, in Committee because exempting those who were in post before 22nd October 1987 who had not been elected to any trade union position in the preceding ten years would have detracted from the manifesto commitment quite considerably.
I accept much of what my noble friend Lord Mottistone has said today. He pointed out that many general secretaries do not seek to lead. Indeed, the noble Lords, Lord McCarthy and Lord Murray of Epping Forest, have reminded us that a great many general secretaries are seen and quite rightly see themselves as servants of the organisations. It has also been said that some general secretaries may resemble Samuel Pepys, and I am sure they do. Perhaps some general secretaries bear this resemblance more than others.
The noble Lord, Lord Rochester, warned us that the prospect of having to be elected might deter many men whose contributions may have been great. As a result of their having been so deterred, we would then regret that they had not come forward. But if it has been argued that appointed general secretaries are generally less powerful or influential than those subject to election, I cannot believe that we would wish to attempt to sustain such an argument in the

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case of Alan Sapper, Clive Jenkins, Ken Gill, Fred Smithies, Rodney Bickerstaffe, Fred Jarvis, all of whom, among many others, are appointed.
If the previous amendment at the Committee stage had been accepted, many of those considered to be among the most powerful and influential in the trade union movement would have been able to stay in office and the members whom they are there to serve would have continued to be denied a voice in the matter. The Chamber reached a clear decision then that unions should not be able to continue appointing general secretaries.
I recognise that the amendments of both noble Lords go a little way toward meeting our concerns and avoiding evasion, but members would still not have a direct say in who leads the union. The Government cannot therefore accept the amendments.
I recognise the lengths to which my noble friend has gone to ensure some involvement by union members, but although his intention is perfectly clear I see room for abuse in that such a ballot would be represented not as being about whether a general secretary should be appointed or elected but as in some way a vote of confidence in the union. That would not assist union democracy and could lead to unrepresentative leaders remaining in post for years to come. Similarly, I cannot accept the amendment of the noble Lord, Lord Rochester, because it would deny the members a direct say in who should be their general secretary. The proper election of all PEC members is some safeguard against the danger that they will appoint someone whom members do not want. It is simply not sufficient.
I am grateful to the noble Lord, Lord Rochester, for correcting as he spoke one or two ways in which the drafting of his amendment was defective. I think I am right in saying that Clauses 12 to 14 of this Bill mean sections in the 1984 Act which deal with political funds, not elections. I should like to say a brief word to allay any fears that there may be—
Lord Rochester: My Lords, with the leave of the House, I mean Clauses 12 to 15 of this Bill if it becomes an Act.
The Earl of Dundee: My Lords, I am grateful to the noble Lord for making that plain. I trust that your Lordships will not think that because of this we are pushing ahead regardless of what people say to us. My noble friend Lord Trefgarne undertook to consider the wording of new subsection (6A)(b) again. We believe that we have now found a better formulation which makes clear, as we have discussed, that individuals other than members of the PEC, general secretaries and presidents will be exempt from the election requirement if their purpose in attending executive meetings is to provide factual information or technical or professional advice with respect to matters taken into account by the committee in carrying out its functions.
This wording should remove the uncertainty that existed because of the term "incidental". Ordinary union officials—"the sensible backbone of the movement", as described by my noble friend Lord Mottistone—will see that it is not our intention that
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they be elected provided that they confine themselves to offering supporting advice rather than participating in the decision-taking.
I believe that that also meets a concern raised by other noble Lords at the last stage, notably by my noble friend Lord Peyton and the noble Baroness, Lady Seear. It was that union executives should continue to have access to the best available advice. I agree that that is important and it has never been our intention to hinder the giving of such advice. Indeed, that is the very reason that we included the exemption at the tail end of subsection (6A)(b).
I hope that in view of that explanation my noble friend Lord Mottistone and the noble Lord, Lord Rochester, will see fit to withdraw their amendments.
Lord McCarthy: My Lords, before the noble Earl sits down I should like to be clear about one matter because he may have said something which will be most helpful. I understand him to have said that the sensible backbone of trade union officials can be in the executive without necessarily being elected. One might say that they are the sensible backbone of bureaucracy. Is he suggesting that it will be possible for one of the members of the sensible backbone—the head of bureaucracy—to be the general secretary?
The Earl of Dundee: My Lords, I am interested in the noble Lord's ingenious suggestion. I cannot now give a direct answer because I must take the matter away and think about it. I should find the suggestion difficult if the basis of what he has said was as follows. If someone has a function which is A, could A become B; and would the objections which have already been put forward as regards B be disapplied? I must say that as soon as A changes to B he becomes B in the full sense and that if we applied any objections to B they would still obtain.
Lord McCarthy: My Lords, what the noble Earl has to say is important so I should like to phrase the question in another way. Noble Lords on this side of the House have said that it could be made clear that the head of the cabinet, the chief bureaucrat, would not be a member of the executive. It could be made quite clear that he was not a member of the executive, but could he be called the "general secretary"?
The Earl of Dundee: My Lords, that would depend on the definition of his duties.
Lord Mottistone: My Lords, I should like to take up the point made by the noble Lord, Lord McCarthy, that there should be other amendments to subsection (6C)(b) where the phrase "general secretary" is spelt out; that must also be amended. However, I believe that in all but name my noble friend has agreed that one can have a senior advisory official. This matter is coupled with Amendment No. 10.
I probably muddied the water by introducing Samuel Pepys, although I still believe that in principle it is a matter not to be overlooked. However, if one goes into the detail of the organisation of defence forces there is obviously a difference, because the board of the Admiralty is not elected. However, I believe that it is possible to have a chief adviser, although he must not be called "general secretary".

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He might be called "secretary" or he might even be called "secretary general" as in NATO. There is nothing in the Bill which says that Clause 12 applies to the secretary general.
I really mean this. It is becoming accepted that organisations have non-elected, non-voting people who, in the words of the Society of Telecom Executives, provide professional advice but are not responsible for making policy decisions. It appears that the only mistake that that society has made is in calling their man "general secretary". I hope that that will be good enough.
On the other hand I can understand what my noble friend is worried about. There are one or two general secretaries whose names were read out by my noble friend Lord Dundee and whom the government do not wish to have recreated at any price. They may cease to call themselves "general secretaries" and then where would one be? Therefore it may be necessary to have an amendment along the lines of that which I have tabled and which catches them. They probably fit into my amendment. The Government must be very clever because otherwise there will be many secretaries general who will be laughing at them.
There is only one more stage in respect of the Bill before it returns to another place. I believe that there is room for another amendment along these lines. I shall give consideration to the matter but I hope that the Government will do so too in order that at Third Reading there will be a rewording of the clause taking into account the wise contribution of the noble Lord, Lord Murray. He spelt out the real situation better than any of us. That is the point of all of what will appear in Hansard on the subject and which requires reading.
I honestly believe that theGovernment must return with an amendment. I understand that at this stage they cannot commit themselves because many new issues have been developed within this argument. I shall look at the matter and table an amendment, but the difficulty with Third Reading is that there is no room to amend yet again. It can be done but it is much more difficult. If it is possible for the Minister to say that he will take such a course against all the rules, that will be simply super and I shall sit down at once.
The Earl of Dundee: My Lords, with the leave of the House there are limits to the scope for manoeuvring with titles allowed by Clause 12. Subsection (6B)(b) refers to the general secretary or to the position in the union which is the nearest equivalent to that of general secretary.
My noble friend Lord Trefgarne and I will look again at what my noble friend has said in order to see whether we can respond in a constructive manner. However, I must qualify that by saying that we shall be looking at the matter without commitment.
Lord Mottistone: My Lords, I understand the latter point and thank my noble friends. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 13 not moved.]
Lord Trefgarne Lord Trefgarne moved Amendment No. 14:
Page 15, line 21, at end insert—
("(1A) Without prejudice to section 7(4)to (8) of the 1984 Act (Part I not to apply to a trade union for a year after its formation), where—

(a) by virtue of any election (including one held before the coming into force of this subsection) a person is a member of a trade union's principal executive committee at a time after the coming into force of this subsection when that trade union amalgamates with, or transfers its engagements to, another union under the Trade Union (Amalgamations, etc.) Act 1964;

(b) under the instrument of amalgamation or transfer, that person becomes a member of the principal executive committee of the trade union formed by the amalgamation or, as the case may be, of the union to which the engagements are transferred (whether by taking up the same position as he held in the amalgamating or transferring union or by taking up any other position); and

(c) under Part I of the 1984 Act or the following provisions of this section that person would have been entitled, at the time of the amalgamation or transfer, to continue for any period, without being re-elected, to be a member of the principal executive committee mentioned in paragraph (a) above or, as the case may be, to hold the position by virtue of which he was such a member,

Part I of that Act shall not apply in relation to that person to the union formed by the amalgamation or, as the case may be, to the union to which the engagements are transferred until the end of the period mentioned in paragraph (c) above.")
The noble Lord said: My Lords, in moving this amendment I should also like to speak to Amendments Nos. 15, 16 and 18. Your Lordships will recall that in Committee the noble Lord, Lord Basnett, moved an amendment which was intended to permit elected members of a union's principal executive committee to hold office on the executive of a new union formed by the merger of two existing ones, for the full term of five years from the date of their election. I indicated that the Government had considerable sympathy with the proposal and undertook to consider it carefully.
This group of government amendments gives effect to that proposal. The first is the substantive one and concerns an elected PEC member whose union amalgamates with or transfers its engagements to another union under the Trade Union (Amalgamations, etc.) Act 1964 and who as a result becomes a member of the PEC of the new or the other union. It provides that the election provisions of the 1984 Act will not apply to such a member until five years from the date of his election to the PEC of his former union or, if it is later, one year from the date on which the amalgamated union was formed or the date of the transfer of engagements. The remaining amendments in the group are consequential on the substantive amendment and constitute a re-ordering of provisions already contained in the clause.
The Government's intention in making these amendments is that a PEC member who becomes a PEC member of a new union as a result of a merger should be able to hold office for as long as he would have held office if there had been no merger. He will thus be able to benefit from the transitional and retirement provisions which are available as if no merger had taken place. I trust this group of amendments will be welcomed by your Lordships as removing a possible obstacle to union mergers, and I am grateful to the noble Lord, Lord Basnett, for raising the point in Committee. I beg to move.
Baroness Turner of Camden: My Lords, I am grateful to the Minister for his explanation of these government amendments. In Committee my noble friend Lord Basnett advanced the case on behalf of his own union and on behalf of APEX, which is currently considering a merger. He made the very strong point that if the unions were to be tied to the provisions of the 1984 Act, it would be extremely difficult for the members of the merged union to be able to make a reasonable choice when it came to election of their executive because the members of the merged union would not know the members of the other union with which they had merged.
Quite clearly, it is in all our interests that there should be mergers of unions wherever possible. Your Lordships will be aware that a number of unions are currently considering mergers and I believe that it is in everyone's interests that those mergers should be handled as effectively as possible and that unions should be encouraged to merge in order that we should reduce the number of unions. Indeed, for a long time now it has been the policy of the TUC general council to encourage unions of similar kind, with similar membership and similar industrial interests to merge because it is felt that that is one way in which some of the inter-union difficulties, to which Members of your Lordships' House from time to time have referred, can be overcome. Everybody in the trade union movement is anxious that that should take place.
We have had very little time in which to study these amendments—although I am not blaming the noble Lord for that—because we did not receive the text until last Thursday and of course the wording is complex. There are three sections which contain quite complex and convoluted wording. We have not had the opportunity to study precisely what the wording entails and how it relates to the 1984 Act. However, from what the noble Lord said in introducing the amendment, it would seem that the Government's intention is to ensure that the members of the PEC of the new union should not immediately have to stand for election, or not within the terms laid down in the 1984 Act, which as we all know stipulates that they should do so within one year, and that they should hold office on a provisional basis for the remainder of their term of office as if the merger had not taken place.
We regard it as an extremely useful and helpful amendment. However, as I said earlier, we need an opportunity to have a look at it, because although there are mergers on the stocks, so to speak—the G & M and APEX merger is one such example—there will be other mergers with which we will be concerned and against which we would like to examine the provisions of this clause.
However, from what has been said it would appear that there is a genuine intention to meet the requirements of the proposition of my noble friend Lord Basnett, as advanced in Committee. For those reasons, on this side of the House we are inclined to accept the amendment with the provision that we should like to have an opportunity to consider it, because there may be other mergers which we need to consider where there might not be such a favourable reaction. We should like the opportunity to look at this again at Third Reading if it appears to us that it has not fully met the requirements outlined by my
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noble friend Lord Basnett and other requirements which other unions may have if they are considering a merger.
Lord McCarthy: My Lords, perhaps I may ask the Minister one question which relates to the substance of the amendment. It is with regard to the fourth line of paragraph (a), which states:
"by virtue of any election (including one held before the coming into force of this subsection) a person is a member of a trade union's principal executive committee at a time after the coming into force of this subsection".
Have the Government put that down deliberately and intentionally and is it something on which they are not prepared to move? It might have been more appropriate and realistic to have stated: "after the publication of the Bill". After all, most trade unions felt that they were free to amalgamate without involving themselves in the provisions of this Bill. The Government produce this Bill and it does not state that it starts from a certain date but simply:
"after the coming into force of this subsection".
That means to say that those one or two unions which may have amalgamated just before or just after the publication of the Bill will not be able to avail themselves of this clause. I am not asking for retrospective legislation, but would it not be fairer to time the coming into effect of this paragraph a little earlier than after the coming into force of the subsection?
Lord Trefgarne: My Lords, if your Lordships will permit me, perhaps I can speak again on this matter. Perhaps I may ask for advice on that point. I am not aware that there is anything sinister intended in the words to which the noble Lord has referred. If he has any specific cases in mind, I shall certainly have them looked at.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 15:
Page 15, line 37, leave out from ("election") to ("members") in line 38 and insert ("were").
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 16:
Page 15, line 39, leave out from ("question") to end of line 41.
On Question, amendment agreed to.
The Earl of Dundee: My Lords, your Lordships may consider that this is a convenient moment to break in order to return to the subject at eight o'clock. Therefore, I beg to move that consideration on Report be now adjourned.
Moved accordingly, and on Question, Motion agreed to.

Social Security (Contributions, Re-rating) Order 1988
6.59 p.m.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Skelmersdale)The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Skelmersdale) rose to move, That the draft order laid before the House on 9th February be approved [16th Report from the Joint Committee].
The noble Lord said: My Lords, in moving the first Motion standing in my name on the Order Paper I hope it will be convenient if I speak also to the following two Motions.
The Government's proposals for national insurance contributions in the coming financial year were announced in another place by my right honourable friend the Secretary of State on 3rd November last year. A further announcement was made on 17th February about the reduced rates of contributions paid by mariners, registered dock workers and the armed forces. The lower earnings limit for Class 1 contributions, which are paid by employed people and their employers, will be £41 per week from next April. Your Lordships will be aware that the lower earnings limit is linked to the basic retirement pension rate rounded down to the nearest pound. The upper earnings limit, which is also derived from the basic retirement pension, will be £305 per week from next April, nearly seven and a half times the basic pension level of £41·15 per week. The regulations which bring these changes to the earnings limits into effect have already been made. Although they are not being debated today the actuary's report, which we will discuss later, relates in part to their effect on the National Insurance Fund.
First, I turn to the main re-rating proposals which are contained in the first of the three orders. Your Lordships will recall that in 1985, in order to help lower paid workers and to reduce employment costs, we cut the Class 1 contribution rates paid by lower paid workers and their employers. The reduced contribution rates cushioned significantly the impact of national insurance contributions on those on lower earnings but did not affect benefit entitlement in any way. We now propose to increase each of the earnings limits below which the lower contribution rates are payable by £5 per week.
I am sure that this change will be welcomed. For example, the 9 per cent. bracket will now start from £105 per week and end at £154·99 per week for employers and at £305 per week for employees. Employers will pay contributions at a rate of 10·45 per cent. where a person's earnings are at or above £155 per week. There will be no change in Class 1 contribution rates: 1988–89 will be the fifth successive year they have remained unchanged. Class 1 contributions, paid by employed earners and their employers, are expected to yield £28·3 billion in 1988–89. These proposals will be of interest to very many people.
Let me turn now to self-employed people and their contributions. The number of people who are self-employed has been growing (a growth which the Government welcome) and I want to say something about their contributions. Your Lordships will be aware that self-employed people pay their national insurance contributions in two parts—the fiat rate Class 2 contribution and the profits related Class 4 contribution. We do not propose any change to the Class 4 rate, which will remain at 6·3 per cent. in 1988–89—also unchanged for the fifth successive year. The profits limits for Class 4 contributions (the range of profits within which contributions are payable) are increased each year, broadly in line with the earnings limits for Class 1 contributions.
The order brings new profits limits into effect and also an increase in the Class 2 contribution rate. This contribution will go up by 20p to £4·05 per week in the coming tax year. The small earnings exception level of earnings, which is linked to the Class 1 lower earnings limit, will also rise, to £2,250. The self-employed are expected to contribute about £812 million in Class 2 and Class 4 contributions in 1988–89.
Your Lordships will be aware of a fourth category—voluntary contributions which enable people with breaks in their contributions record, or who do not earn enough, to protect their entitlement to long-term benefits such as retirement pension. The proposed voluntary Class 3 rate will be £3·95 per week in 1988–89; an increase of 20p which will maintain the present difference between the Class 2 and the Class 3 rates. The yield from Class 3 contributions is expected to be £25 million in 1988–89.
National insurance contributions pay for only a part of the total cost of social security. In 1988–89 the Government plan to spend over £46 billion on benefits; £25·7 billion will be spent on contributory benefits which are paid for by the National Insurance Fund which is largely financed by national insurance contributions. Taxpayers also have to pay for the whole of the cost of the non-contributory benefits on which the Government plan to spend £20·4 billion in the next financial year. This leads to our proposals which are contained in the draft Social Security (Treasury Supplement to and Allocation of Contributions) (Re-rating) Order 1988.
The National Insurance Fund receives the bulk of its income from contributions, but it also receives part of its income from general taxation—the Treasury supplement. The Government propose to cut the supplement from 7 per cent. to 5 per cent. of gross contributions in 1988–89.
At present the National Insurance Fund income from contributions is buoyant and there is less need for a subvention from the taxpayer to help balance the fund's books. In view of the substantial expenditure on non-contributory benefits which is wholly met by taxpayers, we believe that they should be relieved of some of the cost of contributory benefits and the Treasury supplement to the fund will therefore be reduced.
This draft order also increases the amount of Class 1 contributions which are allocated to meeting the costs of the National Health Service. We believe that, because of the great increases in the expenditure on the National Health Service over recent years, those in work, and their employers, should pay slightly more from contributions towards the costs of the NHS. Therefore, in the next financial year gross expenditure on the NHS in Great Britain is planned to be £22 billion. Our proposals mean that in that year £3.3 billion of this expenditure will be raised by the NHS contribution; that is, 15 per cent. of total planned expenditure on the NHS. We propose to increase from April 1988 the employees' NHS allocation to 0.95 per cent. and the employers' allocation to 0.80 per cent. of the earnings in respect of which Class 1 contributions are paid.
I now turn to the Employment Protection Allocation (EPA); a small supplement to Class 1

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contributions which is paid into the Redundancy Fund. The Redundancy Fund now has enough resources to meet foreseeable demands without the annual income provided by the EPA. The Government have therefore decided to reduce the EPA to zero, and the draft order brings this proposal into effect.
Next, I refer to the Social Security (Contributions) Amendment (No. 2) Regulations, which have also been laid in draft. Your Lordships will be aware that about 70 per cent. of mariners are excluded from the Redundancy Payments Scheme, by the terms of the Redundancy Payments (Merchant Seamen Exclusion) Order 1973. In recognition of their exclusion, these mariners and their employers did not have to pay the Employment Protection Allocation, so their contribution rates were reduced by 0.25 per cent. for employees and 0.15 per cent. for employers. I am sure that your Lordships will agree that it would be absurd to abate mariners' contributions in respect of the EPA after it had been reduced to zero. The Government have therefore decided to abolish this rebate in the coming year.
I remind those noble Lords who are concerned about the future of the British shipping industry that, like other UK-based industries, it has benefited from the Government's previous actions on national insurance contributions; in particular, the abolition of the national insurance surcharge on employers' contributions and the cut in rates of contributions paid by lower paid employees and their employers in 1985. Noble Lords will recall that the contributions of employers of foreign-going mariners are reduced by 0.5 per cent. to compensate them for the costs of providing health care facilities on board ship. We do not propose to change this rebate in 1988–89.
A report by the Government Actuary on the effect of our proposals on the National Insurance Fund has been laid with the re-rating orders. It would be inappropriate to refer to that now, but the three orders to which I have been speaking and their accompanying regulations will affect all employed people in this country and their employers. They provide the resources for contributory benefits. We believe that they strike a fair balance between the contributors and benefit recipients and I invite your Lordships to endorse these Motions. I beg to move.
Moved, That the draft order laid before the House on 9th February be approved [16th report from the Joint Committee].—(Lord Skelmersdale.)
Baroness Jeger: My Lords, the orders and regulations now before us follow on the new changes in social security and I do not propose to go into them in detail or at length because we oppose many of the principles of these changes. These regulations only underline the fact that they are based on principles which are unacceptable in fairness to many of our people.
I take first the Social Security (Contributions, Re-rating) Order. I read the 16th report from the Statutory Instruments Committee and I must ask the noble Lord why it is considered a good idea to increase national insurance contributions more than is needed to keep the fund in good order? As the noble Lord has said, the Treasury supplement to the National Insurance Fund is to be cut in 1988/9 to 5 per cent. of those contributions. The report by the
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Government Actuary states that the income of the National Insurance Fund under these changes will be £28·54 billion. He states also that expenditure will be £26·77 billion. I make that a surplus of £1.77 billion. What are the Government doing with that sum, which is about double what the actuary says is prudent?
We hear so many various figures about the "more or less" cost of social security benefits under the new regulations. The Government have said that £1,300 million is being added to social security benefits. However, even that leaves a profit for the Government. I make that a surplus of £1·77 billion.
If we are putting up national insurance contributions and not increasing benefits commensurate with those increases, then we are not being fair to the people who are making those contributions. If the Government insist upon putting up national insurance contributions, why could not this extra money be used to increase benefits, be spent on the National Health Service or perhaps be used to set aside the £10 examination charges for teeth and spectacles or the prescription charges. It seems to us that the Government are using national insurance contributions to subsidise income tax reductions. This only underlines the fact that the Government will not come to terms with the relationship between income tax and national insurance contributions. Working people feel that their national insurance contribution is a tax. The sooner the Government recognise that fact, the better.
I wonder whether the Minister can tell me tonight if it is true, as I have read, that a 2 per cent. cut in the basic rate of tax is worth about 4p a week for a family on family credit? I cannot help but press him on this fact. Would not a reduction in national insurance contributions be of more help to the poorest families? I am told that a worker receiving very low wages of about £40 a week would pay 10 per cent. of that on national insurance, whereas somebody earning £16,000 is only paying 2·64 per cent. in national insurance contributions. Therefore one is forced to the conclusion that the Government are using increased national insurance contributions to subsidise tax cuts at the top of the scale. We believe that that is totally wrong.
With regard to the Treasury supplement, we do not understand the sense of that at all, because it does not help those who the Government Ministers keep saying are the poorest and in most need of help.
With regard to the fourth item, the State Scheme Premiums (Actuarial Tables) Amendment Regulations 1988, I understand, in my almost total ignorance, that the provision for the buy-back of a personal pension should apply to widowers as well as to widows. I hope that that is correct. With my sense of egality, that is one point I would welcome.
Lord Skelmersdale: If the noble Baroness will allow me, I specifically did not speak to that order, but I am perfectly happy to reply to it if the House so wishes.
Baroness Jeger: I only mentioned it because it seems to be on the Order Paper. I thought I ought not to let it be thought that I had not read everything that was on the Order Paper.

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This is not the occasion for us to go into any greater detail. The main point that I should like to make tonight is that we feel that there is a gross social injustice in increasing national insurance contributions and not using the increase for the benefit of those people who are most in need. Those people who the Government say, in their current in-phrase at the moment, "should be targeted upon" are not being targeted upon so far their national insurance contributions are concerned. Until we have a comprehensive understanding of the connection between national insurance contributions and income tax, we shall never get that right. I do not think we are going to get it right tonight.
7.15 p.m.
Lord Banks: I am assuming that we shall come on to the State Scheme Premiums (Actuarial Tables) Amendment Regulations subsequently, so I will not say anything at all about them at the moment.
I should like to thank the noble Lord, Lord Skelmersdale, for his explanation of these orders. I have to say at the outset that I was astonished to see an advertisement in the Guardian on 29th February issued by the Department of Health and Social Security, which stated,
"Every tax year national insurance contributions are changed in line with increased social security benefits. These are the rates which come into effect on 6th April I988.".
There then followed the rates which are before the House this evening. There was no mention of the fact that the approval of both Houses of Parliament was necessary. Similar advertisements appeared in other newspapers. I took that as an indication that our discussions on these orders are regarded as a mere formality, and I protest against that. In addition, it is quite absurd for us to be discussing these orders today when they are due to take effect next week. What chaos the Department of Health and Social Security would be thrown into if we rejected these orders today, as we are perfectly entitled to do. In my view, Parliament ought not be treated in this way.
As the noble Lord has explained, the orders raise the limits of the various bands of national insurance contributions to allow for inflation. The noble Lord pointed out that there is no increase in the Class 1 rates themselves and indeed mentioned that there had been five consecutive years without any increase in those rates. Of course earnings have increased and therefore one would expect the same percentage to produce a higher revenue in successive years. We should remember that in the early years of the present Government there was a very considerable increase in Class 1 contributions. They rose from 6·5 per cent. to 9 per cent. This increase was eventually mitigated for those at the very bottom of the scale by the reductions to which the noble Lord, Lord Skelmersdale referred.
The Government Actuary's report indicates that the National Insurance Fund is in a healthy position. The estimated balance for 1988–9 will represent 33 per cent. of annual expenditure, an increase from 24 per cent. in two years. Lower unemployment has meant less expense and more contributors, which is one of the significant reasons for this increase in the balance.
It seems to me that two questions arise. First, is the right balance being struck between the national
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insurance contributions and the Treasury? The Treasury supplement has been reduced from 18 per cent. of contributions to 7 per cent. of contributions during the lifetime of the present Government. Now, as a result of one of the orders before the House, it is to be reduced to 5 per cent. for 1988–9. Therefore, in spite of increased numbers of contributors, which would tend to increase the Treasury supplement, since it is a percentage of contributions, it is estimated that the Treasury supplement will fall from £2,135 million to £1,589 million.
The argument has always been advanced in favour of the policy of gradually reducing the Treasury supplement, although some of the reductions have not been very gradual, that expenditure on non-contributory benefits has increased and it is right that the Treasury payment should go to that rather than to the National Insurance Fund. If they are non-contributory benefits, they should remain so. It is not right to expect contributors to the National Insurance Fund to pay towards non-contributory benefits. That may not be what they are doing technically, but it is the effect of the policy pursued by the Government and continued in these orders.
We have to bear in mind the nature of employee national insurance contributions as compared with income tax. They commence much lower, at £2,132 per annum, and that £2,132 once reached is not excluded. For income tax the first £2,605 is excluded altogether for a single person, and £4,095 is excluded altogether for a married man. Some reduction in employer contributions will be welcome to reduce the cost of employing people and thus help to reduce the still very high unemployment figure.
The first question is whether we are getting the balance right between the Treasury and contributors. The second question is whether the balance between contributors themselves is fair. The noble Baroness, Lady Jeger, has drawn attention to the fact that once earnings pass £305 per week—£15,860 per annum—the percentage of earnings paid in national insurance contributions by the employee actually declines. It was thought that the Chancellor of the Exchequer might announce in the Budget the abolition of the top limits on national insurance contributions at £15,860 per year so that those above that figure would pay 9 per cent. on all their earnings, as do those below that figure. That would have modified the effect of the drastic cut in top income tax rates.
Taking tax and national insurance contributions together, it means that the highest rate would have been 49 per cent. instead of 40 per cent. That would still be modest when compared with the 60p or over in the pound which, even after the new regime is introduced next week, will be lost by over 800,000 households through the incidence of income tax and the withdrawal of benefits.
I regret that the Chancellor did not follow the course of abolishing the upper limit. He has left us with a combined tax and national insurance contributions rate that rises to 34 per cent., drops to 25 per cent. between £15,860 and £21,905 and then rises again to 40 per cent., which is absurd. I regret that the policy of transferring the burden of national insurance to contributors continues and that the incidence of national insurance contributions is still allowed to fall progressively on those earning over

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£15,860 per annum. I should like to see the merging of national insurance and income tax into one standard rate, with the appropriate joint higher rates as part of a move towards a tax credit system.
Lord Kilmarnock: My Lords, I do not have much to add to what has already been said. These occasions inevitably give rise to thoughts of how such matters might be better ordered and how a more rational and fairer system might be brought into place in this country.
I agree almost word for word with what the noble Lord, Lord Banks, said about the great opportunity that the Chancellor missed in the Budget when reducing the top rate of tax, for which I think there was quite a good case, to abolish the top earnings limit of the national insurance contribution and to bring these two taxes—and they are taxes, as the noble Baroness, Lady Jeger, said—into some more rational relationship with each other.
I think that the Chancellor might have taken a further step at the same time to start moving up the threshold for national insurance contributions to the income tax threshold so that they too should enter into a rational relationship with each other. One would then be able to get rid of the very regressive nature of national insurance contributions. As we all know, they produce the absurd situation that people pay higher marginal rates of tax and national insurance combined at the lower end of the income scale than they do at the higher end. There can be no justification in a rational and fair social security system for the continuance of these anomalies. It is a pity that the Chancellor did not take the opportunity to start moving towards a rationalisation of them.
This is not the time for a debate on social security principles, though I know that we are all interested in the subject, particularly the noble Lord, Lord Skelmersdale. However, there is one specific point that I should like to ask. The Minister said he thought that it was not appropriate for him to refer to the government actuary's statement. I hope that he will not feel it inappropriate if I do; indeed, I believe that the noble Baroness has already done so. Can the Minister tell me why there has been an increase in the administrative costs of the National Insurance Fund from £803 million to £897 million, which appears to be an increase of 11 per cent. to 12 per cent.? Is this because of the new arrangements being introduced? Has the department had to take on more staff to bring the new arrangements into operation?
7.30 p.m.
Lord Skelmersdale: My Lords, your Lordships' House is renowned for being unisex. I am therefore grateful to noble Lords for their comments on the three orders.
I believe that the noble Baroness, Lady Jeger, is owed an apology. I was editing on my feet, which in social security matters is always dangerous. Since she and the noble Lord, Lord Kilmarnock, mentioned the report of the government actuary on the effects of our proposals on the National Insurance Fund laid with the re-rating orders, I confirm that the total income received by the National Insurance Fund is estimated to be £28·54 billion in the next financial year, and the total expenditure is estimated to be
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£26·77 billion, giving an expected surplus of £1·77 billion. This amounts to some three and half weeks expenditure of the fund. To say the least, I think that it is cautious to have a small surplus in fund in any one year.
This projected surplus has to be seen in the context of the introduction of personal pensions and the easing of contracted-out rules for occupational schemes, which means added uncertainty about the number of people who will contract out of the state earnings-related pension scheme and hence the fund income from contributions.
The purposes for expenditure from the fund are: the National Health Service, to the tune of 11·3 per cent.; retirement pensions, to the tune of 66·2 per cent.; sickness and invalidity benefit, to the tune of 11·6 per cent.; and unemployment benefit, to the tune of 5·1 per cent. The take-up of unemployment benefit is falling as the employment rate increases. There are some smaller fund-financed benefits, including widows' benefit and industrial injuries benefit. The noble Baroness suggested that this was a tax. That is not so. On balance, it makes no sense to consider questions of progressivity or regressivity without taking account of the benefits to which contributions bring entitlement.
Why not eliminate the surplus by cutting the contribution rates, an idea which has an obvious attraction for the noble Baroness? As can be seen from these orders, the Government decided that they should not do this. We must adopt a strategic rather than a merely reactive approach to the surplus. We should not make judgments about the level of the surplus solely on the basis of projections for the fund's surplus for a single year. As I said in my opening speech, the Government have a good record on national insurance contributions. We eliminated the national insurance surcharge as soon as it was prudent to do so and we cut contribution rates of lower paid workers in 1985. Indeed, 1988–89 will be the fifth successive year when national insurance contribution rates have not been changed.
The noble Baroness said that there was another opportunity open to us. She asked why we do not increase the basic rate of pensions. We plan to spend nearly £19·5 billion on retirement pensions, which is 40 per cent. of all planned spending on social security. Most pensioners do not depend solely on social security benefits. More than 85 per cent. of recently retired pensioners have income from other sources besides state benefits. Lower inflation, the steady development of occupational pension schemes and the healthy state of the economy generally led to a dramatic growth of pensioners' private incomes. Indeed, pensioners' incomes have increased in real terms twice as fast as those of the population as a whole in the period between 1979 and 1985 when their average net incomes rose by 18 per cent. That is 2·7 per cent. a year compared with only 3 per cent. in the whole of the previous five years.
In those circumstances, we do not think that contributors should pay for higher state retirement pensions especially as the incomes of people in work who pay for benefits have increased less quickly than those of pensioners themselves. If the surplus were spent on higher contributory benefit rates then the level of tax-financed benefit expenditure would also

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be dragged up. This arises because poorer pensioners could benefit fully only if rates of income support and housing benefit were also raised. Non-contributory benefits are paid for by taxpayers, and £20·4 billion will be spent on these benefits in the next financial year. Raising pensions would benefit only the better-off pensioners and we do not think it right at present to increase further the rates of those benefits which are paid for wholly by the taxpayer.
I must apologise about a matter which the noble Lord, Lord Banks, has brought to my attention. If the noble Lord, speaking on behalf of the whole House, felt that the Guardian advertisement gave the appearance of prejudging a decision of Parliament, I can assure him and the House generally that this was not intended, though I clearly understand the noble Lord's view that it did. I have not seen the advertisement myself. I shall study it and make it my business to see that this does not happen again.
He also asked whether there was the right balance between Treasury payments and contributions. I hope that in my opening speech I explained the rationale for our decision and up to now continuing to cut the Treasury supplement by 2 per cent. a year. If he really believes in contributory benefits being paid for by contributions, it would be appropriate to make sure that this is done. Not for the first time the noble Lord, backed up by the noble Lord, Lord Kilmarnock, talked about the merging of national insurance and tax. That has been a long-term objective of the Liberal Party. I was interested to see that this policy has been attractive to the SLD and indeed to the noble Lord, Lord Kilmarnock, himself.
The noble Lord, Lord Kilmarnock, asked me to explain why there was an increase of administration costs within the National Insurance Fund. I did not quite hear his percentage but I am advised that it is 11.7 per cent. on the previous year. The increase is due to inflation but the increase also takes account of the National Insurance Fund's share of the cost of the department's operational strategy. As noble Lords will be aware, the social security part of the DHSS is undergoing a massive investment programme in computers. It is only fair that this fund should bear its part of the cost of that programme.
I think that I have answered all the questions. It is a very complicated subject, and if I have missed any points perhaps I may be allowed to write to noble Lords. In the meantime, I commend the order to the House.
On Question, Motion agreed to.

Social Security (Treasury Supplement to and Allocation of Contributions) (Re-rating) Order 1988
Lord Skelmersdale: My Lords, I beg to move, That the draft order laid before the House on 9th February be approved [16th Report from the Joint Committee.]
On Question, Motion agreed to.

Social Security (Contributions) Amendment (No. 2) Regulations 1988
Lord Skelmersdale: My Lords, I beg to move, That the draft order laid before the House on 16th February be approved [17th Report from the Joint Committee.]
On Question, Motion agreed to.

State Scheme Premiums (Actuarial Tables) Amendment Regulations 1988
7.37 p.m.
Lord Skelmersdale Lord Skelmersdale rose to move, That the draft regulations laid before the House on 7th March be approved [20th Report from the Joint Committee.]
The noble Lord said: My Lords, occupational pension schemes and personal pension schemes can transfer some of their liabilities back to the National Insurance Fund. This procedure is commonly known as "buying back". The 1987 state scheme premiums regulations already provide the actuarial basis for calculating the amount needed to recompense the fund when a buy-back occurs. However, under the provisions of the Social Security Act 1986—I am grateful to those noble Lords who said earlier that this was not an appropriate moment to have a Second Reading speech yet again on that subject—contracted-out pension schemes are now required to provide widowers' benefits as well as the usual benefits for members and for widows. The regulations which determine the circumstances in which a widower's rights can be bought back into the state earnings related pension scheme have now been made. Parliament can therefore approve the actuarial terms which specify the buy-back terms in respect of a widower's benefits. The detailed table follows the recommendations of the government actuary, whose report, and that of my right honourable friend the Secretary of State, have been laid with the draft regulations.
On the previous order the noble Baroness, Lady Jeger, asked a question on this subject. I would advise her that provision has been made for buying back into the state scheme from 6th April 1989 benefit for those widowers for whom the state scheme provides benefit in the circumstances where both husband and wife were over state pension age when she died. I hope that this answers the noble Baroness's point. If it does not, she will have another opportunity to get back at me. For the moment, I beg to move.
Moved, That the draft regulations laid before the House on 7th March be approved [20th Report from the Joint Committee].—(Lord Skelmersdale.)
Baroness Jeger: My Lords, I apologise if I was somewhat previous when I referred to this matter earlier. However, I confirm that this is the one point which we agree about and which we welcome.
Lord Banks: My Lords, we must again thank the noble Lord for his explanation of the regulations. I should perhaps declare an interest in the matter as I

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am an insurance broker specialising in life assurance and pensions. The new regime for pensions, part of which comes into operation next month, includes, as the noble Lord made clear, a provision for an inherited pension, an inherited widower's entitlement. That is the better part of the two provisions relating to widows and widowers. As it provides the inherited entitlement for widowers, it has to provide that schemes which are contracted out have a similar provision within them. However, I am not sure whether the Minsiter clarified the part as regards the halving of the inherited state earnings related pension entitlement for widows as regards deaths after the year 2000.
The actuarial table, as the noble Lord explained, is necessary to take account of the position of widowers when their equivalent rights in an occupational scheme or a personal pension plan have to be bought back into the state scheme. The actuarial table is non-controversial. If we were all actuaries we might have different opinions upon the matter but, as we are not, I do not imagine that we have. Those on these Benches have no complaint about the table. It would therefore be wrong to embark upon a general discussion on the new pensions regime itself. But perhaps I should emphasise the need for the widest possible publicity giving an impartial explanation of the new arrangements. Such arrangements should certainly be approached with caution as so many people in the pension field will inevitably have a slanted, if sincere, view of the particular pension arrangements most suitable for an individual. Indeed, there is a bewildering array of possible situations. I shall give the House some examples.
A person may be a member of a defined benefit occupational scheme which may be contracted-in or contracted-out; he may be a member of a money-purchase occupational scheme which also may be contracted-out or contracted-in. His pension may be boosted by additional voluntary contributions in a scheme run by his employer; or his pension may be boosted by free-standing additional voluntary contributions which he has arranged separately. He may be in the state earnings related scheme with no occupational pension. He may be in the state earnings related pension scheme with an occupational pension. He may be in the state earnings related pension scheme with a personal pension or he may be contracted out of the state earnings related pension scheme through a personal pension. Furthermore, if he is self-employed he could be in a personal pension scheme and in those circumstances not in a state earnings related pension scheme.
Naturally, all the aforementioned options are not open to everyone. But the variety is wide enough to cause considerable confusion. That is why I think it extremely important to have the widest impartial explanation as to what all the new possibilities really mean and whom they affect. As regards the regulations, we have no objection to their being approved by the House.
Lord Kilmarnock: My Lords, it has indeed been a privilege to listen to the noble Lord, Lord Banks, piloting us, as he always does, like a master mariner between the reefs, shoals and intricacies of pensions policy. I cannot possibly emulate him. However, in
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principle, the regulations cause us no difficulty. It seems to be absolutely right that widowers should be put in the same position as widows in relation to inherited pensions. Therefore, as I have already said, the regulations cause us no problems.
Lord Skelmersdale: My Lords, I am again most grateful to all noble Lords who have spoken on these not unimportant regulations. The House as a whole has been riveted by the speechof the noble Lord, Lord Banks, regarding the complexities surrounding the options open to people deciding upon a personal pension scheme. The noble Lord compared a more private scheme with one that would be available perhaps from employers and the decision to be made between the two.
I believe we discussed this subject on a previous occasion. I see the noble Lord, Lord Winstanley, nods his head; perhaps it was on a Question that he asked me some time ago. On that occasion I advised people to go first to the social security office for general advice. I stressed however that it would be made clear to the inquirer that the only person who could realistically give unbiased advice was an adviser, such as an accountant or a solicitor. I can confirm that the Government's publicity will emphasise that very point. I hope that what I have said assists the noble Lord, Lord Banks. I beg to move.
On Question, Motion agreed to.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until 8 p.m.
Moved, accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.46 to 8 p.m.]

Employment Bill
Consideration of amendments on Report resumed on Clause 12.
Lord McCarthy Lord McCarthy moved Amendment No. 17:
Page 15, line 41, at end insert—
("(3A) in section 8 of the 1984 Act (exemptions for persons nearing retirement)—

(a) in subsection (1) the word "voting" shall be omitted and

(b) there shall be added the following subsection—

"(5) Where any person holds a position which is mentioned in paragraph (a) of subsection (2) above, the provisions of section 3 (workplace ballots) shall apply in determining whether his election is one in relation to which section 2 (postal ballots) of this Act has been satisfied if, but only if, he was elected before 3rd March 1988.").
The noble Lord said: My Lords, we come in this packed and attentive House to Amendment No. 17, which we regard as the most important amendment that we are moving this evening. It attempts to modify the Government's intention that members of national executives, or PECs as they call them, without votes shall require postal ballot elections to qualify for the exemption provisions of Section 8 of the 1984 Act. The modification of that provision is modest because all that the amendment suggests is that the modification of the previous situation should apply from 3rd March 1988.
We choose 3rd March—we may be wrong with the date and we are happy to change it if it is wrong—because it was on 3rd March, as far as we know, that the Government passed their amendment, which we discussed in Committee, to change the position as regards people who did not have a vote so that they had to have a postal ballot, and not a workplace ballot, to qualify for the exemptions provided in Section 8 of the 1984 Act.
The amendment is concerned with the chaos and the irrationality which we think now exist in the various categories of trade union officials who are exempted on grounds of age from the normal requirement to face elections every five years under Section 8 of the 1984 Act. I wish to make two preliminary points before going into the record. I apologise to the House, but I have to go into the record, which is somewhat long.
The first point I make is that our amendment is not intended—I do not think that it does—to reduce the exceptions already available under the 1984 legislation. We are trying to widen the exemptions, not to reduce them.
Secondly, we ask the Government to listen to what we say with the utmost seriousness, because on the outcome of the debate and what the Government say in relation to the debate depends our attitude towards the hybridity of the Bill. The Government first agreed to grant exemptions in 1983. In Committee in the other place, in reply to Mr. John Evans who asked him whether he would exempt trade union officials just before they retired from the provisions of the Bill, Mr. Gummer said:
"When we began this debate in Committee, I said, to a certain amount of laughter from Opposition Members, that we would seek to change the law while running with the grain of the unions. For that reason, on seeing the representations made to me on this issue, I am very sympathetic to the proposals. Where a full-time official is a voting member of an executive committee, it may be sensible to provide, as the electricians and engineers do, a special derogation if he has been on the committee for some time and has more than five years between election and retirement. The case has been put, not only in Committee but elsewhere, that in this way a number of unions face the practical difficulties which arise if somebody has been on a committee for some years, has a very short time to go before retirement, has been properly elected and then faces an election which he might lose and, thereby, lose his job as well".
The Minister went on to say:
"It is not the Government's purpose to lay on any unnecessary burdens on any trade union. The whole thrust of the legislation is to make the basic case for democracy in a way that trade unions can use to the full. We would not wish to create the difficulties outlined if we can help it. Therefore, 1 hope that we will be able to bring forward an amendment later in Committee or on Report to make it possible but not compulsory, because our whole purpose is to allow unions as much freedom as possible".—[Official Report, Commons, Standing Committee, 8/12/83; col. 192.]
Mr. Gummer was as good as his word. On 1st March he moved new Clause 4, which subsequently became Section 8:
"Exemption for certain persons nearing retirement".
There were several conditions. We felt that there were three main conditions. First, if within the past five years the member of an executive had been elected in a way that satisfied the 1984 Act (Sections 2 and 3); secondly, if he were retiring in five years or less; and, thirdly, if he were a full-time employee with 10 years service or more.
As long as one qualified under those three categories, one was exempt from the operation of the Bill for the last five years of one's service. When moving the new clause Mr. Gummer said:
"Some trade unions are worried that a number of members who have been elected to the main executive committee and have served on it for some time will, on approaching retirement age, find themselves subject to an election which, if they lost it, would put them in considerable difficulty—simply because of the length of service that they had contributed to the union".
Once again Mr. Gummer said that he wanted to move with the grain of trade union thought. He ended by saying:
"We have sought throughout to meet the real objections to what we are presenting to the public. One objection was that in some cases the Bill might be hard on long-serving members of trade unions. But the Government intend to make the trade union movement stronger, more representative and more able to meet obligations to its members. We did not wish anyone to feel that we were hurting long-serving members. That is why we tabled the new clause, which has the wholehearted support"—
and indeed it did—
"of a wide range of people in the trade union movement".—[Official Report, Commons, Standing Committee, 1/3/84.]
The House will be aware that the 1984 Act applied only to those officials with a vote. Therefore, when the Government produced the Bill and as we read the Bill we waited to see what the Government would do about the Section 8 exemption clauses. We found to our surprise—we have expressed this surprise to the Government several times in Committee and elsewhere—that there was not a simple extension of the five-year exemption across the board to members of executives who did not have votes in the same way as applied to members of executives who did have votes, because for those with elections within the 1984 situation the position was the same. As long as one had a vote, one carried on in exactly the same way; at least one did until 3rd March, as was the case in 1984.
So far from honouring the spirit of what Mr. Gummer said for trade union officials in precisely the same position except that they do not have a vote and were not elected, for those who did not have an election the position was regulated by what is now Clause 12(4). Instead of those members of the executive having the five-year exemption which was granted under the 1984 Act to those who had a vote, they were given only a two-year exemption. We protested at the time. We tried to remedy the position.
We were told by the noble Lord, Lord Trefgarne, that what we proposed would exempt various people from the coverage of the Bill; for example, Mr. Sapper of the ACTT, Mr. Bickerstaffe of NUPE, and he could have added Mr. Jenkins, late of ASTMS, and Mr. Gill late of TASS, because, as we said, a refusal to accept the five-year rule for those general secretaries meant that they were covered by the Act and would have to face an election. There it rested. At that point we felt that the position was anomalous. We did not think that it was sufficiently anomalous to justify our questioning the basis of the Bill. There it rested until 14th March when the noble Lord, Lord Trefgarne, moved Amendments Nos. 130 and 133.
It is very serious from this point of view to note what he said:
"These amendments are again technical amendments which make clear the Government's original intention that the existing exemption

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for those nearing retirement under Section 8 of the Trade Union Act 1984 should be available only to those whose most recent election was by the fully postal method".—[Official Report, 14/3/88; col. 996.]
That was all he said, except for adding, "I beg to move". I want to be fair to the Minister. I still take the view that the best that we can hope for, the best we can assume, the best we can say on behalf of the noble Lord is that it was meant to be a joke. It was never meant to be disingenuous. It was never meant to suggest to ignorant or perhaps rather sleepy people late at night that there really was nothing in that amendment.
The Minister knew very well that it was not a technical amendment. He knew that it was a change of policy. He knew that it was a last minute change of policy which had not been heralded in the Green Paper and which had not been included in the first print of the Bill where it would have been included if it had been part of the essential purpose of the Bill. It was not mentioned at any time in the Commons; it was not mentioned on Second Reading and not explicitly in Committee until that last day at 9.15 p.m. As I said, the best one can assume is that it was a joke. In reply to that joke I said on this side that the Minister knew it was not a technical amendment. He then explained what the amendment meant and said he had not explained it at the time because he thought it was late at night, and so on.
What does this amendment do? Let us be quite clear. It denies the exclusion rights of Section 8 of the 1984 Act to those who have no vote and are elected by a workplace ballot within the terms of the 1984 Act. Up until that time, from the publication of the Bill in October last year they had every right to believe that they were covered by the terms of the 1984 Act. Now unless they have postal ballots they are not covered by the terms of that Act.
As a result of this amendment we now have four categories. It is important that I should spell them out briefly to the House. We have four categories of PEC members who share two kinds of exclusion rights. Our central question to the Government tonight is, what is the logic of it? What is the rationale of it? Why should we not believe, as we are reluctant to believe, that it has been done for private rather than for public reasons? There are four categories. I ask the House to think how one could rationalise those four categories.
First come the members of PECs with votes, elected under the terms of the 1984 Act either by postal ballot or by workplace ballot. It does not matter; as long as they have votes they get five years' exemption. If they have had an election within the previous five years, they can have up to 10 years without an election.
Secondly come the members without votes, only just put into the Bill, elected under the terms of the 1984 Act but Section 2, not Section 3. They were elected by postal ballots and they are in exactly the same position 8 the members who have votes who are elected by workplace ballots or postal ballots: they have five years' exemption. That is the second category.
Then we come to the third category, the members without votes who were elected under the terms of the 1984 Act but by workshop ballot and who suddenly
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found on 3rd March that they were excluded from the 1984 Act and were merely covered by the two-year exemption rule in the Bill.
The fourth category is the members without votes who have never been elected and who have been appointed perhaps by their executive or by their annual conference, and they are covered by the two-year rule. We argue that these weird and irrational specifications result in endless anomalies. I do not want to burden the House by listing all these anomalies; I shall just quote one or two, although I could give more.
One is of a general secretary without a vote who was elected by a secret workplace ballot just over a year ago and was due to retire in three years' time. He has to face re-election by postal ballot. This could well take place less than two years before his retirement because it comes into operation when that part of the Bill comes into operation.
The same person, with all the other qualifications and 10 years on the executive, would presumably be more influential. If he had a vote he would be covered by the 1984 exemption provisions, even if his last election had taken place almost five years ago and he was more than four years away from retirement. In other words, he would have nine years of protection, you might say.
The Government have been unable to explain to us—I do not think they have even tried—why officials who have votes and who by all common sense are presumably more powerful and influential are to be treated less strictly than people who have no votes. The Government cannot say, and have never tried to say, why those who have never stood for election and who are appointed by their executive are to be placed in precisely the same position as those who have been recently elected by a universal secret ballot within the terms of a Section 3 of their own 1984 Act.
I say to the Government that all the evidence suggests that these changes have been constructed without reference to the principles of the Bill; that they are there to impose elections on individuals whom the Government do not like, in particular a small number of general secretaries and presidents. I do not choose my names from the air; I choose them from the names which the Minister and his supporter have mentioned in this debate: Mr. Scargill, Mr. Sapper, Mr. Jenkins, Mr. Gill, Mr. Bickerstaffe and one name which has not been mentioned, Mr. Todd of the Transport and General Workers' Union. These are the people who will not get the five-year exemption. Had they applied the provisions of the 1984 Act across the board to people who did not have a vote in exactly the same way as they did to people who had a vote, these are the people who would have been covered by the Bill but who are outside it: Mr. Scargill, Mr. Sapper, Mr. Jenkins, Mr. Gill—or as he is sometimes referred to in this House, "Mr. Jill"—Mr Bickerstaffe and Mr. Todd.
I must end by looking at what the Minister has said in defence of his position. At this point I was going to quote from the speech that he made on 14th March when he replied to the amendment. However, I find that the statement which he made on that occasion and to which I referred in my speech in the debate has been more succinctly and clearly set out in a letter which he was good enough to write to my noble

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friend Lord Wedderburn on 25th March 1988. The Minister placed two copies of the letter in the envelope, so one was passed to me. In the light of what he says there, I feel that I must take this as his final statement of his explanation.
I believe that there are three points that the Minister mentioned on 25th March in justification of the Government's position. I wish to answer each one very briefly. First, the Minister wrote:
"The new provisions clarify the original intention with respect to the exemption provided by Section 8. They make clear that those currently within scope of Section 1 of the 1984 Act—that is, voting members of the executive—can benefit from this retirement exemption by virtue of an election which was either fully postal or held at the workplace".
I suggest to the Minister that that is not the case. I suggest that if one looks again at the quotations which I have taken from Mr. Gummer in 1984 one will see that the original intention was wider than that. The original intention of the Government was to protect, as one might describe them, aged general secretaries who were within five years of retirement. The natural assumption would be that if any further general secretaries were covered by the legislation they would be similarly covered by the exemptions. That is the only sensible way that any reasonable man can read what Mr. Gummer said.
Secondly, the Minister continued:
"Equally, the new provisions spell out the intention that those brought into scope of the election requirement by the Bill should qualify for the retirement exemption only on the basis of a postal ballot."
I say that that also is not so. When the Bill was published it did not state that. The Bill did not spell out the intention of those who brought it in—that it would qualify the retirement exemption only on the basis of a postal vote. For the first six months not one word was said about that. For the first six months, until the Government thought that certain trade union leaders were finding ways round the legislation, the position was quite different.
Thirdly, at the end of his letter the Minister stated:
"It will be readily apparent that Section 8(5)(b) does no more than to pick up a category already defined in existing legislation and maintain the rights its members were entitled to expect."
I say once again that the members were entitled to expect rather more than that. In fact in the first six months of the Bill they did have more than that. Therefore we are bound to go back to the remarks that the Minister has been making through the course of the passage of this Bill through the House. Those are the remarks that I listed in my last speech in Committee. The noble Lord, Lord Wyatt of Weeford, at col. 605 of the Official Report on 8th March, said:
"Mr. Scargill was trying to dodge the provisions of this Bill".
The noble Lord, Lord Trefgarne, replied that in those remarks unfortunately the noble Lord, Lord Wyatt, was failing to hit the target. Of course in the womb of time the noble Lord had a much better amendment.
At col. 998 on the 14th March, when the Minister was drawn by us into talking about who the Government had in mind when they refused to lift the
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exemptions from two years to five years, he mentioned, referring to Clause 12, the:
"age profile of those in scope".
He offered to give us the names of those who were in scope of Clause 12 and then he refused. And yet he mentioned the names of Mr. Sapper, Mr. Bickerstaffe, Mr. Scargill and others. At col. 998 it is recorded that the Minister still maintained:
"I am advised that the class concerned was not determined by reference to the ages of individuals, … most of those in scope will be relatively aged".
Even today certain remarks have been made. I have written these down and I may have got the times wrong but the Government on two occasions have referred to people who have to be kept out of the protection of the exemption clauses.
At 5.46 p.m. by my watch the noble Lord, Lord Trefgarne, said that there were loopholes in the Bill or that there had been loopholes or that there might be loopholes. He said that certain important leaders had given up their votes. They presumably did so with the aim of getting through the loopholes.
At 6.42 p.m. the noble Earl, Lord Dundee, said when we were discussing the amendment of the noble Lord, Lord Mottistone, that there were people who would slip through these amendments if we accepted the kind of proposals that the noble Lord, Lord Mottistone, was suggesting.
Again Mr. Sapper, Mr. Jenkins and Mr. Gill were mentioned. Therefore we say that the Government have said quite enough to make us believe that they have a great deal to answer for. If they do not want us to think that these amendments, these distinctions and these qualifications have been introduced into this Bill in order to penalise a small number of allegedly Left-wing general secretaries that the Government want to penalise, what they have to do is quite simple; they have to accept our amendment.
Our amendment states that after 3rd March everything they want will occur. The anomalies will remain. The position will be unsatisfactory but in this way at least nobody can say that the Government have been influenced by personal prejudice and not by public interest. That is the opportunity for the Government on this amendment—to show that they are not influenced by personal prejudice and that they are concerned with the public interest. I beg to move.
Lord Trefgarne: My Lords, I am greatly obliged to the noble Lord for introducing his amendment in the detail that he did. We are back on the ground covered by the government Amendments Nos. 130 and 133 which were considered and accepted in Committee.
I am bound to say that the amendments currently before your Lordships largely reverse the effect of what the Committee agreed two weeks ago. I am bound also to say that the Government see no reason for such a reversal and that therefore the amendments are not acceptable.
As I explained to your Lordships in Committee, the Bill as it now stands will amend the retirement exception in Section 8 of the 1984 Act 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

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satisfied Section 2 of the Act and was held not more than 10 years before retirement age; they have been a full-time employee of the union for at least 10 years; and they are entitled, apart from the statutory election requirements, to hold office until retirement.
Your Lordships will note, despite what the noble Lord, Lord McCarthy, suggested on the previous occasion when we debated this issue (Official Report, 14/3/88; col. 999), that the Government believe there should be no distinction as to the availability of this retirement exemption between those who have a vote and those who do not once the provisions in the Bill have come fully into force. The lack of any such distinction has always been evident on the face of the Bill, as is shown by paragraph 5(5)(a) of Schedule 3.
It is clear that one of the main conditions of eligibility is that the individual's previous election must have satisfied Section 2 of the 1984 Act. This section includes the requirement that the election be conducted by the fully postal method, and it has always been our intention that this should continue to be a principal condition in qualifying for the exemption.
What was not clear on the face of the Bill though was that 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 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.
The Government amendment accordingly clarified 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 to the 1984 Act and Clause 14 is in force, those currently within scope of that 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 amendments now before your Lordships would to a large extent reverse the government amendment by providing that a workplace ballot should continue to count for the purposes of the retirement exemption for individuals elected before 3rd March. The difference between us comes down to the basic issues of policy and timing; policy as to whether individuals who were not required to be elected by the 1984 Act and whose election therefore was not subject to the conditions and safeguards of the Act should be able to benefit from the retirement exemption on the basis of a workplace ballot once fully postal voting is normal; and timing, in that, for the purposes of the amendment at least, some of your Lordships seem to accept that only those elected before 3rd March should be able to benefit in that way.
The Government believe that the only ones who should be able to benefit from the exemption by
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virtue of a workplace ballot are those elected under the requirements of the 1984 Act as voting members of union executives. I must therefore resist the amendments.
The noble Lord has referred in particular to the possible hybridity of the provision. We have no doubt that the Bill is not hybrid. I referred to that matter in the letter which I wrote to the noble Lord, Lord Wedderburn, explaining why the government amendment referred to,
"a position by virtue of which the person elected would become such a voting member".
That is contained in the new subsection (5)(b) at page 41. I hope that the noble Lord now sees that the reference was essential because of the structure of the Act and of the section itself. Without the reference, individuals in such a situation would be worse off.
The noble Lord's amendment implicitly recognises that by referring back to,
"a position which is mentioned in paragraph (a) of subsection (2) above".
That paragraph contains the phrase,
"whether as a member or as the holder of another position in the union",
which is itself a reference to Section 1(2) of the Act.
I therefore hope that the noble Lord will agree that that is an essential policy consideration upon which your Lordships reached a view at the last stage of the Bill. In my judgment, the position which we then reached should be maintained.
Lord McCarthy: My Lords, the noble Lord has told us four things. He says that the agreements largely reverse what was agreed at Committee stage. They do not do that; they only do it after 3rd March. We are saying that it would not be fair to do it in a retrospective way. They can have their way after 3rd March. We are not largely reversing what the Government wish to do. We are simply trying to introduce a modest amendment to clear away the possibility that it might be done for some private interest rather than some public interest.
Secondly, the noble Lord says that because that was done for voters in 1984 the Government cannot stop it now. However, they can stop it for non-voters. That is a strange doctrine. What is explicit cannot be changed; what is implicit can be changed whenever we like. If there is an explicit right which says that the Government give you certain things, the Government cannot come along and change that explicit right. But of course they do that every day and all the time. Most legislation changes previous legislation. That argument is rubbish.
On the other hand, if people have a certain implicit freedom in the sense that the Government have left them alone and have not brought them within the purview of legislation at all, surely they have even more reason to expect that they will be left alone and that, if they are subject to legislation, they will be subject to legislation in much the same way as the people who have been subject to it already. I notice that the Minister never tries—it is the heart of a rational defence—to explain why we are less tough on people with votes than we are on people without votes, except that we do not like the people who got elected who do not have votes.

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The third point the Minister made is that the Government intended all along to penalise the workplace ballot people. They apparently intended that as far back as 1984. They were going to penalise such people but they never got round to telling us. Not only did they not tell us that in 1984, which I can understand, but they did not tell us when the Bill was published. They did not put it on the face of the Bill. Were we supposed to guess? They did not tell us at Second Reading in another place; they did not tell us at the Committee stage; they did not even tell us in this House until the amendment was published on 3rd March. The noble Lord must think that we all guessed that the amendment would be put forward and that it did not surprise any of us. I do not think that he believes that.
Fourthly, the Minister tells us that the Government would let the workplace ballot stand but that that will not do because if the workplace ballot stands the fundamental commitment by the Government to postal ballots will be gainsaid. Of course that fundamental commitment to postal ballots has just been invented and has just been put into the Bill. It was not put into the Bill from its inception in a way that ruled out workplace ballots for people with votes or without votes.
The noble Lord has not reassured us on any of the reasons we have for believing that there are grounds for saying that the Bill may be hybrid. As I understand it, the essence of the argument is that the obfuscations which we have had do not constitute the basis for treating the general secretaries and presidents in particular as a genuine class. If they are not regarded as a genuine class, that introduces what might be termed a non-genuine class and private interests have intruded into a Public Bill. That makes it a hybrid Bill. In any case, we intend to test the mood of the House by voting on the amendment.
8.36 p.m.
On Question, Whether the said amendment (No. 17) shall be agreed to?
Their Lordships divided: Contents, 31; Not-Contents, 59.

Division No. 4

CONTENTS

Blease, L.

Nicol, B. [Teller.]

Cocks of Hartcliffe, L.

Parry, L.

Dean of Beswick, L. [Teller.]

Pitt of Hampstead, L.

Dormand of Easington, L.

Prys-Davies, L.

Elwyn-Jones, L.

Rochester, L.

Graham of Edmonton, L.

St. John of Bletso, L.

Grey, E.

Seear, B.

Harris of Greenwich, L.

Stewart of Fulham, L.

Hatch of Lusby, L.

Taylor of Blackburn, L.

Hooson, L.

Turner of Camden, B.

Houghton of Sowerby, L.

Underhill, L.

Jeger, B.

Wedderburn of Charlton, L.

McCarthy, L.

White, B.

Mackie of Benshie, L.

Winchilsea and Nottingham, E.

McNair, L.

Morton of Shuna, L.

Winstanley, L.

NOT-CONTENTS

Abinger, L.

Belstead, L.

Ampthill, L.

Bessborough, E.

Arran, E.

Blatch, B.

Beaverbrook, L.

Boyd-Carpenter, L.

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Brabazon of Tara, L.

Margadale, L.

Brougham and Vaux, L.

Massereene and Ferrard, V.

Caithness, E.

Mersey, V.

Carnock, L.

Morris, L.

Carr of Hadley, L.

Mottistone, L.

Cox, B.

Mountevans, L.

Craigavon, V.

Munster, E.

Davidson, V. [Teller.]

Napier and Ettrick, L.

Dundee, E.

Nelson, E.

Ferrers, E.

Newall, L.

Fortescue, E.

Radnor, E.

Gisborough, L.

Renton, L.

Gray of Contin, L.

Renwick, L.

Greenway, L.

St. Aldwyn, E.

Harmar-Nicholls, L.

Saltoun of Abernethy, Ly.

Harvington, L.

Sanderson of Bowden, L.

Hesketh, L.

Skelmersdale, L.

Hives, L.

Strange, B.

Hood, V.

Teviot, L.

Hooper, B.

Trafford, L.

Joseph, L.

Trefgarne, L.

Kaberry of Adel, L.

Trumpington, B.

Layton, L.

Vaux of Harrowden, L.

Long, V. [Teller.]

Wyatt of Weeford, L.

Lucas of Chilworth, L.

Zouche of Haryngworth, L.

Mackay of Clashfern, L.

Resolved in the negative, and amendment disagreed to accordingly.
8.45 p.m.
Lord Wedderburn of Charlton: My Lords, I understand that it is the right of any noble Lord who is of the opinion that a Bill has become hybrid by reason of amendments to be able to move a Motion at any stage of the Bill that the Bill be referred to the Examiners. I wish to move that Motion now, on grounds that I shall set out as quickly as I can. However, this being a somewhat serious matter, I apprehend that I should do so carefully.
I should like to suggest to the noble Lord, Lord Trefgarne, that, if the Government were prepared to accept that reference, the sensible thing to do would be to postpone the moving of the Motion until the rest of the amendments have been disposed of—namely, after Amendment No. 61. As I understand it, the Bill would be referred to the Examiners to determine in the light of all the evidence and of the debates, and any further evidence that may be put to them, whether a prima facie case has been made out. I do not know whether the Minister would find my suggestion acceptable. I apprehend that his not intervening means that he would not.
The case for the reference to the Examiners, which could not be made until this point, is based upon the nature of what came to be known in Committee as Amendment No. 133, inserting a new Section 8(5) (b) into the 1984 Act. That amendment was tabled on 3rd March in the light of the debates on the matter and the position of Section 12(4). Most of the evidence has been set out by my noble friend Lord McCarthy today and in his speech in Committee. There is a prima facie situation, without adequate explanation, of treatment of certain persons who as a class may be described as non-voting general secretaries or presidents of trade unions and who, on the basis of the Government's own record, constitute a very small group.
This is a serious matter and, if I may, I will say in parenthesis that I hope we have done our duty in taking counsel from those in charge of your

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Lordships' business. We understand why no intervention was made from those channels on the face of the Bill. We make our case on the basis of the Bill as it has been debated, and indeed its context in society.
Perhaps I may refer to one or two aspects of a hybrid Bill. The locus classicus of the definition is now always taken from the well-known statement of Mr. Speaker Hylton-Foster in 1963, when he said:
"I think that a hybrid bill can be defined as a public Bill which affects a particular private interest in a manner different from the private interests of other persons or bodies of the same category or class.".
It was in commenting on that definition that your Lordships' own Examiners, in their report of 1977 on the Aircraft and Shipbuilding Industries Bill, said:
"This definition, taken at its face value, indicates what may have been thought to be obvious, that the doctrine of hybridity is an expression of the will of each House of Parliament that an individual singled out by a Public Bill for adverse treatment should be allowed to plead his cause to a Select Committee on a petition against the Bill or against those provisions of the Bill that will affect him. The doctrine was designed to give the minority some defence against the legislature.".
We say not that this is precisely analogous with the matter upon which your Lordships' Examiners were reporting in 1977 but that it is a similar case. That case is described in Erskine May as one in which the Bill, being referred to the Examiners in your Lordships' House, was found to be hybrid because one company in ship repairing which fulfilled the qualifying conditions for nationalisation was not proposed to be nationalised, or one of the qualifying conditions placed on the companies was not germane to the subject matter of the Bill.
This is not a case in which there are tests of that kind excluding from the class. But taking the same principles, we believe that the tests that have been drawn up to define the class especially paragraph (b) of Section 8(5) as it would be of the 1984 Act, in Amendment No. 133, is a class which is not a genuine class in the sense that it does not—and, on the Minister's own speech this evening, it cannot—reflect tests which are germane to the rest of the Bill and its history. To put it at its simplest, no explanation has been given for the disadvantageous treatment of those non-voting officials of the unions.
On the other hand, as my noble friend said, unprompted from the Government, there has been the citation of individuals as illustrations of the targets and of those we must exclude. Of course, if they formed a genuine class on tests germane to the Bill it would be no proof of hybridity. When they constitute a group which the Government themselves acknowledge is politically opposed to them and when they constitute a class which cannot be genuine on the basis of the Bill's own tests—I want this to be clear to the Government because they should know what they may be rejecting—I submit that the record shows enough evidence to ask the Examiners whether standing orders are applicable on a prima facie case. If the Government are so confident or so insecure as not to wish the question of a prima facie case to be considered, that is up to them.
I refer again to the report of 1977 from your Lordships' Examiners. One paragraph at page 12,
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speaking about the origin of the rules concerning hybridity, states:
"We are however convinced that they were designed by both Houses to ensure that the subject should have a right to plead his cause before them"—
that is the Examiners—
"if he could show that their legislation would put him to greater disadvantage than it would put his fellows. Parliament has, in other words, been careful to protect the individual from the majority, from the power of the state, or, if you prefer it, from the power of the Government".
I hope that the Government will reflect upon that principle. Since 3rd March the Government have made no bones about the people to whom these provisions would primarily apply. Despite what the noble Lord, Lord Trefgarne, once said, the words of Scargill, Bickerstaffe, Sapper and Gill—not, it is true, of Ron Todd but certainly the rest—came first from the Government's side, with the exception of remarks made by the noble Lord, Lord Wyatt.
One issue for the Examiners to consider must surely be the effect of instructions given to draftsmen on a Bill drawn up on consideration inter alia of the personal position of those particular people. I do not know if the noble Lord has got that. If not, I shall repeat it. Let me presume that he heard me.
There is a remarkable analogy with certain passages in the 1977 report which brings to the foreground the manner in which the targeting of particular persons has been a common feature of the debate—not merely the aim of the Government. The noble Lord, Lord Campbell of Alloway, was quite clear. In one debate he said that there was a problem of the hard Left which had to be dealt with. The noble Lord, Lord Wyatt, was also quite clear about that. The passage in which the noble Lord, Lord Trefgarne, first admitted, indeed almost proposed, that the legislation had been drawn up by reference to individuals—he said later he was advised that that was not so and later still that there was no question about it—is one which I apprehend raises a prima facie case. The Minister is an honourable man. So are they all, all honourable men. I speak not to disprove what they have said, especially what they said first. The fact that they said something secondly does not necessarily finalise the case. Indeed, at Committee stage—the passage can be found in Hansard at col. 1003—the noble Lord said in his strongest statement made before the letter he wrote to me which the noble Lord, Lord McCarthy, has discussed:
"There is no question of this Bill being aimed at a particular person. It is aimed at the categories of person described in the amendment".
That is undoubtedly true. Indeed, it is a tautology. The question is whether "Mr. Scargill and Mr. Todd" is a category which falls within a genuine class on tests germane to the Bill. I put to the House that there is a case into which inquiry should be made that it is not a genuine class. Of course the category is clear. Section 8(5)(b) just happens to be a category which runs counter to every single precept, principle and test in the Bill up to that point in the way that it treats non-voters. And hey presto! It just happens that here we have two general secretaries who are non-voters and whom the Government plainly had in mind, as was first said.
If that case were proved—no doubt more evidence should be taken upon it but that could quickly be

527
assembled since it is not a matter of great length of time or an attempt to keep the Government from their Bill for a month—we can see whether or not there is this apparently prima facie case into which we on these Benches can go no further. Much of the evidence is in the Government's hands and the hands of others who may wish to address the Examiners should they be so allowed. But when we find that the case can be made, on the face of the Bill's history, that it has been revised and amended to put at material disadvantage a handful of identifiable individuals who are named by government spokesmen in a public Bill on tests which are not germane to the Bill, then surely there is a prima facie case which the Examiners ought to consider.
When every newspaper reporter and commentator with the advantage of Lobby access to the Government have long reported the twists and turns of this matter as government moves to get particular union leaders and in the light of debates that have occured in this House since 3rd March, surely there is in all conscience a case for examination by the Examiners. When it is said that the very drafting of the Bill was done against a checklist of individual targets—a proposition that is quite consistent with at least one of the different propositions that have come from the Government Front Bench—there is surely a case for the Examiners to consider whether Standing Orders applicable on a prima facie basis.
The question is whether the new Section 8(5)(b), Amendment 133, in the light of all the evidence on the record, constitutes prima facie a possible class that is non-genuine on tests that are not germane to the Bill. In the light of that, we also raise the question, which comes more into the picture because of the names that have been attracted to it, of the position of Clause 12(4). My submission, therefore, is that this is a matter which the Government should accept.
I want to say this as nicely as I can. I hope that with some 20 or so noble Lords in the Chamber the Government will not mobilise the vast and shadowy army that we know they have elsewhere to defeat these propositions unheard. The noble Lord, Lord Boyd-Carpenter, always enjoys that. One day the bell may toll for him and his arguments may go under. I am serious. This is not a matter which concerns this House alone. I make no bones about it. If it is not raised formally in this Chamber it cannot be raised formally easily in another place. I am well aware that that is the case. I do not raise it for that reason but I have it in mind.
I have also in mind that the Government's response should be serious and calculated. We gave them notice at Committee stage that we wished to raise this issue if we did not have a satisfactory response. We are genuine in thinking that these are provisions, in particular Amendment No. 133, that aim at a small group of individual senior officers of trade unions who are all their political opponents, as the Government think; that they have been selected on that basis and that this has been a large element in the drafting of this amendment to Clause 12(4).
The tests are not germane to the Bill. The Examiners should at least consider whether a prima
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facie case has been made. I beg to move that the Bill be referred to the Examiners.
Moved, that the Bill be referred to the Examiners.—(Lord Weddesrburn of Charlton.)
9 p.m.
Lord Trefgarne: My Lords, the noble Lord may be disappointed but perhaps not surprised to hear that we do not for one moment accept his proposition that the Bill is in any way hybrid. This was a charge to which he alluded during the Committee stage, in particular in relation to Amendments Nos. 130 and 133. Amendment No. 17, which we have considered this evening, seeks to address the same point. I note that your Lordships accepted Amendment No. 133 during the Committee stage and have rejected Amendment No. 17 this evening.
The noble Lord has focused on the definition of categories included in or excluded from the retirement exemption. The new provisions clarify the original intention with respect to the exemption provided by Section 8. They make clear that those currently within scope of Section 1 of the 1984 Act—that is, voting members of the executive—can benefit from this retirement exemption by virtue of an election which was either fully postal or held at the workplace. These are the alternatives set out in the 1984 Act and it would be wrong to leave any doubt that a person elected in accordance with either of them is entitled, subject to the other conditions, to benefit from the retirement exemptions. Equally, the new provisions spell out the intention that those brought into scope of the election requirement by the Bill should qualify for the retirement exemption only on the basis of a postal ballot.
The function within new Section 8(5) of paragraphs (a) and (b) is simply to define those currently within scope of Section 1 of the 1984 Act. In the backward reference to "paragraph (a) of subsection (2) above", taking in the total class of potential beneficiaries of Section 8 as amended—that is, all elected members of the principal executive committee—the immediately following words confine the reference to those elected before the coming into force of Section 13(2) of the Bill and the conditional clause at the end of the new subsection those who were required to be elected by virtue of Section 1 of the Trade Union Act 1984. It is therefore essential that paragraphs (a) and (b), like the parenthesis in subsection (2)(a), reflect the dual structure of Section 1 of that Act which refers in Section 1(1)(a) to persons elected as voting members of the PEC and in Section 1(2) to persons who are voting members of the PEC by virtue of holding some other position in the union.
It will be readily apparent therefore that Section 8(5)(b) does no more than pick up a category already defined in existing legislation and maintaining the rights its members were entitled to expect. It is impossible to predict how many persons will be affected by Section 8(5) or will benefit by the specific provision of paragraph (b). I would recall, however, that there are around 370 trade unions and I should be surprised if the effects of the subsection were limited to the one or two names that have been mentioned in the debate.

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I believe that in the light of those considerations the proposition that this Bill is hybrid is without merit. On the contrary, I think the fact that the noble Lord has brought this Motion forward now is simply by way of a wrecking or delaying proposition and I invite your Lordships to reject it.
Lord Wedderburn of Charlton: My Lords, I have never wrecked anything in my life although I would dearly wreck this Bill if I could. With respect to the noble Lord, he is a little less than fair. We made it quite clear why we had not moved a Motion on hybridity. We wished to give him the maximum chance not only to accept our amendments but to give an explanation.
The noble Lord has not explained one simple factor, to take a central issue—and more emerge as we proceed—that in the new Section 8(5)(b) there is a definition, as he said; there is a category but nobody has ever explained why it is not drafted in the way that one would expect if one read the rest of the 1984 Act and the Bill in 1987 before this provision was tabled to include both those general secretaries with and those without votes; The Government have left out those without votes; and when they left out those without votes they started talking names.
They did not talk about 370 names. I have no doubt that the noble Lord has a reservoir of names. We have not talked about 370 trade unions but we have talked about Mr. Scargill, and Mr. Todd came into the debate. In Clause 12 we talked of Mr. Sapper, Mr. Gill, Mr. Jenkins and Mr. Bickerstaffe. The noble Lord's repetition that he has a category does nothing to explain the absence from the category of the non-voters who have been the base of the reference to individuals. The longer we continue the less he justifies his Bill. This is not a wrecking move.
Lord Boyd-Carpenter: Oh!
Lord Wedderburn of Charlton: The noble Lord, Lord Boyd-Carpenter, sometimes finds difficulty in considering that it is possible for this side of the Chamber to make a genuine point. We raised the matter of hybridity in Committee. We have been quite clear about it. My noble friend Lord McCarthy raised it in his speech this evening. We believe there is a prima facie case for reference to the Examiners. I do not say, and I have not said, that there is a proven case. My submission is that the record is a prima facie case. I am quite astonished that in response to me on this Motion the Minister repeated his speech on the amendment. He has said nothing about the Motion and nothing about hybridity. He has said nothing about why the principles of hybridity could not possibly apply. He has told me that there is a category in new Section 8(5)(b).
This is a very serious moment for the Government. They are not prepared even to have this matter considered on the record that is available. If the noble Lord tells me that I have my procedure wrong, I will accept it entirely. We seem to do so this evening. But I wish to press this Motion. I should like the House to consider the Motion unless the Government are prepared to consider meeting us by consideration, that being rather easier than a Division.
Lord Boyd-Carpenter: My Lords, I hope that the noble Lord will press his Motion so that we can get rid of it. He knows perfectly well that the introduction of this Motion at this stage is simply an attempt to delay the Bill. He is far too well informed in the procedure of this House to believe that there is the slightest justification for the idea that the Bill as it now stands involves hybridity. Indeed, in the books on procedure it is quite clear that hybridity has to be far more precise in its effects on particular individuals than are the clauses in the Bill as they now stand. He will find that all the precedents point that way. I am afraid that the fact that he sees fit to raise this matter at this stage, late in the evening during the Report stage—
Noble Lords: Oh!
Lord Boyd-Carpenter: —of the Bill and when he himself says that he is pointing out that any invalidity that arose in Committee—
Lord Wedderburn of Charlton: No, no.
Lord Boyd-Carpenter: Yes, my Lords. The noble Lord said that. If he reads Hansard in the morning he will see that he said that. It is no use the noble Lord trying to say that because he denies what he said a moment ago, he did not say it. He is simply seeking to obstruct the progress of a Bill which he does not like. I hope your Lordships will make it clear that we do like it.
Lord McCarthy: My Lords, before the noble Lord sits down, will he not agree that it is very unfair to say that we are holding up the Bill? We are committed. Noble Lords can laugh but they should listen as well. We are committed to finish this Bill at Report stage tonight. We shall finish this Bill at Report stage tonight. The noble Lord may go home if he wishes, but we shall finish this Bill at Report stage tonight. The procedure that my noble friend Lord Wedderburn is suggesting does not take the time of the House. It does not take the House to sit. It can be done upstairs. We have not asked that the House should be adjourned. We have produced a procedure that does not delay the Bill at all. I think the noble Lord should withdraw.
Lord Boyd-Carpenter: My Lords, the noble Lord knows perfectly well that if this Motion were accepted it would delay the Bill, because it could not proceed further until the Examiners had examined it from the point of view of hybridity. The noble Lord knows that perfectly well and that is why he is doing it. I do not know why he is wasting the time of the House by denying it.
Lord Wedderburn of Charlton: My Lords, I ask the noble Lord also to read Hansard tomorrow and perhaps to reconsider what he has said. He is right in one respect. I have never said that there will be no delay. I have said that consideration of a prima facie case of applicability of Standing Orders would mean a short delay, but the Government need not in any way lose the Bill. I accept that there would be a short delay. On that the noble Lord is right. He says that we should have raised this in Committee. If we had raised it in Committee he would have said just the

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same kind of thing as he has said tonight. He would have said that we are trying to wreck the Bill, that we are holding it up. We deliberately did not raise it in Committee for a very good reason. We wanted as full a record as possible of what the Government had to say. That is why we put the Government on notice.
I know it is apparently difficult for the noble Lord to believe the character of our intentions. However, I beseech him to think that he may be wrong on this and that there is a certain genuine case to be made. It may be wrong and it may be found not to be correct on prima facie consideration, but in our belief there is a prima facie case. Having taken some advice, we have chosen what we believe to be the right moment to deal with the matter as expeditiously and as properly as possible.
I am sure that the Government, to whom this matter refers perhaps more than anybody else, will have taken a position on this matter. I hope they will agree that some consideration can be given to the matter other than simply dividing the House. If the Government want to divide the House we shall have to do so. They will no doubt bring in their army and we shall be defeated. But that will be the record in this House and it will be for another place to consider.
Lord Trefgarne: My Lords, I hope I may have your Lordships' permission to speak again. I am surprised that the noble Lord claims he has brought the matter forward now so that it can be fully considered. The way in which this matter should be considered would be for the noble Lord to comply with Standing Orders and put this Motion on the Order Paper. He chose not to do that. Standing Orders are perfectly plain on the matter; I refer the noble Lord to the Companion to the Standing Orders. Page 62 defines the Motions which need not be placed on the Order Paper and I regret to say that the Motion which the noble Lord has moved tonight is not one of them.
Lord Wedderburn of Charlton: My Lords, if the noble Lord refers to page 113 of the Companion to the Standing Orders he will find the following:
"It is open to any Lord who is of the opinion that a Public Bill is hybrid, or has become hybrid as a result of any amendment made to it, to move that the Bill be referred to the Examiners. Such a motion is usually moved immediately before Second Reading"—
That would have been useless because the amendment had not been tabled—
"but may be moved at any time during the subsequent passage of the Bill".
That is what we have done and this really is quite absurd.
Lord Trefgarne: My Lords, I am sorry to disappoint the noble Lord. With the permission of the House, I should like to point out that that does not mean that one can do so without notice. I am something of an expert in this matter because I was very much involved in the considerations in the 1976 Act to which the noble Lord refers. At that time I was sitting on the Benches opposite. We were also anxious to have that Bill referred to the Examiners and we could do so only by means of a Motion placed upon the Order Paper. I remember that most clearly because I also took the advice of the House officials at that time. However—
Lord Wedderburn of Charlton: My Lords, with the leave of the House, the noble Lord may be right. I blame no one, but I inquired as to whether I should give written notice of the Motion. I understand the answer to be not at Report stage as regards an amendment. If that is wrong, I apologise.
Lord TrefgarneMy Lords, the noble Lord has not been moving an amendment. He has been moving a Motion. That is very different. I remain of the view that the noble Lord should have put the matter on the Order Paper if he wished to discuss it. However, the noble Lord has chosen to bring the matter before your Lordships at this moment. I must tell your Lordships that the Government believe that there is no possibility of the Bill being hybrid. We have considered the matter most carefully and have taken even better advice than the noble Lord opposite. On that basis I hope that the House will now reject this absurd Motion.
9.16 p.m.
On Question, That the Bill be referred to the Examiners?
Their Lordships divided: Contents, 28; Not-Contents, 56.

DIVISION NO. 5

CONTENTS

Airedale, L.

Parry, L.

Blease, L.

Pitt of Hampstead, L.

Dean of Beswick, L.

Ponsonby of Shulbrede, L. [Teller.]

Dormand of Easington, L.

Elwyn-Jones, L.

Prys-Davies, L.

Graham of Edmonton, L.

Rochester, L.

Hanworth, V.

Seear, B.

Hooson, L.

Taylor of Blackburn, L.

Houghton of Sowerby, L.

Turner of Camden, B.

Jeger, B.

Underhill, L.

McCarthy, L.

Wedderburn of Charlton, L.

Mackie of Benshie, L.

White, B.

McNair, L.

Winchilsea and Nottingham, E.

Morton of Shuna, L.

Nicol, B. [Teller.]

Winstanley, L.

NOT-CONTENTS

Abinger, L.

Hooper, B.

Ampthill, L.

Kaberry of Adel, L.

Arran, E.

sLayton, L.

Beaverbrook, L.

Long, V.

Beltead, L.

Lucas of Chilworth, L.

Bessborough, E.

Mackay of Clashfern, L.

Blatch, B.

Margadale, L.

Boyd-Carpenter, L.

Massereene and Ferrard, V.

Brabazon of Tara, L.

Mersey, V.

Brougham and Vaux, L.

Monk Bretton, L.

Caithness, E.

Mottistone, L.

Carnock, L.

Mountevans, L.

Carr of Hadley, L.

Munster, E.

Cox, B.

Napier and Ettrick, L.

Craigmyle, L.

Nelson, E.

Davidson, V. [Teller]

Radnor, E.

Dundee, E.

Renton, L.

Elliott of Morpeth, L.

Renwick, L.

Ferrers, E.

Saltoun of Abernethy, Ly.

Fortescue, E.

Sanderson of Bowden, L.

Gisborough, L.

Skelmersdale, L.

Gray of Contin, L.

Strange, B.

Greenway, L.

Trafford, L.

Harmar-Nicholls, L.

Trefgarne, L.

Harvington, L.

Trumpington, B.

Hesketh, L. [Teller.]

Vaux of Harrowden, L.

Hives, L.

Wyatt of Weeford, L.

Hood, V.

Zouche of Haryngworth, L.

Reserved in the negative, and Motion disagreed to accordingly.
9.24 p.m.
Lord Trefgarne Lord Trefgarne moved Amendment No. 18:
Page 16, line 9, at end insert—
("and references in this section to a person being a member of a trade union's principal executive committee shall be construed, including in relation to a time before the coming into force of this section, in accordance with section 1 of the 1984 Act, as amended by this section.").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 13 [Election addresses:]
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 19:
Page 17, line 12, after ("himself") insert ("(b) any person who has written, or assisted in the writing of, a candidate's election address; and (c) a person vicariously liable for such a person,").
The noble Lord said: My Lords, this amendment concerns a small but important point in the new Clause 13 which the Government inserted in Committee regarding election addresses of candidates in union principal executive committee elections. Therefore, it is only the second time that we have been able to consider this clause and it is perhaps right that a point of the kind enshrined in Amendment No. 19 should be made now.
What is unacceptable to my noble friends and myself is the exemption in subsection (5) from civil and criminal liability in respect of publication of a candidate's election address, or a copy of it, as required by the clause. The present subsection states that no person other than the candidate himself shall be liable for any civil or criminal liability at all. In searching through the Minister's introduction of this clause I find no sufficient justification for that subsection.
This is a modest amendment. We suggest that the normal rule of law should apply to the candidate whose address it is, and to,
"any person who has written, or assisted in the writing of [it]".
In addition, and, although this may be a somewhat rare case, it is an important one, it should apply to,
"a person vicariously liable for such a person".
The present exemption from all civil and criminal liability is too wide. It would allow a journalist or some other person to write the address and give it to the candidate for the candidate himself to put forward. For there to be found some liability (be it defamation or any other does not matter) and for the candidate to be liable without even the right to sue, as a third party, the person who had actually written it, we find difficult to understand.
We can see that the clause needs to be drafted in such a way as to keep out of liability the printers and others concerned in the technology of the address, but we believe that some other categories of the kind we have proposed should be considered by the Government between now and Third Reading for insertion in the clause. I beg to move.
Lord Trefgarne: My Lords, I am grateful to the noble Lord for his explanation because we were not altogether clear about what this amendment was intended to achieve. As your Lordships will recall,
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Clause 13 was added to the Bill during Committee stage in this House and received significant support. It gives candidates in an election to the principal executive committee of a union the right to prepare and have sent with the voting paper an election address.
The Government were anxious, in framing the clause, that no liability for the contents of the address should rest with the union. Subsection (5) therefore provides that only the candidate shall be subject to any civil or criminal liability in respect of election addresses produced and despatched for the purposes of the clause. The Government believe that it should be the candidate's responsibility to ensure that nothing he puts into his address, or that any other person contributes to his address, is libellous or otherwise in breach of the law. It is his address and he alone should be responsible for it.
I am advised that the introduction of vicarious liability into the subsection might, in some circumstances (for example, if the candidate is an employee) lead to the union being held responsible for the contents of the address. I am certain that that is not what the authors of the amendment intended.
The area of civil and criminal liability for the contents of a published text is a complex one. The Government remain convinced that the simplest and fairest approach is to leave the clause as drafted; that is to say, with responsibility for the contents of an election address resting on the candidate's shoulders alone. Therefore, I hope the noble Lord will not press his amendment.
Lord Wedderburn of Charlton: My Lords, I am not going to press the amendment, but I am going to press the Government to think again on one point. I accept that the formulation in paragraph (c) about vicarious liability does not, shall we say, hit the target. The need is to keep the union, the printers and other persons concerned with the address out of liability. That is agreed. It is agreed also that the candidate himself must be liable for such liability as arises from the address, be it defamation or whatever it is. Surely the Government must think again on this practical point, which is important to thousands of ordinary trade unionists who will be standing for office.
To say that liability must be on the shoulders of the candidate and no one else is a very severe proposition. It is not the normal rule of law. We do not have election addresses, but if I wrote a defamatory pamphlet and passed it to the noble Lord, I would be liable for the publication and for any defamation. We may have a candidate who is a man of modest means and perhaps does not understand the finer points of libel that the noble Lord and I understand. A journalist may say, "do not worry about that; I will write it for you". We know such people. The noble Lord knows them and I know them. Some of them perhaps haunt the Palace of Westminster. The candidate may put the article in, in all good faith, and then find that it is grossly defamatory. Surely the journalist must be liable.
This is a simple practical point and not a matter of principle. The noble Lord is saying that the candidate must go off to a legal adviser and have it vetted because that is the only way. The noble Lord knows

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very well how difficult it is to know whether a tough election address contains defamation. We all know that. This puts on the shoulders of ordinary trade unionists who want to stand for office the burden of going to lawyers every time they think there is a problem. It is just not fair. At least they should have this right. They should know that anyone who has led them innocently into publishing something which is defamatory will be equally liable with them. I will tell the noble Lord why that is so. In a situation of being, as they would be, joint tortfeasors, the candidate could then claim over against the party who was more
536
at fault than he. In such a case it would obviously be the journalist. I do not want to cast the journalist in a nasty role; it applies to whoever is involved.
I beg leave to withdraw the amendment but I hope the Government will think about the second category in this amendment. It is a very serious matter and it will arise again and again in the case of those who suggest items for candidates to put in. I hope that the Government will come back with something on Third Reading.
Amendment, by leave, withdrawn.
Clause 15 [Independent Scrutiny of certain ballots and elections]:
9.30 p.m.
[Amendment No. 20 not moved.]
The Earl of Dundee The Earl of Dundee moved Amendment No. 21:
Page 18, line 31, leave out from ("person") to ("are") in line 32 and insert ("who supervises the production and distribution, for the purposes of the ballot or election, of all the voting papers and the person to whom those voting papers").
The noble Earl said: With your Lordships' leave, I shall speak to Amendment No. 22 as well as to Amendment No. 21.
When we discussed the amendment of the noble Lord, Lord Wyatt of Weeford, in Committee, I undertook to consider whether it would be practicable to require the scrutineer to despatch voting papers. We have duly considered this and the government amendment represents the outcome of that deliberation. The noble Lord, Lord Wyatt of Weeford, very kindly came between the last stage and now to discuss the matter with my right honourable friend the Minister of State. I think that he accepts the Government's position. He may agree therefore not to move his own amendment.
The Government amendment represents a tightening-up of the scrutiny provisions, in that, on the face of the Bill, it will be apparent that the scrutineer is required to supervise the production of voting papers and their despatch. Unions will, of course, continue to be free to opt for the scrutineer actually to print and despatch voting papers. If they do not do so, and choose instead to print and despatch them themselves, then they will do so in the clear knowledge that the scrutineer will be supervising the union's actions and will be required to report on them. I commend the amendment to the House, and, although I began by saying that I intended speaking also to Amendment No. 22, perhaps I should allow the noble Lord, Lord Wyatt of Weeford, to decide what he will do.
Lord Wyatt of Weeford: My Lords, of course I prefer the wording of Amendment No. 22. It would have placed the obligation for the production and distribution of the ballot papers more squarely on the Independent scrutineer. However, I am grateful to the Government for having considered the point carefully. A greater power has now been given to the independent scrutineer. Combined with his duty under subsection (5)(e) and subsection (6)(b) of Clause 15 to make a report confirming that everything has been printed, counted and distributed properly, that ought to make it fairly watertight. I cannot imagine any professional person making a report to the union that in some way was false.
Can the Government say how the independent scrutineers are to be chosen? It is of vital importance that they have no links—political, financial or otherwise—with the unions for whom they will act as independent scrutineers. The independent scrutineer must be fully and truly independent of all connection with the unions. Also, now that we have the
538
appointment of an independent scrutineer with statutory obligations, who will pay for his services? The Government pay for the postage and printing of ballot papers, but I can find no indication of who is to pay for the independent scrutineer. If he is to be a highly competent professionally qualified person, I think that the Government should pay. The union did not ask for him in the first place, and I do not see why they should have to pay for such a person.
Lord McCarthy: My Lords, the trouble with the noble Lord, Lord Wyatt of Weeford, is that every now and again he tries to be fair. We know who will pay for the scrutineer: it will be the union. The union will not get the money back because it gets only half the money back now.
I have examined the amendments carefully but I cannot see the difference between the amendment of the noble Lord, Lord Wyatt of Weeford, and the Government's amendment. I wish that the Government would accept my amendments by putting down amendments like the one now under discussion. Amendment No. 22 reads,
"by whom all voting papers for the purposes of the ballot or election are to be supervised as to their printing and are distributed to those voting and to whom".
Amendment No. 21 reads,
"who supervises the production and distribution".
We do not like either amendment, of course. As the noble Lord, Lord Wyatt of Weeford, rightly says, the independent scrutineer has been foisted upon the trade union movement. We never asked for him and we cannot see the point of him.
Under the Bill the scrutineer already has considerable powers. He receives the votes. He counts and reports on the votes. He decides as to the number of the votes—the number returned, the number valid, the number spoiled, the number for the various candidates and therefore who wins—and he reports on whether he is satisfied. How much further does the scrutineer need to control the results?
With the aid of an efficient and up-to-date electoral roll, he will know everything he can possibly want to know. If a union fiddles the ballot a scrutineer with his wits about him, and with the aid of an up-to-date electoral roll, will know. If supporters of certain candidates stuff the boxes with Mickey Mouse votes the names will not be on the roll. As long as the scrutineer has an up-to-date roll, he will disregard them. The names of dead men could be on the roll. But if the union has managed to fiddle the roll so that there are dead men on it, the scrutineer will not know even if he has the powers granted by the amendment.
Those who fiddle the ballot may purloin the papers or substitute false papers. If those people are on the roll, the scrutineer will have to accept them unless he tries to see everybody who has voted. In the real world the scrutineer has all the powers he requires as long as he has an up-to-date roll. If one wanted to give him more powers one would have to make him live in the union like a policeman. He would have to police the roll and go out and check up that the people on the roll were not Mickey Mouse names who had been dead for years.

539
It will cost thousands of pounds. It already costs thousands of pounds. The Royal College of Nursing uses the provisions of the 1980 Act. It does a good deal of balloting but it gets back only about 50 per cent. of the money. It will be extremely expensive. We know that the scrutineers will be officers of the Electoral Reform Society. It is a good society but it is very expensive. It will charge by the day. That may be what it is all about.
Lord Rochester: My Lords, from these Benches I should like to remind the House that for long we have advocated that trade unions should use full secret postal ballot procedures in electing members of their principal executive committees. It should be done under independent supervision, and that independent supervision should extend to the distribution as well as to the receipt and counting of the ballot papers. We are glad that with this amendment the Government have at last come round to the same view and are happy that this independent supervision should also include the production of ballot papers.
Having said that, I too am interested in the point raised by the noble Lord, Lord Wyatt of Weeford, and should like to know how the scrutineers will be appointed. More particularly, I am interested in the question of payment. On earlier occasions I have made the point that having independently supervised elections is a costly business. I have sought, and to the best of my recollection obtained, assurances that the expenditure may be covered, very largely at any rate, under Section 1 of the 1980 Act. I am sorry that I have not been able to give notice of this point to the Minister, but I wonder whether he can confirm that, in relation to expenditure now to be incurred under independent supervision, payment can be made from public funds by an extension, as it were, of Section 1 of the 1980 Act. If he cannot confirm it tonight, will he undertake to consider that point between now and Third Reading?
9.45 p.m.
Baroness Blatch: My Lords, this is the first public opportunity I have had this afternoon to stand up and make an apology to the House for having done something which almost marks my anniversary in this Chamber. I made the mistake of walking through the wrong Lobby on an amendment earlier on. The significance of that is that the amendment in question was Amendment No. 1, which as I understand it succeeded with a majority of only three.
However, I should now like to speak to this amendment. First, I welcome the Government's alternative wording and reiterate the concerns of the noble Lord, Lord Wyatt of Weeford, in that the scrutineer must be independent. I must say that I am disappointed in what the noble Lord, Lord McCarthy, has said because I hoped that all Members of your Lordships' House would want the overseeing of the exercise of secret ballots from start to finish. I know that there will be screams of, "Where is your proof?". But I think that there are enough question marks over what can go wrong at the issuing
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of ballot papers. I should remind the House of a phrase that was used in the previous debate—"ballot paper-stamping parties"—and there are similar other accusations. Surely it would be in everyone's interest to see that the exercise was overseen from start to finish.
Baroness Turner of Camden: My Lords, is the noble Baroness not aware that as regards ballot paper-stamping parties accusations there have already been retractions published in the newspapers?
Baroness Blatch: My Lords, yes, I am aware of that. However, what I am saying is that there is a perception abroad that all is not well. Therefore to have this exercise overseen will surely do away with any such suspicions about what may happen in those circumstances. It is only right that there should be proper scrutiny from the start of the exercise right up until the finish. In that way any doubts that people may have will be swept away.
However, there is another significant point which needs to be made. I should again have thought it in everyone's interest, including that of the noble Lord, Lord McCarthy, to see that the individual wishes of all members of trade unions are properly reflected in the result. If the exercise is properly overseen from the printing and production of the ballot papers, their issuing and allocation and finally counting, we shall be closer to reflecting properly the individual wishes of all trade union members. Surely that would be in everyone's interest.
I turn to the point about the costs of the exercise amounting to thousands of pounds. We might reflect for a moment on the costs that would be incurred should we get it wrong and the sometimes erroneous results that may arise from tampering with ballot papers. The cost to the country and to many union members can be very great indeed. I believe that the cost of the exercise, wherever it falls, is fully justified.
Lord McCarthy: My Lords, will the noble Baroness admit that it is not a matter of people merely making remarks? For example, the Sun quite specifically had a report relating to nine members of the Transport and General Workers' Union and the way they fiddled the ballot, as a result of which it has had to pay them £100,000 in damages; those are the facts.
Baroness Blatch: My Lords, my concern is not only that the exercise should be done properly but that it should be seen to be done properly. The amendment is about seeing that it is performed properly.
The Earl of Dundee: My Lords, I should like to respond to a couple of points raised by the noble Lords, Lord Wyatt of Weeford and Lord Rochester. First, they asked me how it is that the scrutineer is paid, and the noble Lord, Lord McCarthy, reminded the House that such a scrutineer is paid by the unions. Indeed, as many noble Lords will be aware, some unions already voluntarily pay for scrutineers when they choose to appoint them.
Secondly, the noble Lords, Lord Wyatt of Weeford and Lord Rochester, asked me about the procedure for choosing such scrutineers. I should like to draw

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their attention to Clause 15(3)(a), which provides that scrutineers must satisfy the requirements to be specified by the Secretary of State. I should also draw their attention to subsection (2)(b) in the same clause, which provides that the scrutineer must be seen to be independent of the union.
The noble Lord, Lord Rochester, asked whether the Government were prepared to contribute public funds towards the cost of the scrutineer. The Government's position at present is that we do not feel that the case has been made out to that effect.
On Question, amendment agreed to.
[Amendment No. 22 not moved.]
The Earl of Dundee The Earl of Dundee moved Amendment No. 23:
Page 20, line 3, at end insert—
("(8) Section 6A of the 1913 Act (application of sections 3 to 6 of that Act to employers' associations) shall apply to the provisions of this section, in so far as they relate to the requirements mentioned in subsection (1)(a) above, as it applies to sections 3 to 6 of, and the Schedule to, that Act.").
The noble Earl said: My Lords, for the convenience of the House I shall speak also to Amendments Nos. 24 and 60. These are technical amendments which are necessary for consistency with earlier legislation. The provisions which presently govern political fund ballots, contained in the Trade Union Acts of 1913 and 1984, apply to unincorporated employers' associations just as they apply to trade unions. The amendments ensure that Clauses 15 and 16 will similarly apply. The amendment to Schedule 3 corrects an oversight in the drafting of the 1984 Act which leaves trade unions and unincorporated employers' associations in a different position in one respect. I beg to move.
On Question, amendment agreed to.
Clause 16 [Remedy with respect to ballot on use of funds for political purposes]:
The Earl of Dundeee The Earl of Dundeee moved Amendment No. 24:
Page 20, line 45, at end insert—
("(5) Section 6A of the 1913 Act (application of sections 3 to 6 of that Act to employers' associations) shall apply to this section as it applies to sections 3 to 6 of, and the Schedule to, that Act.").
On Question, amendment agreed to.
Clause 17 [Ballots on industrial action affecting different places of work]:
Lord McCarthy Lord McCarthy moved Amendment No. 25:
Page 21, line 27, after ("member") insert ("or have an employer who is an associated employer of that employer within the meaning of the 1974 Act").
The noble Lord said: This amendment introduces an additional exclusion to the general need in Clause 17 to have separate ballots at each place of work. Your Lordships will remember that although Clause 17 provides for unions to have a separate ballot at each place of work, it provides in certain circumstances for a number of exceptions. We are trying to add to the number of exceptions. The clause clearly says that one of the exceptions is where all the workers involved in the strike have the same employer. We are trying to add the requirement that
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there should be one ballot if the workers are all in the employ of an associated employer. The definition of an associated employer, as we make clear in the amendment, comes from Section 30(5) of the Trade Union and Labour Relations Act 1974. It provides:
"For the purposes of this Act any two employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control; and in this Act "associated employer" shall be construed accordingly";
in other words, if the company is a subsidiary of a larger company. In effect, it is one employer; but the employer, if he wishes, can divide up his companies or his sub-companies into sub-sub-companies. If he is free to do that—on the face of the Bill he is free to do that—we could have an equivalent to the fear that the noble Lord, Lord Trefgarne, had when we discussed other parts of this clause; that is to say, that the unions would strategically alter the boundaries of the bargaining unit so as to bring in those groups that they wanted to bring in and leave out those that they did not want to bring in so as to obtain the right answer.
If the employer were free to create subsidiaries, to say that the employer was not the same and to force the union to have separate ballots, there would be a reciprocal device on his side much more easily available to him, because, as I tried to suggest in Committee, if one wants to change bargaining units one has to get the employer to agree; but if the employer wants to change the framework of his organisation, he does not have to get the union to agree. He can change the framework of his organisation. He could render primary action secondary action, and at the same time he could necessitate the union having more than one ballot.
We suggest that if the Government genuinely mean the same employer, they should mean the same employer, and the same employer is in fact the same employer, but he has a series of subsidiaries. It is true that they rejected an amendment which we put down in Committee and which tried to bring in more than one employer. This was our amendment which talked about a bargaining unit. One of the arguments which the Government made against that amendment was that although on the one hand they said it was very similar to their clause, which we found to be meaningless, nevertheless it was clearly a multi-employer amendment, or would be if passed, and they were not at all clear that they wanted to include more than one employer in the ballot. This has the advantage of being absolutely clear.
All we are saying now is that if it is truly one employer—because the employer has a number of subsidiaries—if the union wishes to do so it should be able to hold a ballot across the whole of that employer, because that is what it is—one employer. I beg to move.
Lord Trefgarne: My Lords, it is possible that the amendment as drafted will have an opposite effect to that intended. Subsections (1B)(b)(ii) and (iii) must be taken together. It is not clear how the amendment to paragraph (b)(ii) affects the definition of "employer" in paragraph (b)(iii), but it is likely that the same interpretation would apply to both. The effect would be that a union would be required to

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hold separate ballots for each workplace where the balloting constituency consisted of members employed by one employer who have a common distinguishing factor if there were any members employed by an associated employer who also shared the common factor but were not entitled to vote. The effect of the amendment would therefore be to limit the scope of the exceptions provided by the subsection.
To put the point another way, in considering whether the balloting constituency was such as to avoid the separate balloting requirement a union would have to consider for each member voting not only whether the relevant requirement was shared by other members employed by the same employer but also whether it was shared by any other members employed by an associated employer; that is, the test would be harder to satisfy.
If the concern is that unions will not be able to aggregate votes across associated employers—and the noble Lord referred to that—the amendment is simply unnecessary. As the clause stands, aggregation of votes across employers is possible provided that the conditions of the clause are satisfied in relation to each member in the balloting constituency.
In relation to the subsection covered by the amendment, this means that separate ballots will not be required where the balloting constituency includes members employed by a number of employers if entitlement to vote is given to every member of the union employed by any one employer who shares an appropriate, common distinguishing factor with other members in the balloting constituency employed by that employer and does not share with any member employed by that employer who is not in the constituency. The common factor which distinguishes the group of members employed by one employer need not be the same factor used to distinguish the members employed by a second employer from those who are not entitled to vote.
I am sure the noble Lord will agree that that clarifies the matter beyond peradventure and that he will feel able not to press his amendment.
10 p.m.
Lord Wedderburn of Charlton: My Lords, before the noble Lord sits down, now that he has clarified the situation perhaps I may ask him two questions. Is it not the case that the argument which is deployed against this amendment is precisely the same argument as was deployed against a different amendment in another place, and in Committee in this place? Is it not misjudged in respect of this amendment, which is different from the ones ich preceded it? Is it not the case that this amendment, by entering the words on the Marshalled List at the end of sub-paragraph (ii) in subsection (1B)(b)(ii), would give the union the option whether to couch the balloting constituency either in the one employer unit or in the employer plus his associated company or associated companies? What it does in this formulation, as opposed to the formulation which it took in previous amendments where the Government
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were right to say that it might limit the union, is to permit rather than to demand. Surely the Government should think again.
The matter I am about to mention is very important. It is the employer who controls whether or not there is more than one employer. If the employer wants to set up six subsidiaries, then there are seven employers with the holding company. This is a very important matter to trade unions. This amendment which came in quite late in another place—it is what we prefer to call the bargaining unit exception to the separate workplace ballots—will be the one on which the viability and the mere practicability of this whole arrangement turns. Therefore it is very important that the language should be right and even more intelligible than it is.
As I understand the noble Lord, he has said that paragraph (b)(ii) states that the member at whom we are looking—that is the member entitled to vote—has a factor,
"in common with some or all of the other members of the union who are accorded that entitlement and have the same employer as that member".
I have to use the language of the Bill although I wish it could be otherwise. Because the common factor need not be the same factor linking all the members of the balloting constituency in the bargaining unit, the bargaining unit can turn out to have employees on one aggregated majority and not on separate workplace majorities with different employers.
I say to the noble Lord that I do not believe that that is the better construction and interpretation of paragraph (b)(ii). I see his argument that it is a possible interpretation. I beg the Government to reconsider the language here because I do not believe that it is the interpretation that the courts will put upon it. I put to the Minister this straight question. If his interpretation of paragraph (ii) is what the Government want—and it is certainly what we would consider to be the more sensible arrangement if this kind of thing is to exist—why not get rid of the words:
"and have the same employer"?
If one can aggregate workers who have common factors in their terms of employment one could apply the same principle to this House. We might have a few common factors with the Liberal Benches. We might even have the odd common factor with the Government Benches just now and again. Therefore we would all get in the same bargaining unit. If that is so and it does not matter how many different employers there are, what is the function of the words,
"and have the same employer as that member"?
Why have the words there at all if one can have different employers?
Most people and, I believe, most managements are taking this paragraph to mean that the union can only go as wide as employment within the one employer unit. That is the common interpretation. If it is not the right interpretation, will the Government consider this matter? This is a plea for understanding before we get into the new rules of the new game. Why not remove the words that I have mentioned? What is their function if what the noble Lord says is what we both want? I do not see that there is any need for them. Will he think about that?
Lord Trefgarne: My Lords, with your Lordships' permission I shall speak again. I recognise that these are matters of high legal interpretation. The Government remain very much of the view that the interpretation that I have advanced is correct and that the difficulties which I see with the amendment exist. Indeed if the concern in the mind of the noble Lord is the possibility of an employer sub-dividing his workforce by, for example, hiving off activities to associated employers, then the easier he makes it by this provision for the union to satisfy the tests which give exemption from the separate balloting requirement. If, however, the noble Lord wishes me to consider further whether we have got the wording right, I shall happily do that between now and the next stage but not with any commitment that we shall bring forward any change.
Lord McCarthy: My Lords, the noble Lord uncovers a distinct difference in emphasis between myself and the noble Lord, Lord Wedderburn of Charlton. It seems to me that every time we turn to this part of the Bill, it is impossible for anyone to speak sense. It is gibberish from start to finish. It is gibberish and no one can make any sense of it. Our amendment is trying to make sense of it. We say we should put something sensible in and say:
"an employer who is an associated employer".
We know what that means. We know what it means because it is clearly defined in the 1974 Act. If we put in the words "associated employer", we shall have taken out a bit of gibberish and put in a bit of sense.
The noble Lord says: "You are making it worse". It is always possible to say that we are making it worse if we fall back on the gibberish. We say that—
Lord Mottistone: My Lords, perhaps the noble Lord will allow me to intervene for a moment. As I understand it, only one person should speak after the Minister speaks at Report stage of a Bill. We have heard the noble Lord, Lord Wedderburn.
Lord Wedderhurn of Charlton: I asked a question.
Lord Mottistone: It was a long question.
Lord Wedderburn of Charlton: Yes, it was.
Lord Mottistone: That is carrying it a bit too far. That double act which involved an enormously long question is against the spirit of what was sought in terms of expediting Report stages of Bills.
Lord McCarthy: My Lords, I understand what the noble Lord says. I believe that his criticism, whether or not it is valid, should be directed at my noble friend. I am telling the House whether I accept the Government's answer and whether I wish to divide the House on my amendment. I believe that even under the modified rules I should be entitled to do that.
Lord Mottistone: Please do it quickly.
Lord McCarthy: I shall do it as quickly as I can, my Lords. I wish that the issues were simple. However, the more I am interrupted, the longer I shall take.
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The Minister has said: "You are making it worse". If we fall back on gibberish and say that it is wider than the clearly specific words "associated employer", we can say that it is being made worse. However, the Minister knows what we wish to do. We wish to make it better. We wish to allow unions to use an associated employer as the basis for one ballot. If he thinks that our words are not clear, he can give us other words. He can accept the principle. He has done that before.
The second point is that the Minister says: "You can leave the gibberish alone and I shall tell you what it means". The fact is that no one can tell us what it means. The Government continually give interpretations of subsection (1B)(b)(ii). They say that those interpretations are wider than our amendments and wider than a single employer. However, as I have said before, we cannot get that out of the words. I shall not divide the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 26:
Page 21, line 38, at end insert—
("(1C) Subsections (1A) and (1B) above shall be disregarded in the application of this section to section 1 of the Employment Act 1988.").
The noble Lord said: My Lords, the amendment raises an issue which I believe was not raised at Committee stage, other than inferentially. We raise it on Clause 17, having not moved an amendment on Clause 1. In saying that, I disclose to your Lordships that the amendment concerns the interrelationship of Clause 17 on separate majorities and separate workplace ballots, and Clause 1 on the right of the union member to demand a ballot in all cases of industrial action or obtain an order from the court to ensure that the union controls the conduct of its members.
As I understand it, the Government's method of amending Section 11 would apply separate workplace ballots to the Clause 1 ballots as well as to what I might call the 1984 Act ballots. They are very different. As we have seen, the union member does not have to prove any prima facie case of a tort or breach of employment contract, whereas the employer does. In other words, although the questions are the same, on the Government's construction of the Bill after the rewrite at the Committee stage, there is no presumption that any particular rule should apply to the Clause 1 ballot as well as to the 1984 employer ballot, or to both.
The separate workplace majority and separate workplace ballot provided for in Clause 17 (as it now is) have been discussed very largely in terms of the employer enforcing a ballot or obtaining injunctions against industrial action if no such ballot has been held. If I am right in thinking that this would also apply to Clause 1, the Government should perhaps explain why there is a need for a separate workplace majority rule for ballots demanded by a member. The union member may or may not see the position that way.
I can understand that a union member may demand a ballot in the face of industrial action—and after today's debate we know how wide that category

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is—and may say that he wants everyone to vote. He may think that he will do better that way. Alternatively, he may say that he just wants a ballot at his own workplace. I do not know that there is a presumption either way. Since the Government believe in individual choice, perhaps they should give him the option, although plainly there would be arguments against that.
If it be right, I want to know the reason for applying separate workplace ballots in the totality of the rule to the Clause 1 union member enforced ballot. Indeed, should the exceptions be the same? Have the Government given any thought to whether there should be different exceptions?
As we have seen in what my noble friend Lord McCarthy calls the "gibberish exception" (and I do not disagree with his analysis of the language though sometimes we make different efforts to try to find some sense in it), or the bargaining unit section as it should be termed if it were written in English, not law, the bargaining unit exception is plainly directed towards the employer's situation. If the employer is to enforce a ballot it makes a great deal of sense to have a ballot across the whole bargaining unit rather than separate workplace ballots and separate majority rules. There is at least some glimmer of sense in that. It does not necessarily follow that it should be the case in Clause 1.
Perhaps the Government thought of doing that in both cases because they could not think of anything else. It could be that that is the best rule, but I am not sure if we can accept that. I should like to move the amendment in those questioning terms, probing at an issue which I think has not been before your Lordships, and see what the Government's response will be. I beg to move.
The Earl of Dundee: My Lords, the amendments, if accepted, would deprive a union member of the ability to apply to the court to complain that his union was inducing or was likely to induce him and others to take industrial action without holding a ballot which satisfied the requirements in what will be the new Sections 11(1A) and (1B) of the 1984 Act.
The amendments could thus result in instances where a union had held a ballot whose conduct and result protected it against challenge by a member under Clause 1, but which was not sufficient to preserve its immunity from a legal action brought by an employer under Section 10 of the 1984 Act. That is undesirable in itself.
The member's right to restrain his union from inducing him and others to take industrial action without support from a proper ballot—and I stress the word "proper"—is as important as an employer's right to take an action in tort if a union induces its members to breach or interfere with the performance of employment contracts.
A union member may feel particularly aggrieved—and rightly so—if his union has manipulated or is likely to seek to manipulate the result of a ballot on selective industrial action by aggregating the votes of members in his workplace with those of others on any basis which does not
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satisfy the conditions which will be set out in the new Section 11(1B). That is what the Bill currently provides, and what the amendments would remove.
In answer to the noble Lord, Lord Wedderburn, I hope that those few remarks may be of some assistance.
10.15 p.m.
Lord Wedderburn of Charlton: My Lords, I think that it is a great pity that the Government will not think a little more about this question. It is argued that to get rid of the new provisions in Clause 17 which amend Section 11 of the 1984 Act for the purposes of Clause 1 ballots—if I may call them that—would deprive the member of the advantage of having separate ballots and separate majorities in separate workplaces.
He may not want that. Who said he wants it? The real reason why it is applied to both is that until 3rd March nobody conceived that the basis of the ballots and the legal rules in the employer-enforced ballot of the 1984 Act as amended and Clause 1 of this Bill would be different. They were the same. We heard that this evening. They were both based on a case of the proof of the tort of inducing breach of contract or of interference with a contract. They were the same rules for both.
So of course the Government applied this curious notion which in any case they have never properly explained. They have never explained why they wanted separate workplace ballots. If they wanted to deal with selective balloting—if it existed and it does not seem to have done—it would not have been done by means of this kind of mechanism. It is the most curious provision of labour law ever put on the statute book.
If one has ballots which are based on the same legal rules of the law of tort in Clause 1 and in the 1984 Act, then automatically, because one cannot do anything else, one applies the provisions to both of them. The Government however have drawn back from doing that. The rules in Clause 1 are totally different from the rules in the 1984 Act. They cover all kinds of industrial action. Whether it is breach of contract or whether there is a tort—it does not matter—the union member does not get the ordinary kind of injunction. He gets a special order ordering the union to ensure that the members stop any conduct which results from the inducement, not just industrial action. All that has been explained to us. It is very different.
I ask the Government why having introduced that difference they are forcing the individual union member to have separate workplace ballots which he may not want. The Government care about the individual union member only as it suits them. However, I tell them again that this is a further piece of evidence for an analysis of these measures—the May 3rd measures, as they may become known.
Of course it makes sense if the union-member ballot mentioned in Clause 1 is a swallow for the summer of the employer-enforced ballot or the employer's attitude and manoeuvring under the 1984 Act. One has the ballot in the same way as the employer could have enforced it, so that the employer

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can see the result without having the odium, the difficulty or even the inconvenience of demanding the ballot. That is the reason. But the Government will not have any logic behind the application and will not be able to say—and I should like to press this point—that they are putting the question to individual union members in their interests and for their choice, because there will be many situations in which the union member will say, "I want a ballot" and he will not think simply of his own place of work as it is defined in this section, which is extremely narrow; he will be thinking of a number of workplaces—not many perhaps, maybe only two or three—and will want a common vote. But he will not get it.
If the Government want to leave the matter there, that is fine, but if they do, the main function of the rule will be to give the employer or third party another way of setting up a ballot without doing it themselves. That is how it will be seen and that is how it will operate. I beg to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 27:
Page 22, line 14, leave out ("definition") and insert ("definitions").
The noble Lord said: My Lords, one effect of Clause 17 will be to limit the ability of trade unions when organising a strike ballot covering employees with different places of work to do so in a manner designed to achieve an artificially favourable result by selecting from a number of workplaces those which will be most likely to produce a favourable vote when aggregated together.
The definition of "place of work" for the purpose of these new requirements is contained in subsection (3) of the clause. I shall speak to my Amendments Nos. 27 and 28 together. Amendment No. 28 is the substantive amendment and Amendment No. 27 is consequential upon it.
Amendment No. 28 makes clear that an individual ship is not regarded as a separate place of work for these purposes. That is considered to be a true reflection of the shipping industry's employment practice. For example, the ferry sector of the industry, which is one of the most vulnerable to industrial action, generally operates in a manner that suggests that a company fleet or section of a fleet operating from a particular port is the unit which compares with the shore establishment in a typical shore-based industry. In many cases seafarers are signed on on collective crew agreements so that their employment may be interchangeable within the company's ships operating from a specified port. In addition, because of crew rosters more than half the workforce may be at home on leave and not working on a particular ship at the time of the ballot. There is therefore everything to be said for making it clear that an individual ship is not regarded as a separate place of work.
The General Council of British Shipping is advising me on this point. It has been informed by the Department of Employment that this definition as drafted at the moment is intended to exclude an individual ship. However, the council's legal advisers
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believe that the clause as drafted could be interpreted to include an individual ship as a place of work. This amendment arises for the first time at this stage of the Bill because discussions with legal advisers have been taking place in the meantime.
It is quite important that the general council's legal advisers should have regard paid to their advice because they are used to dealing with shipping problems in a way that perhaps the Department of Employment is not. The GCBS believes that it is essential that this point should be clarified within the Bill. Otherwise shipping companies will be unable to develop effective industrial relations strategies for dealing with the situation contemplated in the legislation and unions may be encouraged to manipulate ballots and to use divisive tactics. In particular, companies will be reluctant to seek redress in the courts when they believe that the strike ballot provisions have been abused if the outcome of any such action is uncertain.
I very much hope that the Government will accept this small amendment. I cannot see that it does any harm to the Bill but it has the great benefit of clarifying this point, which is of great importance to the shipping industry. I beg to move.
Lord Wedderburn of Charlton: My Lords, on these Benches we support the amendment and appreciate that the noble Lord is putting it forward at this difficult time in the industry. I am sure that it is not put forward simply as an employer's amendment. It is in nobody's interest to have the matter as obscure as it is in the Bill at the moment. Either the ship is a place of work as a definition or it is left as a no-man's land—and the courts will not decide that.
I am not surprised at the legal advice given by the shipowners' council. It seems sensible to have some clarity in this matter. The suggestion that the noble Lord puts forward seems a sensible way to proceed. It would not give an advantage to the unions. I am not sure that it would give the advantage to the employers that he suggests. It would produce some clarity for a basis from which the parties could proceed constructively in the future. Everything militates against obscurity. We support the amendment for that reason.
Lord Trefgarne: My Lords, the formulation of the relevant subsection of Clause 17 creates a firm link between "place of work" for the purposes of the clause and the term "premises". The term "premises" is however left undefined, as is also the case, for example, in Section 15(2) of the Trade Union and Labour Relations Act 1974 in connection with the determination of a person's "place of work" in certain circumstances related to picketing.
Legal advice is that "premises" as used in Clause 17(3) cannot as it stands be taken to include a ship. This would render the amendments unnecessary. Given this advice, I do not believe that the courts would take the view that for the purposes of the clause as it stands a person's place of work could be a ship or vessel.
However, in addition, the specific exclusion of ships or vessels might well imply that other movable structures—aircraft for instance—were included in

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the definition. Your Lordships will understand that there would certainly be the potential for considerable confusion if these amendments were to be accepted.
The clause as drafted I believe covers the point which the amendments seek to address and I hope, therefore, that my noble friend will be prepared not to press his amendment.
Lord Mottistone: My Lords, I might not have been, but I was so alarmed at the support from the noble Lord, Lord Wedderburn, that I can only imagine that there must be something greatly flawed in the amendment on behalf of the employers in the shipping industry. That weakens my enthusiasm for the amendment right from the word go. However, I think my noble friend's answer was absolutely hopeless. Who on earth will assume that it applies to aircraft when it says "ship or vessel"? A ship is a ship is a ship. I suppose if he had said "hovercraft" that would be a different matter, because nobody quite knows what that is, though I believe we have tried to define it in law.
However, it comes down to the fact that the lawyers of the General Council of British Shipping have one view and the Government's lawyers have another. I must confess that I think it is more likely that the shipping industry's lawyers know about ships. However, I cannot expect the Government's lawyers to accept that lying down because they never accept anything if it criticises them. There is no point in pressing the amendment. However, I have managed to move it all in a minute and a half wheareas the noble Lord took five for his wind-up, so perhaps I am saving time.
This is not an amendment that one can readily press at this stage. I hope the provision works and I hope that the shipping industry will not suffer as a result of what my noble friend has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 28 not moved.]
Clause 19 [Appointment etc. of the Commissioner]:
Lord McCarthy Lord McCarthy moved Amendment No. 29:
Page 22, line 34, at end insert ("and who shall be a person suitably qualified in, and with experience of, trade union affairs.").
The noble Lord said: My Lords, this is another of our minimalist amendments. We are concerned now with Clause 19, and the appointment of CROTUM, the Commissioner for the Rights of Trade Union Members. The amendment provides for the qualifications of the commissioner. It is interesting that the Bill says virtually nothing about the qualifications of the commissioner. We are told that:
"The Secretary of State shall appoint an officer to be known as the Commissioner for the Rights of Trade Union Members".
We are told:
"Neither the Commissioner nor any member of his staff shall, in his capacity as such, be regarded as a servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown".
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That is what he is not to be. We are concerned with what he is to be. The amendment states that he shall be a person,
"suitably qualified in, and with experience of, trade union affairs".
This amendment we put on the Marshalled List at Committee but there was no time to move it. We are moving it partly as a probing amendment because we have had some experience of the Government by now and we know the kind of action they take towards our amendments. We always like to be agreeably surprised, however, and surely the Government should be prepared to tell us, if not upon the face of the Bill—though I do not see why not—what the qualities of the commissioner and his qualifications are to be. He is to carry out a very large number of functions, all of which are set out in Schedule 1 and Clause 20. He will have the power to foster litigation against trade unions, if that is what he wants to do. He could encourage out of court settlements by conciliation between the parties if that was his way of thinking. He could be liked by the trade union movement. He could be suffered by the trade union movement or he could be detested.
Surely, if the Government are serious (as they say they are from time to time) about wanting, in order to keep trade unions clean and straight but not to suffocate them at one and the same time and not to increase the already significant hostility between themselves and trade unions, to set up bodies such as CROTUM, they should be very sensitive about the man or woman whom they appoint. Surely, some experience of trade union affairs would help. I am not saying that there must be a retired general secretary, although I do not see why there should not be a retired general secretary of the Trades Union Congress in this House. I am not saying that one must obtain people who have had a lifetime of experience in the trade union movement. There are many respected middle-of-the-road people but one hesitates to mention their names because that may finish them. There are people such as Sir Pat Lowry and Sir John Wood. There are all kinds of people in the middle of industry who have had great experience on both sides in dealing with trade unions. If such people, or others like them, were to be appointed as the commissioner, that would be accepted, I believe, by the trade union movement. At least there would be a chance that the appointment would come to be accepted by the movement.
In putting forward our amendment we ask: why should the commissioner not be a person suitably qualified in, and with experience of, trade union affairs? We are saying, "Please tell us what kind of person you would like the commissioner to be and why you cannot put on the face of the Bill something more definite about his qualities, qualifications and experience." I beg to move.
10.30 p.m.
Lord Trefgarne: My Lords, the arrangements for the appointment to be made by the Secretary of State are entirely consistent with the normal practice for making appointments to non-departmental public bodies. The appointment can be expected to proceed in the usual way and to involve consultation between the Secretary of State and his colleagues. The public

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appointments unit of the Cabinet Office will be involved, as set out in the published Cabinet Office/Treasury Guide to Departments on Non-Departmental Public Bodies. No doubt the Department of Employment will also be consulting its own records to see whether suitable candidates for ministerial consideration can be identified.
The Secretary of State will clearly want to appoint someone who can properly carry out the functions and exercise the powers of the office. Such a person might or might not have experience of trade union affairs.
It is difficult to know what being "qualified in trade union affairs" would actually mean. I doubt whether it would really be so valuable a guideline to help the Secretary of State identify the best candidate that every other consideration should be subordinated to it, as the amendment proposes.
Noble Lords should have confidence in the Secretary of State's ability to identify the right qualities and experience that a person appointed as commissioner will need. The amendment would not help ensure that the right appointment was made. Therefore, I hope that the noble Lord will not press it.
Lord McCarthy: My Lords, we are not surprised. The noble Lord says that it is consistent with normal practice. In other words, "You will never know who you will get until we find one of us and then you get him". We have never said (why should we?) that we are ruling out other considerations. Of course we are not. We are saying that one of the considerations might be experience in trade union affairs as against ignorance of trade union affairs. The Minister is suggesting that ignorance is perhaps a better way than knowledge. He then says, "Although we prefer ignorance to knowledge, and although we cannot tell you anything about it, you ought to have confidence in us". That is not possible; but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 [Assistance by the Commissioner]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 30:
Page 24, line 21, after ("union") insert ("or any other person against whom a member of a trade union claims by virtue of his rights in connection with his membership of, or activities relating to, that union").
The noble Lord said: My Lords, this amendment deals with the functions of the commissioner. Although it is not a mandatory addition to his task, it would add to subsection (7) on page 24 the possibility of a slight extension to carry out the job which the Government have always described as being his job and his task—that is, the protection of trade union members in respect of their trade union rights. If one looks at subsection (7) on page 24 one finds that broadly speaking the matters with which the commissioner can help the member may be described as proceedings under this Act or proceedings in relation to a 1984 Act union election or political fund matter or,
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"such other proceedings … against a trade union, an official of a trade union or the trustees … of a trade union as may be specified in an order made by the Secretary of State".
Our amendment would add to that:
"other persons against whom a member of a trade union claims by virtue of his rights in connection with his membership of or activities relating to that union".
The question arises: who are those other persons? They could be two or three different types of persons, but I shall concentrate on one; namely, the member's employer. The amendment is quite clearly formulated in order that the commissioner should be able to protect a union member in respect of his union rights against all persons, including his employer. Those rights are in the 1978 Act for the most part and, broadly speaking, protect his right to be a member of an independent trade union, to take part in its activities and not to be dismissed in respect of union membership matters. That is a very broad description, but I am sure that noble Lords will know these sections.
As I understand it, although this matter has only been raised very obliquely, it was said in another place that this extension does not belong to the Bill because the Bill is concerned with the union member's rights as against his union, its officials or trustees. That argument cannot now be put forward because in Schedule 3 the Bill now contains a number of provisions which amend the law relating to a union member's rights against his employer. I shall give only one example. On page 39 of the Bill as printed after Committee, in Schedule 3, paragraph 2(7) contains an amendment of Section 23 of the 1978 Act which deals with the union member's right as against his employer to take part in activities and be a member of an independent trade union, and also amendments of Section 58(13) and (14), which are the dismissal sections which protect trade union activities against the employer.
I apprehend that the Government have taken the view that those and other less important but nevertheless parallel amendments are in the Long Title of the Bill because—as I understand it, some people doubted it—the Government cannot make such a mistake. The Long Title appears to cover things done for the purpose of enforcing membership of a trade union. My advice is that the Government are relying on that in enshrining those provisions in the schedule. Therefore, it is quite impossible for the Government to say that this Bill cannot protect trade union members against their employer in respect of trade union membership and activities.
Such a case would be scarcely less than misrepresentation of the Government's own Bill because of the nature of Schedule 3. Now that the matter has been clarified, it seems to us that there is no argument against the proposition that if we are to have a commissioner and if his job is to be, as the long clauses and schedules set out, to protect a worker against his or her union in respect of the membership rights in that union and under the Bill, there is absolutely no reason whatever for the commissioner not to be able to assist in proceedings which that union member wishes to take in his capacity as employee but in respect of trade union rights against the employer. To deny the commissioner the capacity

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to offer any assistance whatever in such a case would be to render the Government open to the charge of the most biased legislation that has ever been put on the statute book. The Government could answer that charge if they could say that the Bill does not deal with employers and workers in their trade union rights, but they cannot say that now. Therefore, I am sure that they will accept the amendment. I beg to move.
The Earl of Dundee: My Lords, the purpose of the commissioner is to provide assistance without which union members might be unable to take certain proceedings against their union, its officials or trustees. This redresses the disadvantage they might otherwise face against the superior resources and facilities available to the union.
The amendment would only be necessary if there was any prospect of bringing within scope of the commissioner's assistance proceedings taken by union members against some party other than their union. The Government have no such intention.
The provisions concerning the commissioner are appropriate for his role as the Government conceive it. The amendment implies that the commissioner's assistance might be made available in connection with proceedings other than those against the parties currently included in subsection (7)(e). That would be simply misleading and wrong.
The noble Lord, Lord Wedderburn, referred to the need for union members to have rights against their employers, and that is absolutely correct. The union member also needs to avail himself of some assistance in any proceedings that he may wish to take against the employer. However, there is already in existence the industrial tribunal system which is available to union members complaining about employers' actions in breach of Sections 23, 27, 28 or 58 of the 1978 Act. Union members can seek advice from various sources and might use the legal aid green form scheme to help prepare their cases; indeed the union might provide—
Lord Wedderburn of Charlton: My Lords, will the noble Earl permit me to intervene? Perhaps I was inattentive, but did he say that a union member, as a worker in an industrial tribunal against his employer, could obtain legal aid?
The Earl of Dundee: No, my Lords, I said that a union member could seek advice from various sources. He could use the legal aid green form scheme to help prepare his case. Indeed, his union might well provide even more assistance.
I certainly could have sympathy with the case put forward by the noble Lord if there were not already a system of redress for the union member against his employer. Be that as it may, I would have sympathy with what the noble Lord puts forward if the role of the commissioner would not be a conflicting consideration and were to give scope for redress against the employer and at the same time be a means with which the union member could take up his union complaints.
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Perhaps it would be useful to remind the noble Lord about the nature of proceedings in scope of assistance as far as the commissioner is concerned. The proceedings in scope of commissioner's assistance are initially to be those which concern complaints which would at first instance be heard in the High Court. They are not generally proceedings taken by individuals seeking personal redress, which would normally take the form of monetary compensation. Here we perhaps have the distinction between what the noble Lord has in mind when he rightly considers the need for having a proper system of redress against employers which is to do with monetary compensation and the other matter as I have just outlined it.
Subsections (7)(e) and (8) give the necessary flexibility to extend the functions and role of the commissioner should this be justified by experience or subsequent development. Once the commissioner is appointed, and his office is functioning, it may become apparent that additional proceedings—subject to parliamentary scrutiny by your Lordships and in another place—ought to be brought into the scope of his assistance. But the generic nature of the proceedings for which that assistance is available must be preserved.
10.45 p.m.
Lord Wedderburn of Charlton: My Lords, I suspect that the Minister has more sympathy than his brief allows him, because the unfairness is now patent. There is no legal aid for the worker who goes to the industrial tribunal to enforce his trade union rights against his employer. The legal advice scheme produces almost nothing. I am glad if the Government suggest encouraging workers to join unions and so protect themselves with support before industrial tribunals. That is a very good reason. However, the worker may not be a member of a union. In any case, in none of those situations is he going to get the great support forthcoming from the commissioner. The commissioner is going to pay out a great deal of money. Where does the worker, who has been wronged in his trade union rights, get any parallel process or redress? It is a biased clause.
I am surprised that the Minister said there might be an extension into the sort of area I was suggesting. I do not read Clause 20 as allowing the Secretary of State to make an order by statutory instrument to bring in the employer as a defendant. The idea has been put that the situation against the employer is different. Here, the union member may sue the union in the High Court and not in a tribunal. This will often be true. Plenty of actions are brought in the county court or the High Court, according to the amount involved, by ordinary workers on a contract of employment. There is no distinction at all.
The fact is that the Government insist that there will be lots and lots of money for union members who sue their union. But there is not going to be parallel extension of support even for workers who are dismissed or penalised in regard to their trade union rights at the place of work. I put it no more generally than that; but there is the parallel. They are not going to get any financial support under this measure. They are going to be left without legal aid; they are going to be left in a position where, unless they have a

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union, they will be in great difficulty. The moral is clear. Perhaps one consequence of the Bill, which we shall all like, will be a great extension and encouragement of trade union membership. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 [Provision supplemental to section 20]:
Lord Trefgarne Lord Trefgarne moved Amendment No. 31.
Page 24, line 38 at end insert—
("(1A) Where the Commissioner provides assistance under section 20 above in relation to any proceedings, it shall be his duty to do so on such terms, or to make such other arrangements, as will secure that any person against whom those proceedings have been or are commenced is informed that assistance has been or is being provided by the Commissioner in relation to the proceedings.").
The noble Lord said: My Lords, this amendment will place a duty on the commissioner, where he provides assistance in relation to proceedings, to do so on terms or arrangements which will secure that any person against whom those proceedings have been or are commenced is informed of that assistance. The commissioner could fulfil that duty by requiring the assisted person to make such notification, or he could choose to be responsible for it himself.
The amendment fulfils a commitment given by the Government in the Committee stage of the Bill in another place. My honourable friend Mr. Nicholls promised the Committee that the Government would come forward with an amendment so that when a union knows that it is being sued by a person assisted by the commissioner in those proceedings, it will know that such assistance has been provided. Formal notification of the commissioner's assistance will give the union member added reassurance.
The new duty should reassure those against whom proceedings may be brought with the commissioner's assistance that they will be made aware of that assistance. I hope that such knowledge will be helpful to them and I commend the amendment to your Lordships. I beg to move.
Lord Wedderburn of Charlton: My Lords, we thank the Minister for this amendment which we think is helpful. We have one question. It arose in debates in another place in respect of which Mr. Nicholls agreed to take the matter up.
The amendment requires the commissioner to notify the other party when it is a person against whom proceedings have been or are commenced. In the normal way of thinking about legal actions, that might be quite satisfactory. In the context of actions under this Bill (and indeed in other ways) where the commissioner may be supporting the union member, and in the context of the debate in which Mr. Nicholls made the point, the remedy sought may be by an interlocutory injunction. The interlocutory proceedings may give the defendant union very short notice. It need be no more than two days normally; it is sometimes a few hours. Sometimes proceedings are begun ex parte. Indeed, proceedings ex parte are quite common.
Would it not be possible—and I do not ask for a great widening—to formulate a slight widening that would require the commissioner to inform the
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proposed defendant that proceedings are about to be commenced or have been commenced? If the formulation is left as it is, in many interlocutory proceedings it will be meaningless. The first that the defendant union will know will be a letter before the action, if it is lucky, and more usually it will be the draft notice of motion or some even less formal communication. In fairness, if the Government appoint a reasonable commissioner, I imagine that he will do this anyway. I do not think that in the injunction situation he would want to be in a position of merely being obliged to inform the union after everything had started, which would be pointless. Perhaps the Minister could consider a slight widening.
Lord Trefgarne: My Lords, I am happy to look into the question raised by the noble Lord. Perhaps I may write to him between now and the next stage of the Bill.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 32:
Page 24, line 38, at end insert—
("(1B) In every case where assistance provided by the Commissioner under section 20 above extends to assistance with respect to the conduct of any proceedings to which that section applies, that assistance shall include an agreement under which the Commissioner is required, subject only to such exceptions as may have been contained in the notification under subsection (2) of that section of the Commissioner's decision on the application, to indemnify the applicant for so much of any liability of the applicant to pay any amount in respect of costs or expenses to any other person as arises by virtue of any judgment or order of the court in the proceedings in relation to which the assistance is provided.").
The noble Lord said: My Lords, the amendment ensures that an assisted person will be sure that if costs or expenses are awarded against him by the court in respect of proceedings for which he is being assisted by the commissioner, he himself will not be out of pocket as a result of that award.
It was always clear that the commissioner had the power to give an assisted applicant an assurance that he would provide the money necessary to pay any such award. It is useful to avoid any doubt that such an assurance is intended to be an invariable part of any grant of assistance by the commissioner which extends to the conduct of proceedings. The amendment is entirely consistent with the purpose of the commissioner and his powers in respect of assistance set out in Section 20. I hope that your Lordships will agree to it. I beg to move.
Lord Wedderburn of Charlton: My Lords, we can understand that the amendment is in line with the provisions of Clause 20 and indeed the structure of the clauses concerning the commissioner. Does the amendment not disclose once again how unfair it is that the commissioner can support with this indemnification? Is it really right that he should not be able to support the applicant in respect of an action on his trade union rights against other persons? I do not expect the Minister to give any assurance on this. As I have said, we understand the amendment and we do not oppose it. I take this opportunity to ask the Minister to ponder on the issue, in respect of which the Government will be seen to be biased.
Lord Trefgarne: What issue?
Lord Wedderburn of Charlton: My Lords, the issue of extending the commissioner's role to assist a worker to defend his trade union rights not only against the union but against the employer does not arise on this amendment, but it is highlighted because of the amendment.
Lord Trefgarne: My Lords, I am always willing to ponder anything that the noble Lord says. I cannot say there is any likelihood that there will be a change in the Government's position on the amendment, but I am glad to hear that the noble Lord welcomes the amendment.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 33:
Page 25, line 11, at end insert—
("(3A) In this section "the applicant", in relation to any assistance under section 20 above, means the individual on whose application under that section that assistance is provided.").
The noble Lord said: My Lords, this amendment adds a new subsection to Clause 21 which sets out the meaning to be applied to references to "the applicant" in subsections (2), (3) and new subsection (1B). The applicant is to mean the individual on whose application under Section 20 the commissioner's assistance was provided.
It was never the Government's intention that any other definition should apply to the term in the clause. However, without having the provision in the new subsection (3A) it is possible that a different interpretation may have been applied. The amendment ensures that this cannot happen. I hope that your Lordships will agree to it. I beg to move.
On Question, amendment agreed to.
Clause 22 [Procedure before the Certification Officer]:
The Earl of Dundee The Earl of Dundee moved Amendment No. 34:
Page 25, line 16, at end insert ("; and, without prejudice to the generality of the power conferred by this subsection, the provision made by the Certification Officer in exercise of that power shall include such provision as he considers appropriate for restricting the circumstances in which the identity of an individual who has made, or is proposing to make, any such application or complaint is disclosed to any person.").
The noble Earl said: My Lords, with your Lordships' leave, I shall also speak to Amendment No. 35 in the name of the noble Lord, Lord Wyatt of Weeford.
As I said when we discussed an identical amendment at Committee stage the concern underlying the amendment is understandable. Union members should certainly not be put off making complaints about breach of statutory duty by their union and taking them up with the certification officer because they fear the consequences for themselves of doing so. This understanding is reflected in government Amendment No. 34 tabled to meet the noble Lord's intent.
In addition to this government amendment, Clause 3 of the Bill can be expected to help, since it has the effect that union discipline imposed because of any
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assertions made by a member in taking a complaint to the certification officer about his union is to be unjustifiable discipline. If a member faces some other kind of intimidation because it is known he has made such a complaint, that may be a matter for the criminal law.
The amendment of the noble Lord, Lord Wyatt, is not compatible with the present enforcement system. Part I of the 1984 Act gives rights to persons who are members of the union concerned and were members at the time of the breach complained of. This preserves the important principle, consistently followed in the Government's reform of industrial relations and trade union law since 1979, that enforcement is left to those affected by an unlawful act of a trade union. Under the law, the union must ultimately be entitled to challenge the locus standi of the complainant. It would not be enough for the certification officer to be satisfied that a particular complainant was eligible to bring the complaint concerned.
The government amendment closely reflects the concern behind, and the intent of, the noble Lord's amendment. The amendment will allow the certification officer, in regulating his procedure, to include such provisions as he considers appropriate for restricting the circumstances in which the identity of any union member who approaches him is disclosed to any person.
The amendment does not restrict the certification officer in the same way as the noble Lord's amendment, and will permit the certification officer to continue to fulfil his functions with a workable and self-regulated method of restricting the circumstance in which a complainant's or an applicant's identity is disclosed to any person. The amendment has the added advantage of not applying solely to complaints brought under Section 5 of the 1984 Act. It will also apply to other complaints or applications made to the certification officer.
I hope that, having had time to study the government amendment and to listen to what I have said on the subject, the noble Lord will feel able not to press his amendment. I beg to move.
11 p.m.
Lord Wyatt of Weeford: My Lords, I welcome the Government's Amendment No. 34 because it provides for just about all the requirements set down in the amendment tabled by the noble Baroness, Lady Blatch, and myself. It will be a great encouragement to many people who might be afraid of victimisation if they are exposed as having complained against their union—and they may well be justified in that worry.
I understand that it is not possible in all cases for the certification officer to keep the anonymity of the complainant if it is ad hominem or there is a particular incident involved. In such circumstances he would have to say to the complainant, "If you wish to proceed in this case, I am afraid your identity will have to be disclosed; otherwise you had better drop it". However, having said that, I think that the amendment goes a very long way to encourage people who would otherwise be frightened to bring forward a perfectly legitimate complaint.
Baroness Turner of Camden: My Lords, on our side we cannot see that this is a just, necessary or reasonable amendment. There is no evidence to show that the individual member who has had recourse in the past to the certification officer has ever had to fear victimisation from within his union. I had some experience of such activities in my union when I was responsible for the operation of its rules. We had instances where individual members from time to time made complaints to the certification officer. Indeed, I can remember one occasion when an individual made a whole series of complaints which I was responsible for dealing with on behalf of the union. On that occasion all but one of the complaints were dismissed, but the member concerned never complained about victimisation simply because none ever took place. Indeed, that member turned up on several occasions as a delegate to the union's annual conference and carried on exactly in a normal way with no harassment or victimisation from the leadership of the union. I think that this has proved to be the situation in many unions.
Victimisation has often been mentioned by the noble Lord, Lord Wyatt of Weeford, and has also been referred to from the Government Benches, but no evidence has been advanced to support such claims. Therefore we do not think that this provision is in any way necessary. In any event, as the Minister said when introducing the amendment, there is already provision under Clause 3. Therefore I ask why it is necessary to gild the lily, so to speak, and introduce a further provision under Clause 22.
We believe that individuals making charges should be prepared to be identified. If they are not identified, it gives the union against which the allegations are made no opportunity of confounding the allegations or of properly investigating them. I believe that this is all part of the philosophy of weighting everything heavily against the union so that it has less chance of defending even trivial complaints, whereas the individual dissident has every opportunity to do so, ably supported by a public official and public funds.
Obviously at this late hour there will not be a Division on the amendment, but we want to put on record that we regard this provision as totally unnecessary and quite without foundation. Furthermore we can see no evidence of any victimisation that would justify the introduction of the clause.
On Question, amendment agreed to.
[Amendment No. 35 not moved.]
Lord Wyatt of Weeford Lord Wyatt of Weeford moved Amendment No. 36:
Page 25, line 31, at end insert—
("(5) Without prejudice to the right of any member of a trade union to apply to the court for a declaration under section 5 of the 1984 Act, the Certification Officer shall have the power to apply to the court for such a declaration as if he were a member of the trade union under section 5 of the said Act; and he shall be under a duty to make such an application where he is satisfied that the union has failed to comply, wholly or in part, with the terms of a declaration made by himself.").
The noble Lord said: My Lords, as I explained in Committee, the amendment is designed to prevent an ordinary member of a union living a long way from
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London—an ordinary person who is not versed in lawyer's ways—from having to go through a double process in relation to his case: first, having to take his case to the certification officer and there being subjected to interrogation and examination by union officials or whoever is brought along to ask him questions; and, secondly, having got the declaration he sought from the certification officer, to prevent him from having to go again to another body, a court, in order to have such a declaration enforced if it has been ignored by the union concerned.
The amendment is merely designed to put the duty of going to the court with that declaration on to the certification officer instead of making the rather simple, humble union member go through the legal process. It would also save a great deal of public money because on that occasion he would not need the services of the commissioner to help him in the court. I beg to move.
Lord Wedderburn of Charlton: My Lords, we take an attitude on this type of amendment which I think we explained in Committee. The certification officer fulfils a number of useful roles not merely with regard to the running of trade union affairs but in the running of the industrial relations system. It is wrong to attempt to make the certification officer into some kind of law enforcement officer as well as fulfilling his other functions, which are already a mixed bag. He has administrative functions and quasi-judicial functions. Despite all the problems of the legislation of the past few years, he has retained a remarkable degree of confidence and maintained a smooth relationship with the trade union movement and with individual members.
The noble Lord, Lord Wyatt, spoke about a member coming before the certification officer and being subjected to interrogation. My experience is that proceedings before the certification officer are not of that character. It would spoil the work that the certification officer does and put him in a new prosecuting role, which I do not think that he would welcome and which would generally muddy the waters and add yet another force against trade unions. At the moment he helps in the administration and in industrial relations. It is a bad idea and we oppose it.
The Earl of Dundee: My Lords, I appreciate the concern underlying the proposals put forward by the noble Lord, Lord Wyatt of Weeford, but the arguments which I used a moment ago against a self-starting commissioner for the rights of trade union members are also applicable to the proposed extension of the powers of the certification officer.
The legislation guarantees the rights of ordinary union members and candidates in union elections. It must be for those members and candidates themselves—not some third party—to decide when and how to use those rights. The Government's view has always been that it is far better for enforcement of election and register duties to be in the hands of those affected by a union's unlawful action, such as union members themselves, and not those of some external, government-sponsored institution.

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Government should not risk the benefits of legislation by making its operation dependent on action by a government-sponsored supervisory agency, or even by associating it with action by such an agency. We should not allow union leaders to present their unions as victims of unwarranted state interference in their affairs. Also the experience with intervention by ACAS in context of union recognition shows the difficulty of imposing duties on state agencies in respect of inquiries into industrial relations matters.
I want to reassure the noble Lord, Lord Wyatt of Weeford, that the position of union members is not all that weak. Complaint to the certification officer is simple, cheap and informal. It is an alternative to, not a substitute for, complaint directly to the High Court. It has been used, and used effectively, in many cases. Experience indicates that there are certainly union members who are neither timid nor intimidated when it comes to making applications to the certification officer.
In addition, members will be protected against union discipline imposed because they have approached the certification officer (or the commissioner) in connection with a complaint. In future, if a union does not take remedial steps to correct and avoid the breach of duty on which the certification officer has made a declaration, the union will know that any member who wishes to apply to the High Court is likely to be able to get the commissioner's assistance for such proceedings. In those circumstances union members would not be handicapped by lack of resources.
The Bill enables a scheme to be made enabling union members involved in attending a hearing before the certification officer to be compensated for travel, loss of earnings and expenses related to attendance. This may make it easier for union members to devote time to proper pursuit of applications to the certification officer.
However, I think that the proposals would cause real difficulties for the certification officer. He is not—and has never been intended to be—a trade union policeman. He is not equipped to undertake the sort of investigatory and inquisitorial role that the proposals would require. The noble Lord, Lord Wedderburn, has already made this point. For the proper performance of his functions, such as determining the independence of trade unions, maintaining the statutory list of trade unions, receipt of accounting statements, giving advice on union mergers etc., the certification officer needs union co-operation and a reputation for impartiality. His role under the amendment would force him to be partisan. As this would put his reputation for impartiality at risk, it might even lead to union boycott of the certification officer.
The certification officer has a number of roles in which he acts in a judicial capacity. But in no case does he act as a prosecutor by taking unions to court, or have the power to make complaints which statute provides for union members. There is simply no proven need for such contentious and novel arrangements, nor reasonable expectation that need
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for them is likely to arise in the future. An analogy can perhaps be drawn with the High Court. If a defendant breaks an order of the court, and thus puts himself in contempt of court, the court is powerless to initiate further proceedings itself. It is for the plaintiff to approach the court and instigate contempt proceedings. The court cannot proceed of its own volition, and it would be inappropriate for the certification officer to do this.
With those general remarks and those few varied reasons, I hope that the noble Lord, Lord Wyatt of Weeford, will not press his amendment.
Lord McCarthy: My Lords, before the noble Lord sits down, would he not agree that the extremely useful role of the commissioner which he has outlined so well digs away at the case for the commissioner? The fact is that the certification officer works extremely well and he dismisses the great majority of complaints that come against him. Yet when he finds against trade unions, they invariably carry out everything he suggests. If things are so well run by the certification officer, does that not indicate how little we need the commissioner?
Lord Wyatt of Weeford: My Lords, to answer the point just made by the noble Lord, Lord McCarthy, it is not true that the unions have always complied with the certification officer's declaration. In two cases at least, NALGO and the TASS union, which has now merged with ASTMS, refused to comply with the certification officer's declaration. Nobody could be found brave enough to go on his own account to the court to have that declaration implemented. Although NALGO has now put itself in order in these matters, TASS did not have time to do so before it was merged. I hope it will be a better behaved union in future, in its new guise. Nevertheless, it is not true that all declarations made by the certification officer are carried out by the unions concerned.
Baroness Turner of Camden: My Lords, will the noble Lord give way? The only example he has quoted so far is that of TASS, and he has just agreed that TASS anyhow did not have time to put the matter right before it merged with somebody else.
Lord Wyatt of Weeford: My Lords, on the contrary, it had ample time; it was two years ago. It has run out of time because it does not exist any more. If I had been a member of TASS, run by communists who had never stood for any sort of election under a vote-free ballot, I myself should have been frightened to go to court.
Baroness Turner of Camden: My Lords, I ask the noble Lord again: is he not himself admitting that there has been no attempt to challenge the position from within TASS? Is that not right?
Lord Wyatt of Weeford: My Lords, I apologise. I did not quite hear what the noble Baroness said.
Baroness Turner of Camden: My Lords, I repeat: is it not true that there has been no attempt by any member of TASS to challenge what has happened and that the certification officer has not proceeded any further against TASS?
Lord Wyatt of Weeford: My Lords, no. The action of TASS, or the failure of TASS to hold proper elections under the 1984 Act, was challenged by a member of TASS, or more than one. The certification officer issued a declaration that TASS had not complied with the 1984 Act and should do so. Thereafter there was nobody brave enough to go to the court to get that declaration implemented. I can understand why in the circumstances of that particular union. However I hope that in its new life under the wings of the noble Baroness who has just spoken it will be a reformed character.
But nevertheless I think there is still a difficulty in ordinary people being asked to go through two processes and not just one. It is in fact a piece of evidence which the court must accept—that the declaration has been made against the union and the union has not complied with it.
I am not asking the certification officer to be a prosecuting officer but a postman. He should take his declaration down and say, "Look, I have issued this declaration. The union has had a reasonable time in which to comply with it. It has not done so. We shall now issue an order that it has to".
That would carry more force from a court than it would from a certification officer. However I can see that the Front Benches are both in agreement, which must clearly mean that they are both wrong, as they were on Amendment No. 1 this afternoon, which was carried only by the collaboration of the two Front Benches. I dare say that they might manage the same again if I pressed this matter to a Division. So with your Lordships' permission I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 [Interlocutory and interim orders]:
11.15 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 37:
Page 25, line 39, at end insert—
("(3) On any such application, section 17 of the 1974 Act shall be applied—

(a) with the addition at the end of subsection (1) of the words "and an affidavit shall be provided to the court at the hearing setting out what those steps were"; and

(b) with the words "not grant the injunction if that party appears likely to succeed" substituted in subsection (2) for the words "have regard to the likelihood of that party's succeeding".").

The noble Lord said: My Lords, this amendment concerns Clause 23. It is remarkable that Clause 23 is in the Bill. It might be thought that applications to the High Court that arose under this legislation would give rise in any case to the usual interlocutory relief or, as the much more sensible Scottish nomenclature has it, "interim orders".
This amendment is moved within the compass of the Bill; that is to say, it is applied to the applications to which the provision applies. We would like to
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move amendments to the jurisdiction on interlocutory injunctions more widely, but we have done so only within the compass of the Bill.
Although the hour is late, in my opinion this is the most important clause in the Bill. Labour law in operation in the courts—this is a Bill which means far more work for the courts, as well as for the industrial tribunals under Clause 3—is the law of the interlocutory injunction. That is not about most of the things that we have been discussing either in Committee or on Report. In the interlocutory injunction the plaintiff does not have to prove his case. The plaintiff, especially the plaintiff against the union—I say that advisedly and I shall come back to it in a moment—has to show since the decision in American Cyanamid v Ethicon Ltd. 1975 in Lord Diplock's famous phrase:
"that there is a serious question to be tried".
After that it is the function of the court to apply what is usually known among lawyers with another blindingly inconvenient phrase as "the balance of convenience".
Of course in labour cases the balance of convenience works out in a very strange way. When the employer is the plaintiff it means that the damage to the employer—or the alleged damage, because it is nearly always in the future—is something that the court can understand. Therefore the restoration of the status quo is the avoidance not of the position before the proceedings were begun, because usually there is industrial action then, but before the industrial action before the proceedings were begun in order to avoid prospective damage to the employer. The union's alleged damage—and this may arise in an action brought by a member as well—is very often that it will lose the opportunity, as Lord Diplock once put it in a judgment which encompassed a number of these points,
"to strike while the iron is hot".
It is not surprising that judges find it very difficult to give precedence to the industrial opportunities of workers organised in unions as against the allegations of the very material damage which some employers can put forward. The procedures of the interlocutory injunction in labour injunction cases are the most unfair procedures in this country. They are unfair not merely because of the way in which the balance of convenience and the burden of proof operate; they are unfair because the plaintiff is frequently not required to give any notice at all to the union. Two days' notice is supposed to be given. Everyone knows that in a case of urgency it may not be. What is a judge to do when a plaintiff comes along and says: "This is urgent. I must have my injunction at a moment's notice"? Such matters are frequently heard at a moment's notice. The plaintiff has been able to work up his case for some time—that will apply to members as well as employers in the structure created by the Bill—and the union has a very short time.
That is exacerbated by the fact that the proof, such as it is, is not accompanied by normal cross-examination. All the evidence is on affidavit; it is therefore full of hearsay evidence. If one looks at the White Book on the rules of the Supreme Court, one

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will find an amusing explanation for that. It is said that the origins of second-hand or hearsay evidence ought to be given but usually are not.
I have touched upon the headings of the unfairness. The problem is not confined to this country. All the common law countries have experience of it. The United States, Australia and Canada know about the problem and have debates about it. Some countries may ban interlocutory injunctions, as the United States did at one time.
Worse than all that is the fact that plaintiffs can obtain labour injunctions against union defendants ex parte. They do so regularly. That is why this is the most important clause in the Bill. Despite Section 17 of the 1974 Act, which says that notice should be given, what is a judge to do in such cases? I do not criticise the judiciary. In a case in 1987, in an industrial dispute which had gone on for two years, where the plaintiffs, who were third parties to the dispute, alleged that they were entitled to a remedy because strike action had been begun after two ballots, leading counsel, eventually and without notice to the union but acting properly, rang up the judge on a Sunday and got an ex parte injunction over the telephone. That was done without notice to the union, although information was given to its solicitors afterwards on their answering machine. Perhaps that is a rather stark or shocking case. But no one who acts for trade unions is very surprised. It is not out of the ordinary.
That is the reality of labour law in operation. We have put down the amendments to ensure that where people ask for ex parte injunctions—we can only say this about proceedings under the Bill; we say it more generally when we can—there must be an affidavit stating that the plaintiffs have at least tried to give notice. It is not a lot to ask. Also, we say that, where there is argument, as there was in the case of the telephone injunction, there must be a rule that some proof of the matter should be made beyond the mere fact that there is a serious point to be tried. Perhaps I may complete the long story of the telephone injunction. Two-and-a-half weeks after the injunction was granted and after full argument, the judge who heard the case held that the plaintiffs had no case at all—not even a point that could be argued. During that time, there had been an injunction against a union which had done nothing wrong.
I do not expect the Government to accept the amendments. But I hope that the Minister will say that he understands that there is a problem. In the rough and tumble of the place where the Bill is going to be enforced, let the Minister believe that the Bill is entirely just and that its justice will not be muddied by procedures that are unfair. That is the thought that the amendments are meant to bring home to him. I beg to move.
Lord Renton: My Lords, we go into a vast amount of unnecessary detail in our statutes. I suggest that we should be doing so if we accepted this amendment. Matters such as when affidavits should be supplied are matters proper for rules of court made by the appropriate committee and approved by the Lord
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Chancellor. If I may say so, I think that this is not an appropriate place for introducing matters of such a kind.
The Earl of Dundee: My Lords, Section 17 of the 1974 Act has no relevance in the context of the provisions covered by Clause 23. Section 17 is applicable only where a union has a trade dispute defence. It will be no defence to applications under Clauses 1, 6, 9 or 15 of the Bill or Section 5 of the 1984 Act for the union to claim that it acted in contemplation or furtherance of a trade dispute.
The Government believe that the court needs the power to grant such interlocutory relief—the noble Lord, Lord Wedderburn, has referred to the fact that in Scotland there is a much better term, the interim order—as it considers appropriate pending full trial of the action and to grant such relief on an ex parte basis where that is appropriate.
The intention behind the amendment would be contrary to the protection of the interests of trade union members. In an ideal situation a party should of course be given notice of any interlocutory proceedings but it is a fact, recognized by the courts in giving ex parte injunctions, that there are cases which justify prompt action where the attempt to involve the party against whom relief is sought would cause unacceptable delay. It would not be right to remove from union members all possibility of obtaining a quick response from the courts in an urgent case. That is what the amendment would do. Section 17(1) makes a limited exception to that proposition where the party against whom relief is sought would be likely to claim a trade dispute defence. However, there is simply no case for complicating the process of application or the proceedings of the court in dealing with an application under the provisions covered by the clause.
What is the basis for awarding ex parte injunctions? In deciding whether to award interlocutory relief, the courts weigh the strength of the case before them and the balance of convenience between the two parties concerned, as the noble Lord, Lord Wedderburn, has just reminded us. The noble Lord also led us to believe that the process is an unfair one. It is quite possible that in an action heard on an ex parte basis the court would decide that the applicant had not made a sufficient case for it to issue an injunction against the union. There is no need to impose, or justification for imposing, any special requirements in terms of notifying the union of an intention to apply to the court, or of an application to the court. There is a great need for fairness. The Government have faith in the ability of the courts to do their job properly, even if the terms of this amendment seem to cast doubt on that ability.
While I do not expect that I have given much reassurance to the noble Lord, Lord Wedderburn, perhaps I have explained the government view on this matter.
Lord Wedderburn of Charlton: My Lords, we have touched on the headings of a lengthy debate. I have decided not to go into the detail to try to persuade the Minister to come for a drink sometime when, over

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about five or six hours, we could go into the details. I do not accept that reply. It will not do. Interlocutory injunctions are unfair. I accept that the drafting of this amendment needs improvement, but this is a matter to which we shall return.
I say to the noble Lord, Lord Renton, that, having identified a procedure which we believe to be unfair, I do not follow his argument that this is not the place to raise it. It is a Bill which is relevant, a problem which is relevant and this is a legislative assembly; the House seems to be the right place to raise the subject. We shall do so on another occasion, but for tonight I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11.30 p.m.
Clause 25 [Functions of the Secretary of State and of the Commission]:
The Chairman of Committees (Lord Aberdare): My Lords, if Amendment No. 38 is agreed to, I cannot call Amendment No. 39.
Lord Renton Lord Renton moved Amendment No. 38:
Page 26, line 32, leave out from ("opportunities") to end of line 33 and insert ("for employment and training that are available to women and girls or to disabled persons;").
The noble Lord said: My Lords, Amendment No. 38 is an alternative to Amendment No. 39, and I suggest that they be discussed together. Both amendments have broadly the same effect; namely, to enable arrangements to be made for the training and employment of disabled people, of whom, I remind your Lordships, the mentally handicapped are by far the largest group. At the Committee stage, the noble Baroness, Lady Seear, moved a somewhat similar amendment and was supported by all parts of the Committee. I should point out that her amendment made the arrangements mandatory. She very properly used the word "shall".
My noble friend Lord Trefgarne said at Committee stage that the amendment was not strictly necessary as the Bill and Section 2(1) of the Employment and Training Act 1973 already require arrangements to be made for the training and employment of people according to their capacities. Nevertheless, he was good enough to say that he would look again at the matter. I therefore assume that he will look favourably on one or other of these amendments.
I suggest that Amendment No. 39, although a second thought, is perhaps the shorter and clearer of the two amendments. I beg to move.
Baroness Turner of Camden: My Lords, from these Benches we shall support either of these amendments. I agree with the noble Lord, Lord Renton, that Amendment No. 39 is the better of the two. We supported the noble Baroness, Lady Seear, when she moved her amendment in Committee and we think that there is no real reason why this very sympathetic amendment should not be accepted by the Government. We hope that it will be.
Lord Trefgarne: My Lords, it is true that during the Committee stage of the Bill I undertook to look to see what we could do to put our intentions in the Bill beyond peradventure. I have examined both the amendments tabled by my noble friend Lord Renton. Unlike the noble Baroness, Lady Turner, I prefer the first one, Amendment No. 38. Indeed, I am prepared to accept Amendment No. 38 as moved by my noble friend, on the understanding that then he will not wish to move Amendment No. 39.
Lord Renton: My Lords, I feel obliged to accept that suggestion.
Baroness Seear: My Lords, as the mover of a similar amendment in Committee, I should like to thank the noble Lord for accepting this amendment.
On Question, amendment agreed to.
[Amendment No. 39 not moved.]
Lord Renton Lord Renton moved Amendment No. 40:
Page 27, line 43, leave out subsection (5).
The noble Lord said: My Lords, the effect of Amendment No. 40 would be to leave out that subsection to which it refers; namely subsection (5) of Clause 25. I need hardly remind your Lordships that the noble and learned Lord, Lord Simon of Glaisdale, with much greater force than I can command, has frequently suggested that the insertion of the words "consent of the Treasury" are quite unnecessary. In this subsection there is a slight variant: the words here are "unless the Treasury have approved" the various matters which are mentioned.
This is a matter which the noble and learned Lord has taken up quite recently with my noble friend the Lord Privy Seal, who, in a letter that I have his permission to quote, describes the gambit that we find so often in our statutes as "inveterate". I refuse to accept that as a justification for this sheer nonsense. It really is bureaucracy.
The Secretary of State is a member of the Cabinet. He has to obtain his Estimates before he can spend any money at all. That he should have to obtain the rubber stamp of a relatively minor official of the Treasury before deciding in detail how he is to spend the money voted in the Estimates—matters of detail for which he has responsibility—is sheer nonsense. I hope for the co-operation of at least one member of the Government now on the Front Bench in order to help us on this occasion to get rid of it. I beg to move.
Lord Mottistone: My Lords, I should very much like to support my noble friend. I have been raising this point at different intervals over the past 10 years or so for just the reasons that he has given.
I cannot find a subsection (3) to Clause 11 of the Bill. I have a feeling that there is need for the Government to make a correction. Perhaps they are talking about some other section which has changed since earlier amendments have taken place. Perhaps that might be looked at.
Lord Renton: My Lords, perhaps I may help my noble friend, if he will allow me. Clause 25 of this Bill is replacing Sections 2 and 3 of the 1973 Act. Therefore they are references to sections and subsections of that Act.
Lord Carr of Hadley: My Lords, I should very briefly like to support the amendment of my noble friend Lord Renton. My past career as a Minister at various levels in various departments has been punctuated by moments of fury at the Treasury trying to dictate in detail how I and my department should spend money that we have obtained in our Vote.
Baroness Turner of Camden: My Lords, we on these Benches were not quite certain what Amendment No. 40 meant until the noble Lord, Lord Renton, explained it. Having heard the explanation and the contributions of the noble Lords, Lord Mottistone and Lord Carr, we think that there is much merit in the amendment and we should like to hear that the Government have decided to accept it.
Baroness Seear: My Lords, we should also like to support anything that clips the wings of the Treasury.
Lord Trefgarne: My Lords, I rise with a sneaking sympathy for some of the observations that we have heard this evening, in particular as a Minister who in another incarnation presides over some £8,250 million of expenditure each year. I must, however, assure my noble friend Lord Renton that the obligation to have Treasury approval for payments made under this provision is simply carried over from Section 3(2) of the Employment and Training Act 1973, which Clause 25 amends, as your Lordships are aware. It is absolutely standard to have Treasury approval for departmental spending of any description.
I hope that my noble friend and others can agree that any responsible government must have central control over their spending. I should not want to seek any other arrangement. All Ministers in this Government are concerned with economy. We all share the collective desire to avoid excessive public spending and the Treasury has the duty to make sure that we do. There is nothing wrong with that.
Speaking from my experience, although the Treasury exercises a formal oversight of everything that we spend, the approval of most of the routine expenditure is delegated to the department in question. I therefore do not think that the bureaucracy that my noble friend was so fearing will happen in reality. It is only in the unusual cases that the Treasury seeks to be particularly involved. Speaking for myself, I do not find the control of the Treasury particularly onerous. Where it seeks further information or more information, it is usually for a good reason. I hope therefore that my noble friend will think that this is the right provision to have in this measure.
Lord Renton: My Lords, I should like to thank my noble friend for praising my amendment with his faint damns! However, I am grateful for the support
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that we have received including that from a most eminent noble friend who among other appointments held the office of Home Secretary. In the presence of the Chief Whip, I feel bound to say that if parliamentary time is to be saved these expressions would be best left out of our legislation, because there are those of us who are determined that this nonsense shall not continue.
I am not prepared to withdraw the amendment but I am prepared to have it negatived.
On Question, amendment negatived.
Clause 26 [Status of trainees etc.]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 41:
Page 29, line 5, after ("may") insert ("subject to subsection (1A) below").
The noble Baroness said: My Lords, I rise to speak also to Amendment No. 42. The intention of these two amendments is to ensure that the principle of equal pay as defined in the directive of the Council of Ministers of the European Community is carried through with regard to people in training who are covered by this section of the Bill.
It may well be that this is the Government's intention. However, we think that it is sufficiently important to have it written into the Bill. We already have, under Clause 25(2), arrangements to increase opportunities for women and girls. We think that is wholly admirable. The proposed amendment follows from that. We are very anxious to ensure that people covered by this clause are treated as if they were employees to the extent of their being covered by the EC directive on equal pay. We believe this to be very important.
There is already a certain amount of evidence available which would appear to indicate that as far as concerns some training schemes, including YTS, girls still tend to be directed into the traditional areas of female employment. If it is clear that the directive applies, the whole question of equal opportunity and equal pay will be emphasised. We want to ensure that this is done.
We still have a situation in this country, even after over a decade of equal pay legislation, where women receive in general about 70 per cent. of male earnings. This is entirely unsatisfactory, and we realise that simply amending the Bill in the way we propose will not alter that overnight. But it at least provides an opportunity to state again that it is our intention to move in the direction of ensuring that the directive is applied and that it should be applied to the people covered by this clause. I therefore beg to move.
Lord Trefgarne: My Lords, I think it is suggested that participants in government schemes should always fall within the scope of Directive 117 of the European Community, which is fully implemented in the United Kingdom through the Equal Pay Act 1970. The Government certainly share the concern that the provisions of the Equal Pay Act should be properly applied. As your Lordships are no doubt aware, the provisions of the Act apply only to those who are employed as defined by that Act. However, I think it is suggested that trainees on our

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programmes who are not employees should be treated as if they were. However, that is misconceived. The noble Baroness will appreciate that an order cannot alter the effect of European law. The European Directive on Equal Pay, as this directive is generally known, and Article 119 of the Treaty of Rome, which it supplements, apply to workers receiving pay from their employers.
Lord Wedderburn of Charlton: My Lords, is it not the cast that it is national law that in the vast majority of cases, including this, determines the meaning of "worker" or "employee", albeit that national law cannot change the obligations of the directive? There are many instances of that, and is not the Minister putting a case which is misguided in that respect?
Lord Trefgarne: My Lords, I think not, because although there is no doubt scope for interpretation of definitions, there is no scope for changing the fundamental thrust of the directives in question.
The European Directive on Equal Pay, as this directive is generally known, and Article 119 of the Treaty of Rome, which it supplements, apply to workers receiving pay from their employers. They cannot have been intended to apply to trainees receiving a training allowance from the state. We are offering to the unemployed, through programmes such as YTS and Employment Training, concrete opportunities to enhance their future employment prospects. As was pointed out during the debate on this clause in Committee, it would be counter-productive to insist that employers should take on these unemployed people as their own employees while they are being trained. We can only offer the unemployed this chance of training if employers are willing to help.
I hope, therefore, that the noble Baroness will accept that this amendment really undermines the principle of the training scheme that we have been discussing on other occasions as well as today and that she will not press this amendment.
11.45 p.m.
Baroness Turner of Camden: My Lords, I do not understand what the Minister means when he says that it would be counter-productive. I cannot see why it should be impossible to ensure that those in receipt of training allowances and being trained are treated in equal fashion. Is he really saying that the only way in which employers will co-operate is if they are assured that they can apply unequal treatment to employees? I do not understand what is meant. I am most dissatisfied with the Minister's response which does not come to terms with the amendment we have tabled. Nor does it meet the valid point raised by my noble friend Lord Wedderburn. In my view the Minister has not made a satisfactory response to that point. However, I shall not press the amendment at this hour of the night. I should like to put on record that these Benches consider that the Minister's reasons for not accepting the amendment are entirely unsatisfactory and very disappointing.
Baroness Seear: My Lords, perhaps I have not understood the Minister. I should like to ask—
Noble Lords: Order.
Lord Denham: My Lords, this is Report stage. It is generally accepted that when my noble friend has wound up and the proposer of the amendment has spoken, that is the end of the business.
Baroness Seear: My Lords, had the noble Baroness withdrawn the amendment?
Lord Denham: My Lords, the proposer of the amendment can speak after the Minister but no one else. The Procedure Committee has suggested that that should happen at the Report stage and I hope that the noble Baroness will agree with that.
Baroness Turner of Camden Baroness Turner of Camden: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 42 not moved.]
Clause 27 [Amendment of the Social Security Act 1975 with respect to the refusal of training etc.]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 43:
Page 30, line 2, at end insert—
("(2A) After subsection (1) there shall be inserted—
"(1A) For the purposes of paragraphs (e) and (f) of subsection (1) a person has 'good cause' where he shows that he is pursuing, or intends to take up within a reasonable time, a course of study or other similar activity which is suitable to his capabilities and aptitudes and which he is pursuing, or intends to pursue, with a view to improving his opportunity or chance of finding regular employment." ")
The noble Baroness said: My Lords, we return to the question of what is good cause. It was the subject of discussion in Committee. The intention of the amendment is to ensure that a person has good cause within the meaning of Clause 27(2)(e) and (f) if he can show that he is endeavouring to follow a course of study or similar activity suitable to his capabilities and aptitudes, and that he is doing so with a view to improving his opportunity or chance of finding regular employment.
When we moved a series of similar amendments in Committee several noble Lords pointed out that the inclusion of the word "requirements" (our original amendment contained the words "suitable to capabilities, aptitudes and requirements") could mean that the individual concerned would be able to make claims about his requirements which would not prove to be justifiable. We accepted the comments made in Committee about our amendment. We have now tabled an amendment in which the word "requirements" has been omitted. We refer simply to "capabilities and aptitudes".
We believe that as it stands the amendment should commend itself to the Government. We are after all talking about people who seriously embark upon self-improvement. It has been stated in the House on numerous occasions that generally speaking we have an under-educated and under-trained workforce. I believe that there is general agreement about that statement and a concern on all sides that the situation should be remedied. In the amendment we seek to

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help those who are intent upon helping themselves. If they are studying, training or embarking on such a course, that should constitute good cause within the meaning of the clause. I beg to move.
Lord Trefgarne: My Lords, the provisions of Section 20 of the Social Security Act 1975, as amended by Clause 27, already allow an individual to leave or to turn down a place if he has good cause or if the training place offered is not a reasonable opportunity. This amendment seeks to define the circumstances in which an individual would have good cause for turning down a training place and would not be disqualified from benefit in doing so. Circumstances envisaged by the Opposition may well be reasonable. However, it is unnecessary, even dangerous, for us to start trying to define by legislation what is meant by the term "good cause". There are too many variables, too many sets of reasonable circumstances, and by defining some we may well find that we limit the adjudicating authorities to consider only those, thereby excluding others.
If an approved training course would not help an individual get back into work or it was not suitable in his case because of his capacities, aptitudes or domestic circumstances, that individual could refuse a place on it either because he had "good cause" to do so or because the training place was not a suitable opportunity. But it is for the independent adjudicating authorities to decide what is "good cause" for an individual leaving or turning down an approved training scheme.
YTS is the only government scheme which is currently approved for the purpose of benefit sanctions. But guidance from the independent chief adjudication officer makes it clear to adjudication officers that if a young person,
"is undertaking part-time studies which would enhance his employment prospects and advance his career, prima facie he has good cause for refusing a course under the Youth Training Scheme".
We would expect similar guidance to be issued from the chief adjudication officer in the case of any other scheme being approved.
We had a very full discussion on this matter at an earlier stage of this Bill and I hope that in the light of these explanations this amendment will not be pressed.
Baroness Turner of Camden: My Lords, I listened carefully to what the Minister said. I note that he thinks that our clause would be unnecessary or dangerous. I disagree with that. I cannot see that it would be dangerous to give encouragement—because that is what this clause would do—to people to embark on self-improving courses of study or other similar activity and to try to train themselves in order to improve their opportunity of finding regular employment.
I should have thought that that was a worthy objective which everybody in this House would be inclined to support. I note what the Minister said about guidance to adjudication officers and others, and at this point in the evening I am afraid we shall have to accept that and not press the amendment.
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However, I am not at all satisfied with the reply. This was an opportunity in the House to underline our concern to ensure that we encourage people to undertake courses of study. Describing our amendment as "unnecessary" or even "dangerous" will not help in that. Nevertheless, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 34 [Short title, commencement and extent]:
Lord Rochester Lord Rochester moved Amendment No. 44:
Page 33, line 20, at end insert ("Section 17 shall not come into force before the expiry of three months after the Secretary of State has published guidance for employers and employees and their representatives explaining how the provisions of the section should operate.").
The noble Lord said: My Lords, this amendment arises out of the exchanges which took place while we were debating Clause 17, as it now is, in Committee. I remind your Lordships that this clause deals with ballots on industrial action affecting different places of work. I had hoped that it would prove possible to debate this amendment when other amendments on Clause 17 were discussed but that was not agreed and I ask your Lordships to bear with me now for a few minutes.
In Committee I said that in introducing the clause I did not think that the Government had taken sufficient account of the practical difficulties that employers and trade unions would experience, first, in explaining its content to their employees and members and, secondly, in operating it. I further suggested that it was wholly undesirable that this House should pass legislation couched in language, as in this clause, which is so obscure that it might not be intelligible to those affected by it. At this point I should say that the so-called clarification given by the noble Lord, Lord Trefgarne, has done absolutely nothing to make it clearer for me.
In Committee I asked the noble Lord whether, having regard to the complexities of the clause which he himself acknowledged, the Government at Report would bring forward an amendment which would take account of the problems raised and which would be worded in more comprehensible terms. He made it plain that the Government were unwilling to amend the Bill but he agreed to consider whether there was scope for publishing guidance on the meaning and operation of the clause. Since then I have received further intimation from the Engineering Employers Federation and the Institute of Personnel Management of the great concern felt by their members about this clause.
The IPM says that the more it looks at it, the less practical sense it seems to make. In its view the situations that it is designed to prevent are more imaginary than real. At worst they happen rarely and are unlikely to recur in the same form. It considers that it is the very variability of the balloting situation that makes legal prescription for it so unsuitable.
The grounds on which a union's balloting constituency is based may change from day to day. Whether they have to do with bargaining units or common factors they can become extremely complex. For example, in a pay negotiation there will be one

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constituency which may widen to cover, say, the subject of pensions and then change again when perhaps a shop steward is sacked. The IPM says it sees the clause as a prime example of over-regulation carried to the point of being incomprehensible.
The expert members of the committee who have given further detailed consideration to the operation of the clause since it was last discussed in this House include an industrial relations lawyer of national repute, a similarly distinguished academic professor and two representatives of large employers' associations who have the status of directors. If they cannot readily understand the clause, what chance is there of a manager, a trade union official or an individual employee doing so?
This amendment gives the noble Lord, Lord Trefgarne, the opportunity, first, to confirm that following the enactment of the Bill the Government will publish a booklet explaining clearly to employers, employees and their representatives how the provisions of the clause should operate. Thereafter the amendment proposes that a period of at least three months should elapse before Clause 17 comes into force. That is the time that the Engineering Employers Federation considers will be needed for the guidance to be assimilated by those who will have to operate the clause if it is to have any chance of proving workable. I beg to move.
Lord Carr of Hadley: My Lords, I should like to say briefly to my noble friend that this is, as he realises, an extremely complicated matter. If it is to work at all it must not get off to a muddy, unclear start. To have the short delay requested while the explanatory booklet can be percolated through to those who have to operate the clause and to give some training in what may be right and what may be wrong will help the smooth working of the Government's intentions. Not to do so would be a case of more haste, less speed.
12 midnight
Lord McCarthy: My Lords, we on this side of the House agree with what has been said so far. We have all tried on several occasions to get the Government to look again at the terms of Clause 17. As the noble Lord, Lord Rochester, said, the practical difficulties and obscurities of the clause have been pointed out not only in this House but in the other place. As the noble Lord, Lord Rochester, said, the noble Lord, Lord Trefgarne, acknowledged the complexity of the clause. So did Mr. Cope in another place, reported in Hansard on 10th February, at col. 397. Mr. Cope admitted the complexity and said that the only explanation for it was that the Government wished to avoid what he called artificial constituencies.
That has been the Government's problem. They have been so concerned to deal with the problem, as they see it, of artificial constituencies that they have produced a clause—particularly new subsection (1B)(b)(ii) and (iii)—which is quite unintelligible. The Engineering Employers' Federation says it is unintelligible, as does the Institute of Personnel Management.
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I assume that if the EEF and the IPM send me and the noble Lord, Lord Rochester, letters they also send them to the Government. The EEF in particular has raised objections and questions relating to new subsection (1B)(b)(ii) and (iii) which one cannot improve on. Those questions deserve an answer from the Government. My first question therefore is: what are the Government going to say (perhaps they have already written) to the EEF? The EEF says that it would prefer the clause to read "bargaining unit", because it believes it would be simpler. If the Government say to us that they do not want a bargaining unit for the reasons they give, I should like to know the reasons that the Government give to the Engineering Employers' Federation.
However, in the absence of the Government being prepared to have a major reconstruction of this clause (which we would like to see even at this late stage) we are left with the amendment in the name of the noble Lord, Lord Rochester, which helps us in a number of respects. Of course the guidance would not have the force of law. Unless it was a code of practice, it would not even be something which the courts could take into account in applying the clause. However, it might clarify some of the ideas that were in the mind of the Government.
We know that the Government would like to make a number of points clear. What we have been saying on this side of the House is that they are not clear on the face of the Bill. So far as I can understand it, the Government want to make a distinction between a number of things. They want to make it clear that you only need a ballot if all the members affected are at the same place of work. They want to make it clear that if all members in the same group have certain conditions in common—for example, occupational descriptions in common—they can be in one group. They want to prevent what they call artificial constituencies, whatever they are. If the Government could spell out what they think artificial constituencies are, that might help us.
It might also help if they could clarify what they think sub-paragraphs (ii) and (iii) mean. What is this factor which is a common factor but is neither a factor nor a factor in common? That is what subparagraphs (ii) and (iii) say. There is a factor which is a common factor but is neither a factor nor a factor in common, and that definition is going to keep out artificial constituencies. That reminds me of the late lamented Judy Holliday in "Born Yesterday". When asked to read a particularly difficult part of the American Constitution she looked up every word. She said:
"Even when I looked up every word, I still couldn't understand it".
You can look up every word in this clause and you cannot understand it. Why should we not have a little guidance from the Government?
Lord Trefgarne: My Lords, let me say at once that no decision has yet been made about the commencement date for any of the provisions of Part I of the Bill. However, there is no justification for any particular delay in bringing the provisions of Clause 17 into effect. The Government attach importance to the principles underlying the clause and see no reason

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why employers and union members should not be given the rights provided by the clause as soon as is possible.
The drafting of Clause 17 is necessarily detailed, but it should not be difficult for a union to comply with the provisions step by step. We have already explained in detail, both in this House and in another place, the circumstances in which separate ballots are not required. Once the union has identified the balloting constituency it will be clear whether separate ballots are required and whether an employer, or his customers or suppliers, has a right of action if such ballots are not held.
Detailed guidance on all the provisions of the Bill will be published in due course. In addition, the code of practice on pre-strike ballots, which we intend to publish under the provisions of Clause 18, will necessarily refer to the provisions of Clause 17. However, when the Bill becomes law we will be publishing and explaining the requirements of the Bill. It will be open then, as it is now, for any affected or interested party to seek advice from officials of the department if they are concerned about the way in which any of the clauses of the Bill is intended to operate. In the light of this considerable reassurance, I hope this amendment will not be pressed.
Lord Rochester: My Lords, I am not very impressed or reassured. I am disappointed, to say the least, first, at the suggestion that there should not be a period of three months in which people can have some opportunity to digest what is in this clause. I am the more disappointed when that suggestion has the support of somebody with all the commercial and industrial experience of the noble Lord, Lord Carr of Hadley, speaking also as a former Secretary of State for Employment. As I understood what the noble Lord, Lord Trefgarne, said, this clause is to be treated like any other and guidance may be given on it along with others. The amendment seeks clear guidance for employers, employees and their representatives on the meaning of the clause, given its complexity. For that reason, it should be singled out. When it comes to translating all this into action on the ground, I fear that the results may prove deplorable. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Trefgarne Lord Trefgarne moved Amendment No. 45:
Page 33, line 38, at end insert ("and (aa) so much of Part I of this Act as relates to the 1913 Act;").
The noble Lord said: My Lords, with this amendment I should like to speak to Amendment No. 46. These are technical amendments which do not alter the policy of the Bill. I beg to move.
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 46:
Page 33, line 42, at end insert ("and this Act shall have effect in Northern Ireland in relation to the 1913 Act for the purposes only of the application of that Act to such trade unions and unincorporated employers' associations as have their head or main offices outside Northern Ireland.").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Schedule 3 [Minor and consequential amendments]:
The Earl of Dundee The Earl of Dundee moved Amendment No. 47:
Page 39, line 36, at end insert—
("(3A) In section 136(5) of that Act (appeals under certain enactments to lie only to the Employment Appeal Tribunal), after the words "the Employment Act 1980" there shall be inserted the words "or section 4 or 5 of the Employment Act 1988".").
The noble Earl said: My Lords, this is a purely technical amendment. It is required to ensure that the employment appeal tribunal alone has jurisdiction to hear appeals under Clauses 4 and 5 of the Bill. I beg to move.
On Question, amendment agreed to.
The Earl of Dundee The Earl of Dundee moved Amendment No. 48:
Page 39, line 42, leave out ("In subsection (8) of section 5 of the Employment Act 1980") and insert ("In section 2 of the Employment Act 1980 (secret ballots on employers' premises)—

(a) in subsection (1), at the end there shall be inserted the words "unless the ballot is one in which every person who is entitled to vote must be given a convenient opportunity to vote by post."; and

(b) in subsection (9), at the end there shall be inserted the words "; and in this section 'post' has the same meaning as in Part I of the Trade Union Act 1984."

(2) In section 5 of that Act—

(a) in subsection (8)").

The noble Earl said: My Lords, this is the substantive amendment, and simply ensures that statutes are not inconsistent. Section 2 of the 1980 Act provides that, where an independent trade union proposes to hold a relevant ballot and requests an employer to permit his premises to be used for the purpose of giving his workers who are members of the union a convenient opportunity to vote in the ballot, the employer shall, subject to certain conditions, comply with the request so far as reasonably practicable. Both union executive election ballots and political fund review ballots qualify as "relevant" and employers could therefore be required to make their premises available for voting in such ballots. Noble Lords have, however, already agreed with the Government that Clause 14 should stand part of the Bill and that therefore executive election and political fund ballots should be held only by the fully postal method.
The substantive amendment accordingly removes a source of potential conflict between the 1980 Act and the Bill by removing any entitlement to use an employer's premises where ballots have to be held by the fully postal method. Amendment No. 49 is entirely consequential and re-orders paragraph 3 of Schedule 3 so as to make room for the new amendment. I beg to move.
Lord McCarthy: My Lords, I am not sure that I understand the Minister. Is he saying that the amendment removes the right of trade unions and members to have facilities under the 1980 Act not only for workshop-based ballots but for postal-based ballots too?
The Earl of Dundee: My Lords, with the leave of the House, no. It is only in the context of postal ballots and not workplace ballots. I fully appreciate that the noble Lord, Lord McCarthy, may not have

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caught my remarks. There are two conflicting provisions. On the one hand, we have the approval of the House for the clauses requiring fully postal ballots. On the other, we have the previous Act whereby employers would have to agree to make available their premises for the election. One cannot have both. Our latest provision is the one that would win.
On Question, amendment agreed to.
The Earl of Dundee The Earl of Dundee moved Amendment No. 49:
Page 39, line 51, leave out ("(2) After") and insert ("; and (b) after").
On Question amendment agreed to.
The Earl of Dundee The Earl of Dundee moved Amendment No. 50:
Page 40, line 29, leave out ("section 2(5) of that Act") and insert ("section 2 of that Act—
(a) in subsection (5)").
The noble Earl said: My Lords, with the leave of the House I shall speak also to Amendment No. 51. The House has previously agreed with the Government that postal ballots under independent scrutiny are the best method for conducting elections to union executives.
Unions have discretion under Section 2(13) of the 1984 Act as to whether or not to give a vote to overseas members. For the purposes of the Act, and with the exception of merchant seamen and offshore workers, overseas members are those outside Great Britain throughout the period during which votes may be cast. Union members in Northern Ireland, for example, would thus fall to be treated as overseas members in an executive election.
Where unions do choose to give such overseas members a vote, the Act's requirements as to the method of voting do not apply. This means that such members could be required to vote by any method whatsoever, including branch block voting or even a show of hands.
There may have been some justification for that because the 1984 Act allows for workplace ballots which would occur outside its jurisdiction. But under the fully postal voting method, apart from the voting itself, the basic processes—for example, despatch and counting—will take place on the mainland. It is therefore fitting to provide, as these amendments do, that where unions choose to give overseas members a vote it should be subject to the main provisions of Section 2 of the 1984 Act.
The unions will, as now, be free to choose for themselves whether or not to ballot overseas members. The amendments ensure, however, that where they do enfranchise them, overseas members must, for example, use a voting paper, vote by post, be able to do so without interference and so far as practicable without cost, and have their votes counted fairly and accurately. The clauses concerning independent scrutiny and election addresses will apply automatically where overseas members are enfranchised.
The amendments do not detract from unions' freedom of choice as to drawing up voting constituencies but simply ensure that the overseas
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members so enfranchised are treated the same as their Great Britain counterparts. I commend the amendments to your Lordships.
On Question, amendment agreed to.
The Earl of Dundee The Earl of Dundee moved Amendment No. 51:
Page 40, line 37, at end insert ("; and
(d) in subsection (13) (exclusion of overseas member), at the end there shall be inserted the words "except, in the case of subsections (5) to (8), where the union has chosen to accord that member entitlement to vote in the ballot." ").
On Question, amendment agreed to.
[Amendments Nos. 52 to 56 not moved.]
12.15 a.m.
Lord Mottistone Lord Mottistone moved Amendment No. 57:
Page 42, line 41 (numbered 40, at end insert—
("( ) in subsection (7) (conduct of the ballot) the following paragraph shall be inserted at the end—
"(c) the ballot should otherwise be fair" ").
The noble Lord said: My Lords, this amendment seeks to remedy a mischief exemplified by the ballot paper used by the Transport and General Workers Union in the recent Ford dispute at Dagenham. On the front of the ballot paper the union asked, "Are you prepared to take part in industrial action, including strike action, involving a breach of your contract of employment?" This was the question on which the union members were asked to vote and as is required by Section 11(3) of the Trade Union Act 1984 the question is framed so that the voter is required to say whether he is prepared to take part in action involving a breach of his contract of employment. Unfortunately, in this case the benefit in having the question framed in this way was nullified by a statement of the reverse of the ballot. On the back of the ballot paper the union stated:
"As required by recent Government legislation the ballot paper refers to strike or industrial action being in breach of your contract of employment. This has no special significance as all strikes involve a breach of your contract of employment".
This statement is objectionable in that it suggests that the reference in question to breach of contract is a mere technicality. It may mislead union members into believing that if they strike and break their contracts of employment it is a matter of no significance. It is surely wrong that union members should be misled in this way and that it should be possible for unions to do this whilst still satisfying the requirements of the Trade Union Act.
This amendment has been suggested to me by the CBI which tells me that it has available other cases of misleading wording. The purpose of the amendment is to oblige unions to conduct ballots before industrial action takes place in a fair and objective manner.
Noble Lords may wonder why so small an amendment would have such an effect? As I understand it, the extension to the codes of practice under Clause 18 is expected to give a definition of the word "fair", hence we need fairness in an appropriate part of the primary legislation. I submit to the House that this is indeed a suitable place. I beg to move.
Lord McCarthy: My Lords, I do not wish to keep the House any longer than is necessary. However, as the noble Lord, Lord Mottistone, has introduced the

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amendment at this time of night, we must say something about it. He does not tell us that the Transport and General Workers Union did anything that was unfair. Surely, it is not unfair to tell the truth. The union did not say that strikes are not a breach of contract and that one can strike with impunity; it said that all strikes are breaches of contract. In other words, the employer can dismiss a person every time he strikes. What, therefore, is wrong? I do not think it is unfair at all; therefore, we cannot accept the amendment.
Lord Trefgarne: My Lords, the Government are also unable to accept the amendment. However, having said that, we have some sympathy with the point raised by my noble friend. If he will withdraw the amendment, I undertake that we shall consider the problem between now and the next stage of the Bill to see whether there is a way in which we can meet my noble friend's concern.
Lord Mottistone: My Lords, I am most grateful to my noble friend the Minister for that undertaking. Accordingly, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 58:
Page 42, line 47 (numbered 46), at end insert—
("( ) In subsection (11) there shall be inserted after the words "In this section" the words—
""industrial action" means action which is unlawful by reason of a breach of, or interference with the performance of, a contract of employment." ").
The noble Lord said: My Lords, there are two important amendments; namely, Amendments Nos. 58 and 59. I shall move the first of them shortly by making three points. The first suggests a definition of industrial action to be inserted in Schedule 3, on page 42. There is already a definition of industrial action in Clause 1(7), but obviously that applies only to that clause. It is one of those curious definitions. It reads:
"'industrial action' means any strike or other industrial action by persons employed".
It is rather like defining elephants by saying: "The expression 'elephant' means a bigger elephant than any other elephant".
Secondly, the width of the aforementioned definition was noted in Committee and at Report stage, and there is no equivalent definition for the purposes of the 1984 Act. Therefore, for the purposes of that Act those wide, limitless definitions of industrial action cannot apply. The reason for that seems to be—after tonight's debate it is common ground—that the 1984 Act, even after the amendments of Schedule 3, will be left with a tort of inducing breach of contract of employment, or interference with contract of employment, as the basis of the employer's or other third party's application to the court.
Therefore, the industrial action which is the relevant sphere of the 1984 Act, after the amendments—in fact, even more so after the amendments—is that of the law of tort which
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involves some unlawful act in relation to the contract of employment. That is why we have suggested this definition to fill a void. I hope the Government will not say that this is unnecessary, because the function of definition, where the same words are used in two senses, is surely to cure the void which may otherwise perplex the court.
The court will see the width of the definition in Clause 1 and will perhaps understand it. It will be puzzled that there is no definition of the words "industrial action" in that part of the 1984 Act which relates to strike ballots at the instance of plaintiffs other than members of the union. We therefore suggest that "industrial action" should be defined by reference to the unlawful character, which is the necessary basis, of the tort or threatened tort which the plaintiff needs to pursue in respect of his action. We suggest that in the interests of clarity. I cannot believe that that suggestion will be controversial. We hope that the Government will accept the amendment. I beg to move.
Lord Trefgarne: My Lords, this is a matter that we have discussed at some length not only at this stage of the Bill but at earlier stages. The Government's view has been expressed clearly on several occasions.
Clause 1 is framed in this way because, for example, employees can face dismissal and lose their right to apply to an industrial tribunal if they are dismissed while taking any kind of industrial action. In addition, union members will not have any difficulty in recognising "industrial action", or inducement to take such action.
A "proper ballot" for the purposes of Clause 1 is taken to mean a ballot which, among other matters, satisfies the requirements of Section 11 of the 1984 Act. Because of this linkage, entitlement to vote in the ballot must be given to:
"All those members of the trade union who … will be induced to take part … in the strike or industrial action",
as Section 11(1)(a) as amended provides, and no member denied entitlement to vote is induced by the union to:
"Take part … in the strike or industrial action",
as Section 11(2)(b), as amended, provides.
I could expound the Government's view at great length. I do not propose to do so, and I hope that the noble Lord will withdraw the amendment.
Lord Wedderburn of Charlton: My Lords, I shall be brief. The noble Lord has answered a case different from the case made to him. Of course we accept the definition in Clause 1. That is water under the bridge after today's debates. That part of his reply was unnecessary. My case was that we needed a definition in respect of the 1984 Act, as amended.
The Minister could have made two valid responses. He could have said, "Yes, we will have a definition, but yours is not the right one" or he could have said, "We do not need a definition because it is clear that industrial action includes breaches of contract of employment only". He has not said either of those things. He has made a response which means that persons to whom entitlement to vote in the ballot can be accorded do not necessarily coincide with the

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constituency boundaries of those who are induced to breach their contracts of employment. Therefore Sections 10 and 11 are not congruent. That was the point we came to in the last amendment, and I beg leave to withdraw this one.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 59:
Page 42, leave out lines 50 to 53 (numbered 49 to 52), and insert—
(" "and section 1(6) of the Employment Act 1988 shall be applied to this section for the purpose only of determining any question falling within section 1(5) of that Act, but shall be otherwise disregarded for construing references in this section and in section 10 above to a person being induced to take part or to continue to take part in a strike or other industrial action." ").
The noble Lord said: My Lords, the amendment touches upon the same matter as the previous amendment. This is an attempt to see that the Bill is not left in a confused state. First, inducement can be effective or ineffective. If I induce the Minister to get up, I have effectively induced him. If I attempt to do so and he does not hear me, I may be said ineffectively to have induced him, but that is a difficult concept. That is a distinction that the Government are making.
First, the Government say that they will extend the union member/strike ballot provision contained in Clause 1, which extends to all types of industrial action, to all ineffective inducements. We do not quarrel with that. The Government have so defined the provision in Clause 1(6). We think that it is rather silly, but there it is.
Secondly, we come to the 1984 employer-induced strike ballot where the Government have stressed, as I have said, that the basis of the provision is still the law of tort—an inducement of a breach of a contract of employment or an interference with it. I assert to the Government that in the law of tort the liability can rest upon an inducement, a procurement, a seduction, an embargo or a threat of inducement or procurement or embargo. This is one of the most important provisions of the evening. It happens to be a matter of law which will affect a lot of workers. It can never be a matter of ineffective inducement. So to apply that notion to the 1984 Act is to apply something which is out of accord with the Government's logic.
Thirdly and lastly, the Government reply appears to be that they are only applying ineffective inducement as a definition to Section 11 and not to Section 10; Section 10 will still demand proof of a threat of effective inducement to break contracts but Section 11 will not. That is even worse, because Section 11 is the section which defines the valid constituency for those who are to be induced—now the word is "induced"; it is used to be "called upon"—to take industrial action. The employer's tort in Section 10 does not respect the same boundaries as the area of inducement to industrial action in Section 11. That is true if Section 1(6) is transplanted bodily into Section 11 of the 1984 Act. But if the matter is dealt with as our amendment suggests, the Government have their way; they have their Bill. The purpose will be effective. Subsection (1) on ineffective inducements will be transferred only to that part of Section 11 which is needed for Clause 1.
One would have thought that the Government could give some certainty to all those involved by transplanting "ineffective inducements" only to Section 11 in respect of the need of it in Clause 1. This is a somewhat complex matter. I am sure the Minister has a complex brief with which to reply to it. But I urge the Minister and his advisers to look very carefully at this again, because at the moment it is a terrible mess. It needs a more restricted application of the notion of ineffective inducement to Section 11 of the 1984 Act. I beg to move.
Lord Trefgarne: My Lords, I think I am a kind and honest man. I shall therefore desist from deploying the brief which the noble Lord rightly describes as long and complex and which the House in general may find unduly wearisome. I take note of his point. I think he well understands our position. I hope that at this late hour he will see fit to withdraw his amendment.
Lord Wedderburn of Charlton: My Lords, perhaps I may say a final sentence or two. It is a grave defect in the procedure of a legislature that the Minister whose job it is to reply—it is not the Minister's fault; I well understand that—and whose job it is to explain to people what these things mean has a very difficult and complex brief. It is a very difficult and complex matter; I want everyone to understand where we are. The fact that it is late at night is a great pity. The amendment could not come at any other point than here. I hope that the Minister will find some way, other than by private correspondence, to publish the more complex technical brief. This would be so that we could understand why the Government are standing on this point. Quite frankly, I genuinely do not understand it.
Lord Trefgarne: My Lords, if I have the consent of noble Lords to speak again, perhaps I may write to the noble Lord and place a copy of the letter in the Library.
Lord Wedderburn of Charlton: My Lords, I am grateful to the noble Lord and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Trefgarne Lord Trefgarne moved Amendment No. 60:
Page 42, line 53 (numbered 52), at end insert—
("(9) In section 22(6) of that Act (extent and application of Act), after the words "in Northern Ireland" there shall be inserted the words "or in relation to any unincorporated employers' association which has its head or main office in Northern Ireland".").
On Question, amendment agreed to.
Lord Trefgarne Lord Trefgarne moved Amendment No. 61:
Page 44, line 43, at end insert—
("The Agricultural Training Board Act 1982 (c. 9)
12A. In section 4(1)(f) of the Agricultural Training Board Act 1982 (power of Board to take part in arrangements in pursuance of the 1973 Act), for the words "section 2(1) or (2), 3(4)" there shall be substituted the words "sections 2, 3".
The Industrial Training Act 1982 (c. 10)
12B.—(1) In section 5(3)(e) of the Industrial Training Act 1982 (power of industrial training board to take part in arrangements in pursuance of the 1973 Act), for the words "section 2(1) or (2), 3(4)" there shall be substituted the words "section 2, 3".
(2) In section 15(3) of that Act (directors in pursuance of directions under section 3(1)(13) of the 1973 Act), for the words "section 3(1)(b)" there shall be substituted the words "section 2 or 3".").
The noble Lord said: My Lords, this amendment is consequential upon Clause 25. It is entirely technical, making no change of substance but simply changing some references. I beg to move.
On Question, amendment agreed to.
House adjourned at half-past midnight.