HL Deb 28 March 1988 vol 495 cc446-502

3.8 p.m.

Report received.

Clause 1 [Right to a ballot before industrial action]:

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 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 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


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.

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.
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.
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 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 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 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 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.

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 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 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 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 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 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.

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.
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.
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 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 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 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 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 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—

  1. (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;
  2. (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—
  3. "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";
  4. (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 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 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 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 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.

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 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 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 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 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 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.

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.
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.
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 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 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 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 moved Amendment No. 9:

Page 11, line 10, at end insert— ("(9A) Nothing in this section—

  1. (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;
  2. (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. 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 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.

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 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.

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 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 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 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 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—

  1. (i) the rules of the trade union provide for the appointment (of the general secretary) by the union's principal executive committee;
  2. (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
  3. (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.
    1. (a) entitlement to vote in the ballot must be accorded equally to all members of the trade union;
    2. 489
    3. (b) the method of voting must be by the marking of a voting paper by the person voting;
    4. (c) every person who is entitled to vote in the ballot must—
      1. (i) be allowed to vote without interference from, or constraint imposed by, the union or any of its members. officials or employees; and
      2. (ii) so far as is reasonably practicable, be enabled to do so without incurring any direct cost to himself;
    5. (d) so far as is reasonably practicable every person who is entitled to vote in the ballot must—
      1. (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
      2. (ii) be given a convenient opportunity to vote by post;
    6. (e) the ballot must be conducted so as to secure that—
      1. (i) so far as is reasonably practicable, those voting do so in secret; and
      2. (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).
    7. (f) in paragraphs (a) to (e) above—
post" means a postal service which—
  1. (i) is provided by the Post Office or under licence granted under section 68 of the British Telecommunications Act 1981; or
  2. (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 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 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. 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, 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.

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 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 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 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 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". 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 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—

  1. (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;
  2. (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
  3. (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 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 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 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.