HL Deb 28 March 1988 vol 495 cc514-87

Consideration of amendments on Report resumed on Clause 12.

Lord McCarthy moved Amendment No. 17:

Page 15, line 41, at end insert— ("(3A) in section 8 of the 1984 Act (exemptions for persons nearing retirement)—

  1. (a) in subsection (1) the word "voting" shall be omitted and
  2. (b) there shall be added the following subsection—
(5) Where any person holds a position which is mentioned in paragraph (a) of subsection (2) above, the provisions of section 3 (workplace ballots) shall apply in determining whether his election is one in relation to which section 2 (postal ballots) of this Act has been satisfied if, but only if, he was elected before 3rd March 1988.").

The noble Lord said: My Lords, we come in this packed and attentive House to Amendment No. 17, which we regard as the most important amendment that we are moving this evening. It attempts to modify the Government's intention that members of national executives, or PECs as they call them, without votes shall require postal ballot elections to qualify for the exemption provisions of Section 8 of the 1984 Act. The modification of that provision is modest because all that the amendment suggests is that the modification of the previous situation should apply from 3rd March 1988.

We choose 3rd March—we may be wrong with the date and we are happy to change it if it is wrong—because it was on 3rd March, as far as we know, that the Government passed their amendment, which we discussed in Committee, to change the position as regards people who did not have a vote so that they had to have a postal ballot, and not a workplace ballot, to qualify for the exemptions provided in Section 8 of the 1984 Act.

The amendment is concerned with the chaos and the irrationality which we think now exist in the various categories of trade union officials who are exempted on grounds of age from the normal requirement to face elections every five years under Section 8 of the 1984 Act. I wish to make two preliminary points before going into the record. I apologise to the House, but I have to go into the record, which is somewhat long.

The first point I make is that our amendment is not intended—I do not think that it does—to reduce the exceptions already available under the 1984 legislation. We are trying to widen the exemptions, not to reduce them.

Secondly, we ask the Government to listen to what we say with the utmost seriousness, because on the outcome of the debate and what the Government say in relation to the debate depends our attitude towards the hybridity of the Bill. The Government first agreed to grant exemptions in 1983. In Committee in the other place, in reply to Mr. John Evans who asked him whether he would exempt trade union officials just before they retired from the provisions of the Bill, Mr. Gummer said: When we began this debate in Committee, I said, to a certain amount of laughter from Opposition Members, that we would seek to change the law while running with the grain of the unions. For that reason, on seeing the representations made to me on this issue, I am very sympathetic to the proposals. Where a full-time official is a voting member of an executive committee, it may be sensible to provide, as the electricians and engineers do, a special derogation if he has been on the committee for some time and has more than five years between election and retirement. The case has been put, not only in Committee but elsewhere, that in this way a number of unions face the practical difficulties which arise if somebody has been on a committee for some years, has a very short time to go before retirement, has been properly elected and then faces an election which he might lose and, thereby, lose his job as well". The Minister went on to say: It is not the Government's purpose to lay on any unnecessary burdens on any trade union. The whole thrust of the legislation is to make the basic case for democracy in a way that trade unions can use to the full. We would not wish to create the difficulties outlined if we can help it. Therefore, 1 hope that we will be able to bring forward an amendment later in Committee or on Report to make it possible but not compulsory, because our whole purpose is to allow unions as much freedom as possible".—[Official Report, Commons, Standing Committee, 8/12/83; col. 192.]

Mr. Gummer was as good as his word. On 1st March he moved new Clause 4, which subsequently became Section 8: Exemption for certain persons nearing retirement". There were several conditions. We felt that there were three main conditions. First, if within the past five years the member of an executive had been elected in a way that satisfied the 1984 Act (Sections 2 and 3); secondly, if he were retiring in five years or less; and, thirdly, if he were a full-time employee with 10 years service or more.

As long as one qualified under those three categories, one was exempt from the operation of the Bill for the last five years of one's service. When moving the new clause Mr. Gummer said: Some trade unions are worried that a number of members who have been elected to the main executive committee and have served on it for some time will, on approaching retirement age, find themselves subject to an election which, if they lost it, would put them in considerable difficulty—simply because of the length of service that they had contributed to the union". Once again Mr. Gummer said that he wanted to move with the grain of trade union thought. He ended by saying: We have sought throughout to meet the real objections to what we are presenting to the public. One objection was that in some cases the Bill might be hard on long-serving members of trade unions. But the Government intend to make the trade union movement stronger, more representative and more able to meet obligations to its members. We did not wish anyone to feel that we were hurting long-serving members. That is why we tabled the new clause, which has the wholehearted support"— and indeed it did— of a wide range of people in the trade union movement".—[Official Report, Commons, Standing Committee, 1/3/84.]

The House will be aware that the 1984 Act applied only to those officials with a vote. Therefore, when the Government produced the Bill and as we read the Bill we waited to see what the Government would do about the Section 8 exemption clauses. We found to our surprise—we have expressed this surprise to the Government several times in Committee and elsewhere—that there was not a simple extension of the five-year exemption across the board to members of executives who did not have votes in the same way as applied to members of executives who did have votes, because for those with elections within the 1984 situation the position was the same. As long as one had a vote, one carried on in exactly the same way; at least one did until 3rd March, as was the case in 1984.

So far from honouring the spirit of what Mr. Gummer said for trade union officials in precisely the same position except that they do not have a vote and were not elected, for those who did not have an election the position was regulated by what is now Clause 12(4). Instead of those members of the executive having the five-year exemption which was granted under the 1984 Act to those who had a vote, they were given only a two-year exemption. We protested at the time. We tried to remedy the position.

We were told by the noble Lord, Lord Trefgarne, that what we proposed would exempt various people from the coverage of the Bill; for example, Mr. Sapper of the ACTT, Mr. Bickerstaffe of NUPE, and he could have added Mr. Jenkins, late of ASTMS, and Mr. Gill late of TASS, because, as we said, a refusal to accept the five-year rule for those general secretaries meant that they were covered by the Act and would have to face an election. There it rested. At that point we felt that the position was anomalous. We did not think that it was sufficiently anomalous to justify our questioning the basis of the Bill. There it rested until 14th March when the noble Lord, Lord Trefgarne, moved Amendments Nos. 130 and 133.

It is very serious from this point of view to note what he said: These amendments are again technical amendments which make clear the Government's original intention that the existing exemption for those nearing retirement under Section 8 of the Trade Union Act 1984 should be available only to those whose most recent election was by the fully postal method".—[Official Report, 14/3/88; col. 996.] That was all he said, except for adding, "I beg to move". I want to be fair to the Minister. I still take the view that the best that we can hope for, the best we can assume, the best we can say on behalf of the noble Lord is that it was meant to be a joke. It was never meant to be disingenuous. It was never meant to suggest to ignorant or perhaps rather sleepy people late at night that there really was nothing in that amendment.

The Minister knew very well that it was not a technical amendment. He knew that it was a change of policy. He knew that it was a last minute change of policy which had not been heralded in the Green Paper and which had not been included in the first print of the Bill where it would have been included if it had been part of the essential purpose of the Bill. It was not mentioned at any time in the Commons; it was not mentioned on Second Reading and not explicitly in Committee until that last day at 9.15 p.m. As I said, the best one can assume is that it was a joke. In reply to that joke I said on this side that the Minister knew it was not a technical amendment. He then explained what the amendment meant and said he had not explained it at the time because he thought it was late at night, and so on.

What does this amendment do? Let us be quite clear. It denies the exclusion rights of Section 8 of the 1984 Act to those who have no vote and are elected by a workplace ballot within the terms of the 1984 Act. Up until that time, from the publication of the Bill in October last year they had every right to believe that they were covered by the terms of the 1984 Act. Now unless they have postal ballots they are not covered by the terms of that Act.

As a result of this amendment we now have four categories. It is important that I should spell them out briefly to the House. We have four categories of PEC members who share two kinds of exclusion rights. Our central question to the Government tonight is, what is the logic of it? What is the rationale of it? Why should we not believe, as we are reluctant to believe, that it has been done for private rather than for public reasons? There are four categories. I ask the House to think how one could rationalise those four categories.

First come the members of PECs with votes, elected under the terms of the 1984 Act either by postal ballot or by workplace ballot. It does not matter; as long as they have votes they get five years' exemption. If they have had an election within the previous five years, they can have up to 10 years without an election.

Secondly come the members without votes, only just put into the Bill, elected under the terms of the 1984 Act but Section 2, not Section 3. They were elected by postal ballots and they are in exactly the same position 8 the members who have votes who are elected by workplace ballots or postal ballots: they have five years' exemption. That is the second category.

Then we come to the third category, the members without votes who were elected under the terms of the 1984 Act but by workshop ballot and who suddenly found on 3rd March that they were excluded from the 1984 Act and were merely covered by the two-year exemption rule in the Bill.

The fourth category is the members without votes who have never been elected and who have been appointed perhaps by their executive or by their annual conference, and they are covered by the two-year rule. We argue that these weird and irrational specifications result in endless anomalies. I do not want to burden the House by listing all these anomalies; I shall just quote one or two, although I could give more.

One is of a general secretary without a vote who was elected by a secret workplace ballot just over a year ago and was due to retire in three years' time. He has to face re-election by postal ballot. This could well take place less than two years before his retirement because it comes into operation when that part of the Bill comes into operation.

The same person, with all the other qualifications and 10 years on the executive, would presumably be more influential. If he had a vote he would be covered by the 1984 exemption provisions, even if his last election had taken place almost five years ago and he was more than four years away from retirement. In other words, he would have nine years of protection, you might say.

The Government have been unable to explain to us—I do not think they have even tried—why officials who have votes and who by all common sense are presumably more powerful and influential are to be treated less strictly than people who have no votes. The Government cannot say, and have never tried to say, why those who have never stood for election and who are appointed by their executive are to be placed in precisely the same position as those who have been recently elected by a universal secret ballot within the terms of a Section 3 of their own 1984 Act.

I say to the Government that all the evidence suggests that these changes have been constructed without reference to the principles of the Bill; that they are there to impose elections on individuals whom the Government do not like, in particular a small number of general secretaries and presidents. I do not choose my names from the air; I choose them from the names which the Minister and his supporter have mentioned in this debate: Mr. Scargill, Mr. Sapper, Mr. Jenkins, Mr. Gill, Mr. Bickerstaffe and one name which has not been mentioned, Mr. Todd of the Transport and General Workers' Union. These are the people who will not get the five-year exemption. Had they applied the provisions of the 1984 Act across the board to people who did not have a vote in exactly the same way as they did to people who had a vote, these are the people who would have been covered by the Bill but who are outside it: Mr. Scargill, Mr. Sapper, Mr. Jenkins, Mr. Gill—or as he is sometimes referred to in this House, "Mr. Jill"—Mr Bickerstaffe and Mr. Todd.

I must end by looking at what the Minister has said in defence of his position. At this point I was going to quote from the speech that he made on 14th March when he replied to the amendment. However, I find that the statement which he made on that occasion and to which I referred in my speech in the debate has been more succinctly and clearly set out in a letter which he was good enough to write to my noble friend Lord Wedderburn on 25th March 1988. The Minister placed two copies of the letter in the envelope, so one was passed to me. In the light of what he says there, I feel that I must take this as his final statement of his explanation.

I believe that there are three points that the Minister mentioned on 25th March in justification of the Government's position. I wish to answer each one very briefly. First, the Minister wrote: The new provisions clarify the original intention with respect to the exemption provided by Section 8. They make clear that those currently within scope of Section 1 of the 1984 Act—that is, voting members of the executive—can benefit from this retirement exemption by virtue of an election which was either fully postal or held at the workplace".

I suggest to the Minister that that is not the case. I suggest that if one looks again at the quotations which I have taken from Mr. Gummer in 1984 one will see that the original intention was wider than that. The original intention of the Government was to protect, as one might describe them, aged general secretaries who were within five years of retirement. The natural assumption would be that if any further general secretaries were covered by the legislation they would be similarly covered by the exemptions. That is the only sensible way that any reasonable man can read what Mr. Gummer said.

Secondly, the Minister continued: Equally, the new provisions spell out the intention that those brought into scope of the election requirement by the Bill should qualify for the retirement exemption only on the basis of a postal ballot.

I say that that also is not so. When the Bill was published it did not state that. The Bill did not spell out the intention of those who brought it in—that it would qualify the retirement exemption only on the basis of a postal vote. For the first six months not one word was said about that. For the first six months, until the Government thought that certain trade union leaders were finding ways round the legislation, the position was quite different.

Thirdly, at the end of his letter the Minister stated: It will be readily apparent that Section 8(5)(b) does no more than to pick up a category already defined in existing legislation and maintain the rights its members were entitled to expect.

I say once again that the members were entitled to expect rather more than that. In fact in the first six months of the Bill they did have more than that. Therefore we are bound to go back to the remarks that the Minister has been making through the course of the passage of this Bill through the House. Those are the remarks that I listed in my last speech in Committee. The noble Lord, Lord Wyatt of Weeford, at col. 605 of the Official Report on 8th March, said: Mr. Scargill was trying to dodge the provisions of this Bill".

The noble Lord, Lord Trefgarne, replied that in those remarks unfortunately the noble Lord, Lord Wyatt, was failing to hit the target. Of course in the womb of time the noble Lord had a much better amendment.

At col. 998 on the 14th March, when the Minister was drawn by us into talking about who the Government had in mind when they refused to lift the exemptions from two years to five years, he mentioned, referring to Clause 12, the: age profile of those in scope". He offered to give us the names of those who were in scope of Clause 12 and then he refused. And yet he mentioned the names of Mr. Sapper, Mr. Bickerstaffe, Mr. Scargill and others. At col. 998 it is recorded that the Minister still maintained: I am advised that the class concerned was not determined by reference to the ages of individuals, … most of those in scope will be relatively aged".

Even today certain remarks have been made. I have written these down and I may have got the times wrong but the Government on two occasions have referred to people who have to be kept out of the protection of the exemption clauses.

At 5.46 p.m. by my watch the noble Lord, Lord Trefgarne, said that there were loopholes in the Bill or that there had been loopholes or that there might be loopholes. He said that certain important leaders had given up their votes. They presumably did so with the aim of getting through the loopholes.

At 6.42 p.m. the noble Earl, Lord Dundee, said when we were discussing the amendment of the noble Lord, Lord Mottistone, that there were people who would slip through these amendments if we accepted the kind of proposals that the noble Lord, Lord Mottistone, was suggesting.

Again Mr. Sapper, Mr. Jenkins and Mr. Gill were mentioned. Therefore we say that the Government have said quite enough to make us believe that they have a great deal to answer for. If they do not want us to think that these amendments, these distinctions and these qualifications have been introduced into this Bill in order to penalise a small number of allegedly Left-wing general secretaries that the Government want to penalise, what they have to do is quite simple; they have to accept our amendment.

Our amendment states that after 3rd March everything they want will occur. The anomalies will remain. The position will be unsatisfactory but in this way at least nobody can say that the Government have been influenced by personal prejudice and not by public interest. That is the opportunity for the Government on this amendment—to show that they are not influenced by personal prejudice and that they are concerned with the public interest. I beg to move.

Lord Trefgarne

My Lords, I am greatly obliged to the noble Lord for introducing his amendment in the detail that he did. We are back on the ground covered by the government Amendments Nos. 130 and 133 which were considered and accepted in Committee.

I am bound to say that the amendments currently before your Lordships largely reverse the effect of what the Committee agreed two weeks ago. I am bound also to say that the Government see no reason for such a reversal and that therefore the amendments are not acceptable.

As I explained to your Lordships in Committee, the Bill as it now stands will amend the retirement exception in Section 8 of the 1984 Act so that members of the principal executive committee will not be required to be elected if they are within five years of retirement age; their previous election satisfied Section 2 of the Act and was held not more than 10 years before retirement age; they have been a full-time employee of the union for at least 10 years; and they are entitled, apart from the statutory election requirements, to hold office until retirement.

Your Lordships will note, despite what the noble Lord, Lord McCarthy, suggested on the previous occasion when we debated this issue (Official Report, 14/3/88; col. 999), that the Government believe there should be no distinction as to the availability of this retirement exemption between those who have a vote and those who do not once the provisions in the Bill have come fully into force. The lack of any such distinction has always been evident on the face of the Bill, as is shown by paragraph 5(5)(a) of Schedule 3.

It is clear that one of the main conditions of eligibility is that the individual's previous election must have satisfied Section 2 of the 1984 Act. This section includes the requirement that the election be conducted by the fully postal method, and it has always been our intention that this should continue to be a principal condition in qualifying for the exemption.

What was not clear on the face of the Bill though was that individuals who were required to be elected under that Act can satisfy the requirements of Section 2 by means of an election which satisfies Section 3—that is to say, a ballot conducted at the workplace. It is clearly wrong that individuals who are subject to that Act and have been elected in accordance with its provisions should be penalised when it comes to the retirement exemption, or that there should be any doubt as to whether or not they qualify.

The Government amendment accordingly clarified the fact that, where the position to which an individual was elected was that of a voting member of the executive at the time of the election, he can qualify for the retirement exemption by means of a workplace ballot held before the fully postal requirement of the Bill comes into force.

The effect is that, once the amendment is made to the 1984 Act and Clause 14 is in force, those currently within scope of that Act (that is to say, voting members of the executive) who were elected at a workplace ballot can continue to benefit from the retirement exemption but others cannot benefit unless their election was fully postal.

The amendments now before your Lordships would to a large extent reverse the government amendment by providing that a workplace ballot should continue to count for the purposes of the retirement exemption for individuals elected before 3rd March. The difference between us comes down to the basic issues of policy and timing; policy as to whether individuals who were not required to be elected by the 1984 Act and whose election therefore was not subject to the conditions and safeguards of the Act should be able to benefit from the retirement exemption on the basis of a workplace ballot once fully postal voting is normal; and timing, in that, for the purposes of the amendment at least, some of your Lordships seem to accept that only those elected before 3rd March should be able to benefit in that way.

The Government believe that the only ones who should be able to benefit from the exemption by virtue of a workplace ballot are those elected under the requirements of the 1984 Act as voting members of union executives. I must therefore resist the amendments.

The noble Lord has referred in particular to the possible hybridity of the provision. We have no doubt that the Bill is not hybrid. I referred to that matter in the letter which I wrote to the noble Lord, Lord Wedderburn, explaining why the government amendment referred to, a position by virtue of which the person elected would become such a voting member". That is contained in the new subsection (5)(b) at page 41. I hope that the noble Lord now sees that the reference was essential because of the structure of the Act and of the section itself. Without the reference, individuals in such a situation would be worse off.

The noble Lord's amendment implicitly recognises that by referring back to, a position which is mentioned in paragraph (a) of subsection (2) above". That paragraph contains the phrase, whether as a member or as the holder of another position in the union", which is itself a reference to Section 1(2) of the Act.

I therefore hope that the noble Lord will agree that that is an essential policy consideration upon which your Lordships reached a view at the last stage of the Bill. In my judgment, the position which we then reached should be maintained.

Lord McCarthy

My Lords, the noble Lord has told us four things. He says that the agreements largely reverse what was agreed at Committee stage. They do not do that; they only do it after 3rd March. We are saying that it would not be fair to do it in a retrospective way. They can have their way after 3rd March. We are not largely reversing what the Government wish to do. We are simply trying to introduce a modest amendment to clear away the possibility that it might be done for some private interest rather than some public interest.

Secondly, the noble Lord says that because that was done for voters in 1984 the Government cannot stop it now. However, they can stop it for non-voters. That is a strange doctrine. What is explicit cannot be changed; what is implicit can be changed whenever we like. If there is an explicit right which says that the Government give you certain things, the Government cannot come along and change that explicit right. But of course they do that every day and all the time. Most legislation changes previous legislation. That argument is rubbish.

On the other hand, if people have a certain implicit freedom in the sense that the Government have left them alone and have not brought them within the purview of legislation at all, surely they have even more reason to expect that they will be left alone and that, if they are subject to legislation, they will be subject to legislation in much the same way as the people who have been subject to it already. I notice that the Minister never tries—it is the heart of a rational defence—to explain why we are less tough on people with votes than we are on people without votes, except that we do not like the people who got elected who do not have votes.

The third point the Minister made is that the Government intended all along to penalise the workplace ballot people. They apparently intended that as far back as 1984. They were going to penalise such people but they never got round to telling us. Not only did they not tell us that in 1984, which I can understand, but they did not tell us when the Bill was published. They did not put it on the face of the Bill. Were we supposed to guess? They did not tell us at Second Reading in another place; they did not tell us at the Committee stage; they did not even tell us in this House until the amendment was published on 3rd March. The noble Lord must think that we all guessed that the amendment would be put forward and that it did not surprise any of us. I do not think that he believes that.

Fourthly, the Minister tells us that the Government would let the workplace ballot stand but that that will not do because if the workplace ballot stands the fundamental commitment by the Government to postal ballots will be gainsaid. Of course that fundamental commitment to postal ballots has just been invented and has just been put into the Bill. It was not put into the Bill from its inception in a way that ruled out workplace ballots for people with votes or without votes.

The noble Lord has not reassured us on any of the reasons we have for believing that there are grounds for saying that the Bill may be hybrid. As I understand it, the essence of the argument is that the obfuscations which we have had do not constitute the basis for treating the general secretaries and presidents in particular as a genuine class. If they are not regarded as a genuine class, that introduces what might be termed a non-genuine class and private interests have intruded into a Public Bill. That makes it a hybrid Bill. In any case, we intend to test the mood of the House by voting on the amendment.

8.36 p.m.

On Question, Whether the said amendment (No. 17) shall be agreed to?

Their Lordships divided: Contents, 31; Not-Contents, 59.

Division No. 4
Blease, L. Nicol, B. [Teller.]
Cocks of Hartcliffe, L. Parry, L.
Dean of Beswick, L. [Teller.] Pitt of Hampstead, L.
Dormand of Easington, L. Prys-Davies, L.
Elwyn-Jones, L. Rochester, L.
Graham of Edmonton, L. St. John of Bletso, L.
Grey, E. Seear, B.
Harris of Greenwich, L. Stewart of Fulham, L.
Hatch of Lusby, L. Taylor of Blackburn, L.
Hooson, L. Turner of Camden, B.
Houghton of Sowerby, L. Underhill, L.
Jeger, B. Wedderburn of Charlton, L.
McCarthy, L. White, B.
Mackie of Benshie, L. Winchilsea and Nottingham, E.
McNair, L.
Morton of Shuna, L. Winstanley, L.
Abinger, L. Belstead, L.
Ampthill, L. Bessborough, E.
Arran, E. Blatch, B.
Beaverbrook, L. Boyd-Carpenter, L.
Brabazon of Tara, L. Margadale, L.
Brougham and Vaux, L. Massereene and Ferrard, V.
Caithness, E. Mersey, V.
Carnock, L. Morris, L.
Carr of Hadley, L. Mottistone, L.
Cox, B. Mountevans, L.
Craigavon, V. Munster, E.
Davidson, V. [Teller.] Napier and Ettrick, L.
Dundee, E. Nelson, E.
Ferrers, E. Newall, L.
Fortescue, E. Radnor, E.
Gisborough, L. Renton, L.
Gray of Contin, L. Renwick, L.
Greenway, L. St. Aldwyn, E.
Harmar-Nicholls, L. Saltoun of Abernethy, Ly.
Harvington, L. Sanderson of Bowden, L.
Hesketh, L. Skelmersdale, L.
Hives, L. Strange, B.
Hood, V. Teviot, L.
Hooper, B. Trafford, L.
Joseph, L. Trefgarne, L.
Kaberry of Adel, L. Trumpington, B.
Layton, L. Vaux of Harrowden, L.
Long, V. [Teller.] Wyatt of Weeford, L.
Lucas of Chilworth, L. Zouche of Haryngworth, L.
Mackay of Clashfern, L.

Resolved in the negative, and amendment disagreed to accordingly.

8.45 p.m.

Lord Wedderburn of Charlton

My Lords, I understand that it is the right of any noble Lord who is of the opinion that a Bill has become hybrid by reason of amendments to be able to move a Motion at any stage of the Bill that the Bill be referred to the Examiners. I wish to move that Motion now, on grounds that I shall set out as quickly as I can. However, this being a somewhat serious matter, I apprehend that I should do so carefully.

I should like to suggest to the noble Lord, Lord Trefgarne, that, if the Government were prepared to accept that reference, the sensible thing to do would be to postpone the moving of the Motion until the rest of the amendments have been disposed of—namely, after Amendment No. 61. As I understand it, the Bill would be referred to the Examiners to determine in the light of all the evidence and of the debates, and any further evidence that may be put to them, whether a prima facie case has been made out. I do not know whether the Minister would find my suggestion acceptable. I apprehend that his not intervening means that he would not.

The case for the reference to the Examiners, which could not be made until this point, is based upon the nature of what came to be known in Committee as Amendment No. 133, inserting a new Section 8(5) (b) into the 1984 Act. That amendment was tabled on 3rd March in the light of the debates on the matter and the position of Section 12(4). Most of the evidence has been set out by my noble friend Lord McCarthy today and in his speech in Committee. There is a prima facie situation, without adequate explanation, of treatment of certain persons who as a class may be described as non-voting general secretaries or presidents of trade unions and who, on the basis of the Government's own record, constitute a very small group.

This is a serious matter and, if I may, I will say in parenthesis that I hope we have done our duty in taking counsel from those in charge of your Lordships' business. We understand why no intervention was made from those channels on the face of the Bill. We make our case on the basis of the Bill as it has been debated, and indeed its context in society.

Perhaps I may refer to one or two aspects of a hybrid Bill. The locus classicus of the definition is now always taken from the well-known statement of Mr. Speaker Hylton-Foster in 1963, when he said: I think that a hybrid bill can be defined as a public Bill which affects a particular private interest in a manner different from the private interests of other persons or bodies of the same category or class.". It was in commenting on that definition that your Lordships' own Examiners, in their report of 1977 on the Aircraft and Shipbuilding Industries Bill, said: This definition, taken at its face value, indicates what may have been thought to be obvious, that the doctrine of hybridity is an expression of the will of each House of Parliament that an individual singled out by a Public Bill for adverse treatment should be allowed to plead his cause to a Select Committee on a petition against the Bill or against those provisions of the Bill that will affect him. The doctrine was designed to give the minority some defence against the legislature.". We say not that this is precisely analogous with the matter upon which your Lordships' Examiners were reporting in 1977 but that it is a similar case. That case is described in Erskine May as one in which the Bill, being referred to the Examiners in your Lordships' House, was found to be hybrid because one company in ship repairing which fulfilled the qualifying conditions for nationalisation was not proposed to be nationalised, or one of the qualifying conditions placed on the companies was not germane to the subject matter of the Bill.

This is not a case in which there are tests of that kind excluding from the class. But taking the same principles, we believe that the tests that have been drawn up to define the class especially paragraph (b) of Section 8(5) as it would be of the 1984 Act, in Amendment No. 133, is a class which is not a genuine class in the sense that it does not—and, on the Minister's own speech this evening, it cannot—reflect tests which are germane to the rest of the Bill and its history. To put it at its simplest, no explanation has been given for the disadvantageous treatment of those non-voting officials of the unions.

On the other hand, as my noble friend said, unprompted from the Government, there has been the citation of individuals as illustrations of the targets and of those we must exclude. Of course, if they formed a genuine class on tests germane to the Bill it would be no proof of hybridity. When they constitute a group which the Government themselves acknowledge is politically opposed to them and when they constitute a class which cannot be genuine on the basis of the Bill's own tests—I want this to be clear to the Government because they should know what they may be rejecting—I submit that the record shows enough evidence to ask the Examiners whether standing orders are applicable on a prima facie case. If the Government are so confident or so insecure as not to wish the question of a prima facie case to be considered, that is up to them.

I refer again to the report of 1977 from your Lordships' Examiners. One paragraph at page 12, speaking about the origin of the rules concerning hybridity, states: We are however convinced that they were designed by both Houses to ensure that the subject should have a right to plead his cause before them"— that is the Examiners— if he could show that their legislation would put him to greater disadvantage than it would put his fellows. Parliament has, in other words, been careful to protect the individual from the majority, from the power of the state, or, if you prefer it, from the power of the Government". I hope that the Government will reflect upon that principle. Since 3rd March the Government have made no bones about the people to whom these provisions would primarily apply. Despite what the noble Lord, Lord Trefgarne, once said, the words of Scargill, Bickerstaffe, Sapper and Gill—not, it is true, of Ron Todd but certainly the rest—came first from the Government's side, with the exception of remarks made by the noble Lord, Lord Wyatt.

One issue for the Examiners to consider must surely be the effect of instructions given to draftsmen on a Bill drawn up on consideration inter alia of the personal position of those particular people. I do not know if the noble Lord has got that. If not, I shall repeat it. Let me presume that he heard me.

There is a remarkable analogy with certain passages in the 1977 report which brings to the foreground the manner in which the targeting of particular persons has been a common feature of the debate—not merely the aim of the Government. The noble Lord, Lord Campbell of Alloway, was quite clear. In one debate he said that there was a problem of the hard Left which had to be dealt with. The noble Lord, Lord Wyatt, was also quite clear about that. The passage in which the noble Lord, Lord Trefgarne, first admitted, indeed almost proposed, that the legislation had been drawn up by reference to individuals—he said later he was advised that that was not so and later still that there was no question about it—is one which I apprehend raises a prima facie case. The Minister is an honourable man. So are they all, all honourable men. I speak not to disprove what they have said, especially what they said first. The fact that they said something secondly does not necessarily finalise the case. Indeed, at Committee stage—the passage can be found in Hansard at col. 1003—the noble Lord said in his strongest statement made before the letter he wrote to me which the noble Lord, Lord McCarthy, has discussed: There is no question of this Bill being aimed at a particular person. It is aimed at the categories of person described in the amendment". That is undoubtedly true. Indeed, it is a tautology. The question is whether "Mr. Scargill and Mr. Todd" is a category which falls within a genuine class on tests germane to the Bill. I put to the House that there is a case into which inquiry should be made that it is not a genuine class. Of course the category is clear. Section 8(5)(b) just happens to be a category which runs counter to every single precept, principle and test in the Bill up to that point in the way that it treats non-voters. And hey presto! It just happens that here we have two general secretaries who are non-voters and whom the Government plainly had in mind, as was first said.

If that case were proved—no doubt more evidence should be taken upon it but that could quickly be assembled since it is not a matter of great length of time or an attempt to keep the Government from their Bill for a month—we can see whether or not there is this apparently prima facie case into which we on these Benches can go no further. Much of the evidence is in the Government's hands and the hands of others who may wish to address the Examiners should they be so allowed. But when we find that the case can be made, on the face of the Bill's history, that it has been revised and amended to put at material disadvantage a handful of identifiable individuals who are named by government spokesmen in a public Bill on tests which are not germane to the Bill, then surely there is a prima facie case which the Examiners ought to consider.

When every newspaper reporter and commentator with the advantage of Lobby access to the Government have long reported the twists and turns of this matter as government moves to get particular union leaders and in the light of debates that have occured in this House since 3rd March, surely there is in all conscience a case for examination by the Examiners. When it is said that the very drafting of the Bill was done against a checklist of individual targets—a proposition that is quite consistent with at least one of the different propositions that have come from the Government Front Bench—there is surely a case for the Examiners to consider whether Standing Orders applicable on a prima facie basis.

The question is whether the new Section 8(5)(b), Amendment 133, in the light of all the evidence on the record, constitutes prima facie a possible class that is non-genuine on tests that are not germane to the Bill. In the light of that, we also raise the question, which comes more into the picture because of the names that have been attracted to it, of the position of Clause 12(4). My submission, therefore, is that this is a matter which the Government should accept.

I want to say this as nicely as I can. I hope that with some 20 or so noble Lords in the Chamber the Government will not mobilise the vast and shadowy army that we know they have elsewhere to defeat these propositions unheard. The noble Lord, Lord Boyd-Carpenter, always enjoys that. One day the bell may toll for him and his arguments may go under. I am serious. This is not a matter which concerns this House alone. I make no bones about it. If it is not raised formally in this Chamber it cannot be raised formally easily in another place. I am well aware that that is the case. I do not raise it for that reason but I have it in mind.

I have also in mind that the Government's response should be serious and calculated. We gave them notice at Committee stage that we wished to raise this issue if we did not have a satisfactory response. We are genuine in thinking that these are provisions, in particular Amendment No. 133, that aim at a small group of individual senior officers of trade unions who are all their political opponents, as the Government think; that they have been selected on that basis and that this has been a large element in the drafting of this amendment to Clause 12(4).

The tests are not germane to the Bill. The Examiners should at least consider whether a prima facie case has been made. I beg to move that the Bill be referred to the Examiners.

Moved, that the Bill be referred to the Examiners.—(Lord Weddesrburn of Charlton.)

9 p.m.

Lord Trefgarne

My Lords, the noble Lord may be disappointed but perhaps not surprised to hear that we do not for one moment accept his proposition that the Bill is in any way hybrid. This was a charge to which he alluded during the Committee stage, in particular in relation to Amendments Nos. 130 and 133. Amendment No. 17, which we have considered this evening, seeks to address the same point. I note that your Lordships accepted Amendment No. 133 during the Committee stage and have rejected Amendment No. 17 this evening.

The noble Lord has focused on the definition of categories included in or excluded from the retirement exemption. The new provisions clarify the original intention with respect to the exemption provided by Section 8. They make clear that those currently within scope of Section 1 of the 1984 Act—that is, voting members of the executive—can benefit from this retirement exemption by virtue of an election which was either fully postal or held at the workplace. These are the alternatives set out in the 1984 Act and it would be wrong to leave any doubt that a person elected in accordance with either of them is entitled, subject to the other conditions, to benefit from the retirement exemptions. Equally, the new provisions spell out the intention that those brought into scope of the election requirement by the Bill should qualify for the retirement exemption only on the basis of a postal ballot.

The function within new Section 8(5) of paragraphs (a) and (b) is simply to define those currently within scope of Section 1 of the 1984 Act. In the backward reference to "paragraph (a) of subsection (2) above", taking in the total class of potential beneficiaries of Section 8 as amended—that is, all elected members of the principal executive committee—the immediately following words confine the reference to those elected before the coming into force of Section 13(2) of the Bill and the conditional clause at the end of the new subsection those who were required to be elected by virtue of Section 1 of the Trade Union Act 1984. It is therefore essential that paragraphs (a) and (b), like the parenthesis in subsection (2)(a), reflect the dual structure of Section 1 of that Act which refers in Section 1(1)(a) to persons elected as voting members of the PEC and in Section 1(2) to persons who are voting members of the PEC by virtue of holding some other position in the union.

It will be readily apparent therefore that Section 8(5)(b) does no more than pick up a category already defined in existing legislation and maintaining the rights its members were entitled to expect. It is impossible to predict how many persons will be affected by Section 8(5) or will benefit by the specific provision of paragraph (b). I would recall, however, that there are around 370 trade unions and I should be surprised if the effects of the subsection were limited to the one or two names that have been mentioned in the debate.

I believe that in the light of those considerations the proposition that this Bill is hybrid is without merit. On the contrary, I think the fact that the noble Lord has brought this Motion forward now is simply by way of a wrecking or delaying proposition and I invite your Lordships to reject it.

Lord Wedderburn of Charlton

My Lords, I have never wrecked anything in my life although I would dearly wreck this Bill if I could. With respect to the noble Lord, he is a little less than fair. We made it quite clear why we had not moved a Motion on hybridity. We wished to give him the maximum chance not only to accept our amendments but to give an explanation.

The noble Lord has not explained one simple factor, to take a central issue—and more emerge as we proceed—that in the new Section 8(5)(b) there is a definition, as he said; there is a category but nobody has ever explained why it is not drafted in the way that one would expect if one read the rest of the 1984 Act and the Bill in 1987 before this provision was tabled to include both those general secretaries with and those without votes; The Government have left out those without votes; and when they left out those without votes they started talking names.

They did not talk about 370 names. I have no doubt that the noble Lord has a reservoir of names. We have not talked about 370 trade unions but we have talked about Mr. Scargill, and Mr. Todd came into the debate. In Clause 12 we talked of Mr. Sapper, Mr. Gill, Mr. Jenkins and Mr. Bickerstaffe. The noble Lord's repetition that he has a category does nothing to explain the absence from the category of the non-voters who have been the base of the reference to individuals. The longer we continue the less he justifies his Bill. This is not a wrecking move.

Lord Boyd-Carpenter


Lord Wedderburn of Charlton

The noble Lord, Lord Boyd-Carpenter, sometimes finds difficulty in considering that it is possible for this side of the Chamber to make a genuine point. We raised the matter of hybridity in Committee. We have been quite clear about it. My noble friend Lord McCarthy raised it in his speech this evening. We believe there is a prima facie case for reference to the Examiners. I do not say, and I have not said, that there is a proven case. My submission is that the record is a prima facie case. I am quite astonished that in response to me on this Motion the Minister repeated his speech on the amendment. He has said nothing about the Motion and nothing about hybridity. He has said nothing about why the principles of hybridity could not possibly apply. He has told me that there is a category in new Section 8(5)(b).

This is a very serious moment for the Government. They are not prepared even to have this matter considered on the record that is available. If the noble Lord tells me that I have my procedure wrong, I will accept it entirely. We seem to do so this evening. But I wish to press this Motion. I should like the House to consider the Motion unless the Government are prepared to consider meeting us by consideration, that being rather easier than a Division.

Lord Boyd-Carpenter

My Lords, I hope that the noble Lord will press his Motion so that we can get rid of it. He knows perfectly well that the introduction of this Motion at this stage is simply an attempt to delay the Bill. He is far too well informed in the procedure of this House to believe that there is the slightest justification for the idea that the Bill as it now stands involves hybridity. Indeed, in the books on procedure it is quite clear that hybridity has to be far more precise in its effects on particular individuals than are the clauses in the Bill as they now stand. He will find that all the precedents point that way. I am afraid that the fact that he sees fit to raise this matter at this stage, late in the evening during the Report stage—

Noble Lords


Lord Boyd-Carpenter

—of the Bill and when he himself says that he is pointing out that any invalidity that arose in Committee—

Lord Wedderburn of Charlton

No, no.

Lord Boyd-Carpenter

Yes, my Lords. The noble Lord said that. If he reads Hansard in the morning he will see that he said that. It is no use the noble Lord trying to say that because he denies what he said a moment ago, he did not say it. He is simply seeking to obstruct the progress of a Bill which he does not like. I hope your Lordships will make it clear that we do like it.

Lord McCarthy

My Lords, before the noble Lord sits down, will he not agree that it is very unfair to say that we are holding up the Bill? We are committed. Noble Lords can laugh but they should listen as well. We are committed to finish this Bill at Report stage tonight. We shall finish this Bill at Report stage tonight. The noble Lord may go home if he wishes, but we shall finish this Bill at Report stage tonight. The procedure that my noble friend Lord Wedderburn is suggesting does not take the time of the House. It does not take the House to sit. It can be done upstairs. We have not asked that the House should be adjourned. We have produced a procedure that does not delay the Bill at all. I think the noble Lord should withdraw.

Lord Boyd-Carpenter

My Lords, the noble Lord knows perfectly well that if this Motion were accepted it would delay the Bill, because it could not proceed further until the Examiners had examined it from the point of view of hybridity. The noble Lord knows that perfectly well and that is why he is doing it. I do not know why he is wasting the time of the House by denying it.

Lord Wedderburn of Charlton

My Lords, I ask the noble Lord also to read Hansard tomorrow and perhaps to reconsider what he has said. He is right in one respect. I have never said that there will be no delay. I have said that consideration of a prima facie case of applicability of Standing Orders would mean a short delay, but the Government need not in any way lose the Bill. I accept that there would be a short delay. On that the noble Lord is right. He says that we should have raised this in Committee. If we had raised it in Committee he would have said just the same kind of thing as he has said tonight. He would have said that we are trying to wreck the Bill, that we are holding it up. We deliberately did not raise it in Committee for a very good reason. We wanted as full a record as possible of what the Government had to say. That is why we put the Government on notice.

I know it is apparently difficult for the noble Lord to believe the character of our intentions. However, I beseech him to think that he may be wrong on this and that there is a certain genuine case to be made. It may be wrong and it may be found not to be correct on prima facie consideration, but in our belief there is a prima facie case. Having taken some advice, we have chosen what we believe to be the right moment to deal with the matter as expeditiously and as properly as possible.

I am sure that the Government, to whom this matter refers perhaps more than anybody else, will have taken a position on this matter. I hope they will agree that some consideration can be given to the matter other than simply dividing the House. If the Government want to divide the House we shall have to do so. They will no doubt bring in their army and we shall be defeated. But that will be the record in this House and it will be for another place to consider.

Lord Trefgarne

My Lords, I hope I may have your Lordships' permission to speak again. I am surprised that the noble Lord claims he has brought the matter forward now so that it can be fully considered. The way in which this matter should be considered would be for the noble Lord to comply with Standing Orders and put this Motion on the Order Paper. He chose not to do that. Standing Orders are perfectly plain on the matter; I refer the noble Lord to the Companion to the Standing Orders. Page 62 defines the Motions which need not be placed on the Order Paper and I regret to say that the Motion which the noble Lord has moved tonight is not one of them.

Lord Wedderburn of Charlton

My Lords, if the noble Lord refers to page 113 of the Companion to the Standing Orders he will find the following: It is open to any Lord who is of the opinion that a Public Bill is hybrid, or has become hybrid as a result of any amendment made to it, to move that the Bill be referred to the Examiners. Such a motion is usually moved immediately before Second Reading"— That would have been useless because the amendment had not been tabled— but may be moved at any time during the subsequent passage of the Bill". That is what we have done and this really is quite absurd.

Lord Trefgarne

My Lords, I am sorry to disappoint the noble Lord. With the permission of the House, I should like to point out that that does not mean that one can do so without notice. I am something of an expert in this matter because I was very much involved in the considerations in the 1976 Act to which the noble Lord refers. At that time I was sitting on the Benches opposite. We were also anxious to have that Bill referred to the Examiners and we could do so only by means of a Motion placed upon the Order Paper. I remember that most clearly because I also took the advice of the House officials at that time. However—

Lord Wedderburn of Charlton

My Lords, with the leave of the House, the noble Lord may be right. I blame no one, but I inquired as to whether I should give written notice of the Motion. I understand the answer to be not at Report stage as regards an amendment. If that is wrong, I apologise.

Lord Trefgarne

My Lords, the noble Lord has not been moving an amendment. He has been moving a Motion. That is very different. I remain of the view that the noble Lord should have put the matter on the Order Paper if he wished to discuss it. However, the noble Lord has chosen to bring the matter before your Lordships at this moment. I must tell your Lordships that the Government believe that there is no possibility of the Bill being hybrid. We have considered the matter most carefully and have taken even better advice than the noble Lord opposite. On that basis I hope that the House will now reject this absurd Motion.

9.16 p.m.

On Question, That the Bill be referred to the Examiners?

Their Lordships divided: Contents, 28; Not-Contents, 56.

Airedale, L. Parry, L.
Blease, L. Pitt of Hampstead, L.
Dean of Beswick, L. Ponsonby of Shulbrede, L. [Teller.]
Dormand of Easington, L.
Elwyn-Jones, L. Prys-Davies, L.
Graham of Edmonton, L. Rochester, L.
Hanworth, V. Seear, B.
Hooson, L. Taylor of Blackburn, L.
Houghton of Sowerby, L. Turner of Camden, B.
Jeger, B. Underhill, L.
McCarthy, L. Wedderburn of Charlton, L.
Mackie of Benshie, L. White, B.
McNair, L. Winchilsea and Nottingham, E.
Morton of Shuna, L.
Nicol, B. [Teller.] Winstanley, L.
Abinger, L. Hooper, B.
Ampthill, L. Kaberry of Adel, L.
Arran, E. sLayton, L.
Beaverbrook, L. Long, V.
Beltead, L. Lucas of Chilworth, L.
Bessborough, E. Mackay of Clashfern, L.
Blatch, B. Margadale, L.
Boyd-Carpenter, L. Massereene and Ferrard, V.
Brabazon of Tara, L. Mersey, V.
Brougham and Vaux, L. Monk Bretton, L.
Caithness, E. Mottistone, L.
Carnock, L. Mountevans, L.
Carr of Hadley, L. Munster, E.
Cox, B. Napier and Ettrick, L.
Craigmyle, L. Nelson, E.
Davidson, V. [Teller] Radnor, E.
Dundee, E. Renton, L.
Elliott of Morpeth, L. Renwick, L.
Ferrers, E. Saltoun of Abernethy, Ly.
Fortescue, E. Sanderson of Bowden, L.
Gisborough, L. Skelmersdale, L.
Gray of Contin, L. Strange, B.
Greenway, L. Trafford, L.
Harmar-Nicholls, L. Trefgarne, L.
Harvington, L. Trumpington, B.
Hesketh, L. [Teller.] Vaux of Harrowden, L.
Hives, L. Wyatt of Weeford, L.
Hood, V. Zouche of Haryngworth, L.

Reserved in the negative, and Motion disagreed to accordingly.

9.24 p.m.

Lord Trefgarne moved Amendment No. 18: Page 16, line 9, at end insert— ("and references in this section to a person being a member of a trade union's principal executive committee shall be construed, including in relation to a time before the coming into force of this section, in accordance with section 1 of the 1984 Act, as amended by this section.").

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

On Question, amendment agreed to.

Clause 13 [Election addresses:]

Lord Wedderburn of Charlton moved Amendment No. 19: Page 17, line 12, after ("himself") insert ("(b) any person who has written, or assisted in the writing of, a candidate's election address; and (c) a person vicariously liable for such a person,").

The noble Lord said: My Lords, this amendment concerns a small but important point in the new Clause 13 which the Government inserted in Committee regarding election addresses of candidates in union principal executive committee elections. Therefore, it is only the second time that we have been able to consider this clause and it is perhaps right that a point of the kind enshrined in Amendment No. 19 should be made now.

What is unacceptable to my noble friends and myself is the exemption in subsection (5) from civil and criminal liability in respect of publication of a candidate's election address, or a copy of it, as required by the clause. The present subsection states that no person other than the candidate himself shall be liable for any civil or criminal liability at all. In searching through the Minister's introduction of this clause I find no sufficient justification for that subsection.

This is a modest amendment. We suggest that the normal rule of law should apply to the candidate whose address it is, and to, any person who has written, or assisted in the writing of [it]". In addition, and, although this may be a somewhat rare case, it is an important one, it should apply to, a person vicariously liable for such a person". The present exemption from all civil and criminal liability is too wide. It would allow a journalist or some other person to write the address and give it to the candidate for the candidate himself to put forward. For there to be found some liability (be it defamation or any other does not matter) and for the candidate to be liable without even the right to sue, as a third party, the person who had actually written it, we find difficult to understand.

We can see that the clause needs to be drafted in such a way as to keep out of liability the printers and others concerned in the technology of the address, but we believe that some other categories of the kind we have proposed should be considered by the Government between now and Third Reading for insertion in the clause. I beg to move.

Lord Trefgarne

My Lords, I am grateful to the noble Lord for his explanation because we were not altogether clear about what this amendment was intended to achieve. As your Lordships will recall, Clause 13 was added to the Bill during Committee stage in this House and received significant support. It gives candidates in an election to the principal executive committee of a union the right to prepare and have sent with the voting paper an election address.

The Government were anxious, in framing the clause, that no liability for the contents of the address should rest with the union. Subsection (5) therefore provides that only the candidate shall be subject to any civil or criminal liability in respect of election addresses produced and despatched for the purposes of the clause. The Government believe that it should be the candidate's responsibility to ensure that nothing he puts into his address, or that any other person contributes to his address, is libellous or otherwise in breach of the law. It is his address and he alone should be responsible for it.

I am advised that the introduction of vicarious liability into the subsection might, in some circumstances (for example, if the candidate is an employee) lead to the union being held responsible for the contents of the address. I am certain that that is not what the authors of the amendment intended.

The area of civil and criminal liability for the contents of a published text is a complex one. The Government remain convinced that the simplest and fairest approach is to leave the clause as drafted; that is to say, with responsibility for the contents of an election address resting on the candidate's shoulders alone. Therefore, I hope the noble Lord will not press his amendment.

Lord Wedderburn of Charlton

My Lords, I am not going to press the amendment, but I am going to press the Government to think again on one point. I accept that the formulation in paragraph (c) about vicarious liability does not, shall we say, hit the target. The need is to keep the union, the printers and other persons concerned with the address out of liability. That is agreed. It is agreed also that the candidate himself must be liable for such liability as arises from the address, be it defamation or whatever it is. Surely the Government must think again on this practical point, which is important to thousands of ordinary trade unionists who will be standing for office.

To say that liability must be on the shoulders of the candidate and no one else is a very severe proposition. It is not the normal rule of law. We do not have election addresses, but if I wrote a defamatory pamphlet and passed it to the noble Lord, I would be liable for the publication and for any defamation. We may have a candidate who is a man of modest means and perhaps does not understand the finer points of libel that the noble Lord and I understand. A journalist may say, "do not worry about that; I will write it for you". We know such people. The noble Lord knows them and I know them. Some of them perhaps haunt the Palace of Westminster. The candidate may put the article in, in all good faith, and then find that it is grossly defamatory. Surely the journalist must be liable.

This is a simple practical point and not a matter of principle. The noble Lord is saying that the candidate must go off to a legal adviser and have it vetted because that is the only way. The noble Lord knows very well how difficult it is to know whether a tough election address contains defamation. We all know that. This puts on the shoulders of ordinary trade unionists who want to stand for office the burden of going to lawyers every time they think there is a problem. It is just not fair. At least they should have this right. They should know that anyone who has led them innocently into publishing something which is defamatory will be equally liable with them. I will tell the noble Lord why that is so. In a situation of being, as they would be, joint tortfeasors, the candidate could then claim over against the party who was more at fault than he. In such a case it would obviously be the journalist. I do not want to cast the journalist in a nasty role; it applies to whoever is involved.

I beg leave to withdraw the amendment but I hope the Government will think about the second category in this amendment. It is a very serious matter and it will arise again and again in the case of those who suggest items for candidates to put in. I hope that the Government will come back with something on Third Reading.

Amendment, by leave, withdrawn.

Clause 15 [Independent Scrutiny of certain ballots and elections]:

9.30 p.m.

[Amendment No. 20 not moved.]

The Earl of Dundee moved Amendment No. 21: Page 18, line 31, leave out from ("person") to ("are") in line 32 and insert ("who supervises the production and distribution, for the purposes of the ballot or election, of all the voting papers and the person to whom those voting papers").

The noble Earl said: With your Lordships' leave, I shall speak to Amendment No. 22 as well as to Amendment No. 21.

When we discussed the amendment of the noble Lord, Lord Wyatt of Weeford, in Committee, I undertook to consider whether it would be practicable to require the scrutineer to despatch voting papers. We have duly considered this and the government amendment represents the outcome of that deliberation. The noble Lord, Lord Wyatt of Weeford, very kindly came between the last stage and now to discuss the matter with my right honourable friend the Minister of State. I think that he accepts the Government's position. He may agree therefore not to move his own amendment.

The Government amendment represents a tightening-up of the scrutiny provisions, in that, on the face of the Bill, it will be apparent that the scrutineer is required to supervise the production of voting papers and their despatch. Unions will, of course, continue to be free to opt for the scrutineer actually to print and despatch voting papers. If they do not do so, and choose instead to print and despatch them themselves, then they will do so in the clear knowledge that the scrutineer will be supervising the union's actions and will be required to report on them. I commend the amendment to the House, and, although I began by saying that I intended speaking also to Amendment No. 22, perhaps I should allow the noble Lord, Lord Wyatt of Weeford, to decide what he will do.

Lord Wyatt of Weeford

My Lords, of course I prefer the wording of Amendment No. 22. It would have placed the obligation for the production and distribution of the ballot papers more squarely on the Independent scrutineer. However, I am grateful to the Government for having considered the point carefully. A greater power has now been given to the independent scrutineer. Combined with his duty under subsection (5)(e) and subsection (6)(b) of Clause 15 to make a report confirming that everything has been printed, counted and distributed properly, that ought to make it fairly watertight. I cannot imagine any professional person making a report to the union that in some way was false.

Can the Government say how the independent scrutineers are to be chosen? It is of vital importance that they have no links—political, financial or otherwise—with the unions for whom they will act as independent scrutineers. The independent scrutineer must be fully and truly independent of all connection with the unions. Also, now that we have the appointment of an independent scrutineer with statutory obligations, who will pay for his services? The Government pay for the postage and printing of ballot papers, but I can find no indication of who is to pay for the independent scrutineer. If he is to be a highly competent professionally qualified person, I think that the Government should pay. The union did not ask for him in the first place, and I do not see why they should have to pay for such a person.

Lord McCarthy

My Lords, the trouble with the noble Lord, Lord Wyatt of Weeford, is that every now and again he tries to be fair. We know who will pay for the scrutineer: it will be the union. The union will not get the money back because it gets only half the money back now.

I have examined the amendments carefully but I cannot see the difference between the amendment of the noble Lord, Lord Wyatt of Weeford, and the Government's amendment. I wish that the Government would accept my amendments by putting down amendments like the one now under discussion. Amendment No. 22 reads, by whom all voting papers for the purposes of the ballot or election are to be supervised as to their printing and are distributed to those voting and to whom". Amendment No. 21 reads, who supervises the production and distribution". We do not like either amendment, of course. As the noble Lord, Lord Wyatt of Weeford, rightly says, the independent scrutineer has been foisted upon the trade union movement. We never asked for him and we cannot see the point of him.

Under the Bill the scrutineer already has considerable powers. He receives the votes. He counts and reports on the votes. He decides as to the number of the votes—the number returned, the number valid, the number spoiled, the number for the various candidates and therefore who wins—and he reports on whether he is satisfied. How much further does the scrutineer need to control the results?

With the aid of an efficient and up-to-date electoral roll, he will know everything he can possibly want to know. If a union fiddles the ballot a scrutineer with his wits about him, and with the aid of an up-to-date electoral roll, will know. If supporters of certain candidates stuff the boxes with Mickey Mouse votes the names will not be on the roll. As long as the scrutineer has an up-to-date roll, he will disregard them. The names of dead men could be on the roll. But if the union has managed to fiddle the roll so that there are dead men on it, the scrutineer will not know even if he has the powers granted by the amendment.

Those who fiddle the ballot may purloin the papers or substitute false papers. If those people are on the roll, the scrutineer will have to accept them unless he tries to see everybody who has voted. In the real world the scrutineer has all the powers he requires as long as he has an up-to-date roll. If one wanted to give him more powers one would have to make him live in the union like a policeman. He would have to police the roll and go out and check up that the people on the roll were not Mickey Mouse names who had been dead for years.

It will cost thousands of pounds. It already costs thousands of pounds. The Royal College of Nursing uses the provisions of the 1980 Act. It does a good deal of balloting but it gets back only about 50 per cent. of the money. It will be extremely expensive. We know that the scrutineers will be officers of the Electoral Reform Society. It is a good society but it is very expensive. It will charge by the day. That may be what it is all about.

Lord Rochester

My Lords, from these Benches I should like to remind the House that for long we have advocated that trade unions should use full secret postal ballot procedures in electing members of their principal executive committees. It should be done under independent supervision, and that independent supervision should extend to the distribution as well as to the receipt and counting of the ballot papers. We are glad that with this amendment the Government have at last come round to the same view and are happy that this independent supervision should also include the production of ballot papers.

Having said that, I too am interested in the point raised by the noble Lord, Lord Wyatt of Weeford, and should like to know how the scrutineers will be appointed. More particularly, I am interested in the question of payment. On earlier occasions I have made the point that having independently supervised elections is a costly business. I have sought, and to the best of my recollection obtained, assurances that the expenditure may be covered, very largely at any rate, under Section 1 of the 1980 Act. I am sorry that I have not been able to give notice of this point to the Minister, but I wonder whether he can confirm that, in relation to expenditure now to be incurred under independent supervision, payment can be made from public funds by an extension, as it were, of Section 1 of the 1980 Act. If he cannot confirm it tonight, will he undertake to consider that point between now and Third Reading?

9.45 p.m.

Baroness Blatch

My Lords, this is the first public opportunity I have had this afternoon to stand up and make an apology to the House for having done something which almost marks my anniversary in this Chamber. I made the mistake of walking through the wrong Lobby on an amendment earlier on. The significance of that is that the amendment in question was Amendment No. 1, which as I understand it succeeded with a majority of only three.

However, I should now like to speak to this amendment. First, I welcome the Government's alternative wording and reiterate the concerns of the noble Lord, Lord Wyatt of Weeford, in that the scrutineer must be independent. I must say that I am disappointed in what the noble Lord, Lord McCarthy, has said because I hoped that all Members of your Lordships' House would want the overseeing of the exercise of secret ballots from start to finish. I know that there will be screams of, "Where is your proof?". But I think that there are enough question marks over what can go wrong at the issuing of ballot papers. I should remind the House of a phrase that was used in the previous debate—"ballot paper-stamping parties"—and there are similar other accusations. Surely it would be in everyone's interest to see that the exercise was overseen from start to finish.

Baroness Turner of Camden

My Lords, is the noble Baroness not aware that as regards ballot paper-stamping parties accusations there have already been retractions published in the newspapers?

Baroness Blatch

My Lords, yes, I am aware of that. However, what I am saying is that there is a perception abroad that all is not well. Therefore to have this exercise overseen will surely do away with any such suspicions about what may happen in those circumstances. It is only right that there should be proper scrutiny from the start of the exercise right up until the finish. In that way any doubts that people may have will be swept away.

However, there is another significant point which needs to be made. I should again have thought it in everyone's interest, including that of the noble Lord, Lord McCarthy, to see that the individual wishes of all members of trade unions are properly reflected in the result. If the exercise is properly overseen from the printing and production of the ballot papers, their issuing and allocation and finally counting, we shall be closer to reflecting properly the individual wishes of all trade union members. Surely that would be in everyone's interest.

I turn to the point about the costs of the exercise amounting to thousands of pounds. We might reflect for a moment on the costs that would be incurred should we get it wrong and the sometimes erroneous results that may arise from tampering with ballot papers. The cost to the country and to many union members can be very great indeed. I believe that the cost of the exercise, wherever it falls, is fully justified.

Lord McCarthy

My Lords, will the noble Baroness admit that it is not a matter of people merely making remarks? For example, the Sun quite specifically had a report relating to nine members of the Transport and General Workers' Union and the way they fiddled the ballot, as a result of which it has had to pay them £100,000 in damages; those are the facts.

Baroness Blatch

My Lords, my concern is not only that the exercise should be done properly but that it should be seen to be done properly. The amendment is about seeing that it is performed properly.

The Earl of Dundee

My Lords, I should like to respond to a couple of points raised by the noble Lords, Lord Wyatt of Weeford and Lord Rochester. First, they asked me how it is that the scrutineer is paid, and the noble Lord, Lord McCarthy, reminded the House that such a scrutineer is paid by the unions. Indeed, as many noble Lords will be aware, some unions already voluntarily pay for scrutineers when they choose to appoint them.

Secondly, the noble Lords, Lord Wyatt of Weeford and Lord Rochester, asked me about the procedure for choosing such scrutineers. I should like to draw their attention to Clause 15(3)(a), which provides that scrutineers must satisfy the requirements to be specified by the Secretary of State. I should also draw their attention to subsection (2)(b) in the same clause, which provides that the scrutineer must be seen to be independent of the union.

The noble Lord, Lord Rochester, asked whether the Government were prepared to contribute public funds towards the cost of the scrutineer. The Government's position at present is that we do not feel that the case has been made out to that effect.

On Question, amendment agreed to.

[Amendment No. 22 not moved.]

The Earl of Dundee moved Amendment No. 23:

Page 20, line 3, at end insert— ("(8) Section 6A of the 1913 Act (application of sections 3 to 6 of that Act to employers' associations) shall apply to the provisions of this section, in so far as they relate to the requirements mentioned in subsection (1)(a) above, as it applies to sections 3 to 6 of, and the Schedule to, that Act.").

The noble Earl said: My Lords, for the convenience of the House I shall speak also to Amendments Nos. 24 and 60. These are technical amendments which are necessary for consistency with earlier legislation. The provisions which presently govern political fund ballots, contained in the Trade Union Acts of 1913 and 1984, apply to unincorporated employers' associations just as they apply to trade unions. The amendments ensure that Clauses 15 and 16 will similarly apply. The amendment to Schedule 3 corrects an oversight in the drafting of the 1984 Act which leaves trade unions and unincorporated employers' associations in a different position in one respect. I beg to move.

On Question, amendment agreed to.

Clause 16 [Remedy with respect to ballot on use of funds for political purposes]:

The Earl of Dundeee moved Amendment No. 24:

Page 20, line 45, at end insert— ("(5) Section 6A of the 1913 Act (application of sections 3 to 6 of that Act to employers' associations) shall apply to this section as it applies to sections 3 to 6 of, and the Schedule to, that Act.").

On Question, amendment agreed to.

Clause 17 [Ballots on industrial action affecting different places of work]:

Lord McCarthy moved Amendment No. 25: Page 21, line 27, after ("member") insert ("or have an employer who is an associated employer of that employer within the meaning of the 1974 Act").

The noble Lord said: This amendment introduces an additional exclusion to the general need in Clause 17 to have separate ballots at each place of work. Your Lordships will remember that although Clause 17 provides for unions to have a separate ballot at each place of work, it provides in certain circumstances for a number of exceptions. We are trying to add to the number of exceptions. The clause clearly says that one of the exceptions is where all the workers involved in the strike have the same employer. We are trying to add the requirement that there should be one ballot if the workers are all in the employ of an associated employer. The definition of an associated employer, as we make clear in the amendment, comes from Section 30(5) of the Trade Union and Labour Relations Act 1974. It provides: For the purposes of this Act any two employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control; and in this Act "associated employer" shall be construed accordingly"; in other words, if the company is a subsidiary of a larger company. In effect, it is one employer; but the employer, if he wishes, can divide up his companies or his sub-companies into sub-sub-companies. If he is free to do that—on the face of the Bill he is free to do that—we could have an equivalent to the fear that the noble Lord, Lord Trefgarne, had when we discussed other parts of this clause; that is to say, that the unions would strategically alter the boundaries of the bargaining unit so as to bring in those groups that they wanted to bring in and leave out those that they did not want to bring in so as to obtain the right answer.

If the employer were free to create subsidiaries, to say that the employer was not the same and to force the union to have separate ballots, there would be a reciprocal device on his side much more easily available to him, because, as I tried to suggest in Committee, if one wants to change bargaining units one has to get the employer to agree; but if the employer wants to change the framework of his organisation, he does not have to get the union to agree. He can change the framework of his organisation. He could render primary action secondary action, and at the same time he could necessitate the union having more than one ballot.

We suggest that if the Government genuinely mean the same employer, they should mean the same employer, and the same employer is in fact the same employer, but he has a series of subsidiaries. It is true that they rejected an amendment which we put down in Committee and which tried to bring in more than one employer. This was our amendment which talked about a bargaining unit. One of the arguments which the Government made against that amendment was that although on the one hand they said it was very similar to their clause, which we found to be meaningless, nevertheless it was clearly a multi-employer amendment, or would be if passed, and they were not at all clear that they wanted to include more than one employer in the ballot. This has the advantage of being absolutely clear.

All we are saying now is that if it is truly one employer—because the employer has a number of subsidiaries—if the union wishes to do so it should be able to hold a ballot across the whole of that employer, because that is what it is—one employer. I beg to move.

Lord Trefgarne

My Lords, it is possible that the amendment as drafted will have an opposite effect to that intended. Subsections (1B)(b)(ii) and (iii) must be taken together. It is not clear how the amendment to paragraph (b)(ii) affects the definition of "employer" in paragraph (b)(iii), but it is likely that the same interpretation would apply to both. The effect would be that a union would be required to hold separate ballots for each workplace where the balloting constituency consisted of members employed by one employer who have a common distinguishing factor if there were any members employed by an associated employer who also shared the common factor but were not entitled to vote. The effect of the amendment would therefore be to limit the scope of the exceptions provided by the subsection.

To put the point another way, in considering whether the balloting constituency was such as to avoid the separate balloting requirement a union would have to consider for each member voting not only whether the relevant requirement was shared by other members employed by the same employer but also whether it was shared by any other members employed by an associated employer; that is, the test would be harder to satisfy.

If the concern is that unions will not be able to aggregate votes across associated employers—and the noble Lord referred to that—the amendment is simply unnecessary. As the clause stands, aggregation of votes across employers is possible provided that the conditions of the clause are satisfied in relation to each member in the balloting constituency.

In relation to the subsection covered by the amendment, this means that separate ballots will not be required where the balloting constituency includes members employed by a number of employers if entitlement to vote is given to every member of the union employed by any one employer who shares an appropriate, common distinguishing factor with other members in the balloting constituency employed by that employer and does not share with any member employed by that employer who is not in the constituency. The common factor which distinguishes the group of members employed by one employer need not be the same factor used to distinguish the members employed by a second employer from those who are not entitled to vote.

I am sure the noble Lord will agree that that clarifies the matter beyond peradventure and that he will feel able not to press his amendment.

10 p.m.

Lord Wedderburn of Charlton

My Lords, before the noble Lord sits down, now that he has clarified the situation perhaps I may ask him two questions. Is it not the case that the argument which is deployed against this amendment is precisely the same argument as was deployed against a different amendment in another place, and in Committee in this place? Is it not misjudged in respect of this amendment, which is different from the ones ich preceded it? Is it not the case that this amendment, by entering the words on the Marshalled List at the end of sub-paragraph (ii) in subsection (1B)(b)(ii), would give the union the option whether to couch the balloting constituency either in the one employer unit or in the employer plus his associated company or associated companies? What it does in this formulation, as opposed to the formulation which it took in previous amendments where the Government were right to say that it might limit the union, is to permit rather than to demand. Surely the Government should think again.

The matter I am about to mention is very important. It is the employer who controls whether or not there is more than one employer. If the employer wants to set up six subsidiaries, then there are seven employers with the holding company. This is a very important matter to trade unions. This amendment which came in quite late in another place—it is what we prefer to call the bargaining unit exception to the separate workplace ballots—will be the one on which the viability and the mere practicability of this whole arrangement turns. Therefore it is very important that the language should be right and even more intelligible than it is.

As I understand the noble Lord, he has said that paragraph (b)(ii) states that the member at whom we are looking—that is the member entitled to vote—has a factor, in common with some or all of the other members of the union who are accorded that entitlement and have the same employer as that member". I have to use the language of the Bill although I wish it could be otherwise. Because the common factor need not be the same factor linking all the members of the balloting constituency in the bargaining unit, the bargaining unit can turn out to have employees on one aggregated majority and not on separate workplace majorities with different employers.

I say to the noble Lord that I do not believe that that is the better construction and interpretation of paragraph (b)(ii). I see his argument that it is a possible interpretation. I beg the Government to reconsider the language here because I do not believe that it is the interpretation that the courts will put upon it. I put to the Minister this straight question. If his interpretation of paragraph (ii) is what the Government want—and it is certainly what we would consider to be the more sensible arrangement if this kind of thing is to exist—why not get rid of the words: and have the same employer"? If one can aggregate workers who have common factors in their terms of employment one could apply the same principle to this House. We might have a few common factors with the Liberal Benches. We might even have the odd common factor with the Government Benches just now and again. Therefore we would all get in the same bargaining unit. If that is so and it does not matter how many different employers there are, what is the function of the words, and have the same employer as that member"? Why have the words there at all if one can have different employers?

Most people and, I believe, most managements are taking this paragraph to mean that the union can only go as wide as employment within the one employer unit. That is the common interpretation. If it is not the right interpretation, will the Government consider this matter? This is a plea for understanding before we get into the new rules of the new game. Why not remove the words that I have mentioned? What is their function if what the noble Lord says is what we both want? I do not see that there is any need for them. Will he think about that?

Lord Trefgarne

My Lords, with your Lordships' permission I shall speak again. I recognise that these are matters of high legal interpretation. The Government remain very much of the view that the interpretation that I have advanced is correct and that the difficulties which I see with the amendment exist. Indeed if the concern in the mind of the noble Lord is the possibility of an employer sub-dividing his workforce by, for example, hiving off activities to associated employers, then the easier he makes it by this provision for the union to satisfy the tests which give exemption from the separate balloting requirement. If, however, the noble Lord wishes me to consider further whether we have got the wording right, I shall happily do that between now and the next stage but not with any commitment that we shall bring forward any change.

Lord McCarthy

My Lords, the noble Lord uncovers a distinct difference in emphasis between myself and the noble Lord, Lord Wedderburn of Charlton. It seems to me that every time we turn to this part of the Bill, it is impossible for anyone to speak sense. It is gibberish from start to finish. It is gibberish and no one can make any sense of it. Our amendment is trying to make sense of it. We say we should put something sensible in and say: an employer who is an associated employer". We know what that means. We know what it means because it is clearly defined in the 1974 Act. If we put in the words "associated employer", we shall have taken out a bit of gibberish and put in a bit of sense.

The noble Lord says: "You are making it worse". It is always possible to say that we are making it worse if we fall back on the gibberish. We say that—

Lord Mottistone

My Lords, perhaps the noble Lord will allow me to intervene for a moment. As I understand it, only one person should speak after the Minister speaks at Report stage of a Bill. We have heard the noble Lord, Lord Wedderburn.

Lord Wedderhurn of Charlton

I asked a question.

Lord Mottistone

It was a long question.

Lord Wedderburn of Charlton

Yes, it was.

Lord Mottistone

That is carrying it a bit too far. That double act which involved an enormously long question is against the spirit of what was sought in terms of expediting Report stages of Bills.

Lord McCarthy

My Lords, I understand what the noble Lord says. I believe that his criticism, whether or not it is valid, should be directed at my noble friend. I am telling the House whether I accept the Government's answer and whether I wish to divide the House on my amendment. I believe that even under the modified rules I should be entitled to do that.

Lord Mottistone

Please do it quickly.

Lord McCarthy

I shall do it as quickly as I can, my Lords. I wish that the issues were simple. However, the more I am interrupted, the longer I shall take.

The Minister has said: "You are making it worse". If we fall back on gibberish and say that it is wider than the clearly specific words "associated employer", we can say that it is being made worse. However, the Minister knows what we wish to do. We wish to make it better. We wish to allow unions to use an associated employer as the basis for one ballot. If he thinks that our words are not clear, he can give us other words. He can accept the principle. He has done that before.

The second point is that the Minister says: "You can leave the gibberish alone and I shall tell you what it means". The fact is that no one can tell us what it means. The Government continually give interpretations of subsection (1B)(b)(ii). They say that those interpretations are wider than our amendments and wider than a single employer. However, as I have said before, we cannot get that out of the words. I shall not divide the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton moved Amendment No. 26:

Page 21, line 38, at end insert— ("(1C) Subsections (1A) and (1B) above shall be disregarded in the application of this section to section 1 of the Employment Act 1988.").

The noble Lord said: My Lords, the amendment raises an issue which I believe was not raised at Committee stage, other than inferentially. We raise it on Clause 17, having not moved an amendment on Clause 1. In saying that, I disclose to your Lordships that the amendment concerns the interrelationship of Clause 17 on separate majorities and separate workplace ballots, and Clause 1 on the right of the union member to demand a ballot in all cases of industrial action or obtain an order from the court to ensure that the union controls the conduct of its members.

As I understand it, the Government's method of amending Section 11 would apply separate workplace ballots to the Clause 1 ballots as well as to what I might call the 1984 Act ballots. They are very different. As we have seen, the union member does not have to prove any prima facie case of a tort or breach of employment contract, whereas the employer does. In other words, although the questions are the same, on the Government's construction of the Bill after the rewrite at the Committee stage, there is no presumption that any particular rule should apply to the Clause 1 ballot as well as to the 1984 employer ballot, or to both.

The separate workplace majority and separate workplace ballot provided for in Clause 17 (as it now is) have been discussed very largely in terms of the employer enforcing a ballot or obtaining injunctions against industrial action if no such ballot has been held. If I am right in thinking that this would also apply to Clause 1, the Government should perhaps explain why there is a need for a separate workplace majority rule for ballots demanded by a member. The union member may or may not see the position that way.

I can understand that a union member may demand a ballot in the face of industrial action—and after today's debate we know how wide that category is—and may say that he wants everyone to vote. He may think that he will do better that way. Alternatively, he may say that he just wants a ballot at his own workplace. I do not know that there is a presumption either way. Since the Government believe in individual choice, perhaps they should give him the option, although plainly there would be arguments against that.

If it be right, I want to know the reason for applying separate workplace ballots in the totality of the rule to the Clause 1 union member enforced ballot. Indeed, should the exceptions be the same? Have the Government given any thought to whether there should be different exceptions?

As we have seen in what my noble friend Lord McCarthy calls the "gibberish exception" (and I do not disagree with his analysis of the language though sometimes we make different efforts to try to find some sense in it), or the bargaining unit section as it should be termed if it were written in English, not law, the bargaining unit exception is plainly directed towards the employer's situation. If the employer is to enforce a ballot it makes a great deal of sense to have a ballot across the whole bargaining unit rather than separate workplace ballots and separate majority rules. There is at least some glimmer of sense in that. It does not necessarily follow that it should be the case in Clause 1.

Perhaps the Government thought of doing that in both cases because they could not think of anything else. It could be that that is the best rule, but I am not sure if we can accept that. I should like to move the amendment in those questioning terms, probing at an issue which I think has not been before your Lordships, and see what the Government's response will be. I beg to move.

The Earl of Dundee

My Lords, the amendments, if accepted, would deprive a union member of the ability to apply to the court to complain that his union was inducing or was likely to induce him and others to take industrial action without holding a ballot which satisfied the requirements in what will be the new Sections 11(1A) and (1B) of the 1984 Act.

The amendments could thus result in instances where a union had held a ballot whose conduct and result protected it against challenge by a member under Clause 1, but which was not sufficient to preserve its immunity from a legal action brought by an employer under Section 10 of the 1984 Act. That is undesirable in itself.

The member's right to restrain his union from inducing him and others to take industrial action without support from a proper ballot—and I stress the word "proper"—is as important as an employer's right to take an action in tort if a union induces its members to breach or interfere with the performance of employment contracts.

A union member may feel particularly aggrieved—and rightly so—if his union has manipulated or is likely to seek to manipulate the result of a ballot on selective industrial action by aggregating the votes of members in his workplace with those of others on any basis which does not satisfy the conditions which will be set out in the new Section 11(1B). That is what the Bill currently provides, and what the amendments would remove.

In answer to the noble Lord, Lord Wedderburn, I hope that those few remarks may be of some assistance.

10.15 p.m.

Lord Wedderburn of Charlton

My Lords, I think that it is a great pity that the Government will not think a little more about this question. It is argued that to get rid of the new provisions in Clause 17 which amend Section 11 of the 1984 Act for the purposes of Clause 1 ballots—if I may call them that—would deprive the member of the advantage of having separate ballots and separate majorities in separate workplaces.

He may not want that. Who said he wants it? The real reason why it is applied to both is that until 3rd March nobody conceived that the basis of the ballots and the legal rules in the employer-enforced ballot of the 1984 Act as amended and Clause 1 of this Bill would be different. They were the same. We heard that this evening. They were both based on a case of the proof of the tort of inducing breach of contract or of interference with a contract. They were the same rules for both.

So of course the Government applied this curious notion which in any case they have never properly explained. They have never explained why they wanted separate workplace ballots. If they wanted to deal with selective balloting—if it existed and it does not seem to have done—it would not have been done by means of this kind of mechanism. It is the most curious provision of labour law ever put on the statute book.

If one has ballots which are based on the same legal rules of the law of tort in Clause 1 and in the 1984 Act, then automatically, because one cannot do anything else, one applies the provisions to both of them. The Government however have drawn back from doing that. The rules in Clause 1 are totally different from the rules in the 1984 Act. They cover all kinds of industrial action. Whether it is breach of contract or whether there is a tort—it does not matter—the union member does not get the ordinary kind of injunction. He gets a special order ordering the union to ensure that the members stop any conduct which results from the inducement, not just industrial action. All that has been explained to us. It is very different.

I ask the Government why having introduced that difference they are forcing the individual union member to have separate workplace ballots which he may not want. The Government care about the individual union member only as it suits them. However, I tell them again that this is a further piece of evidence for an analysis of these measures—the May 3rd measures, as they may become known.

Of course it makes sense if the union-member ballot mentioned in Clause 1 is a swallow for the summer of the employer-enforced ballot or the employer's attitude and manoeuvring under the 1984 Act. One has the ballot in the same way as the employer could have enforced it, so that the employer can see the result without having the odium, the difficulty or even the inconvenience of demanding the ballot. That is the reason. But the Government will not have any logic behind the application and will not be able to say—and I should like to press this point—that they are putting the question to individual union members in their interests and for their choice, because there will be many situations in which the union member will say, "I want a ballot" and he will not think simply of his own place of work as it is defined in this section, which is extremely narrow; he will be thinking of a number of workplaces—not many perhaps, maybe only two or three—and will want a common vote. But he will not get it.

If the Government want to leave the matter there, that is fine, but if they do, the main function of the rule will be to give the employer or third party another way of setting up a ballot without doing it themselves. That is how it will be seen and that is how it will operate. I beg to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mottistone moved Amendment No. 27: Page 22, line 14, leave out ("definition") and insert ("definitions").

The noble Lord said: My Lords, one effect of Clause 17 will be to limit the ability of trade unions when organising a strike ballot covering employees with different places of work to do so in a manner designed to achieve an artificially favourable result by selecting from a number of workplaces those which will be most likely to produce a favourable vote when aggregated together.

The definition of "place of work" for the purpose of these new requirements is contained in subsection (3) of the clause. I shall speak to my Amendments Nos. 27 and 28 together. Amendment No. 28 is the substantive amendment and Amendment No. 27 is consequential upon it.

Amendment No. 28 makes clear that an individual ship is not regarded as a separate place of work for these purposes. That is considered to be a true reflection of the shipping industry's employment practice. For example, the ferry sector of the industry, which is one of the most vulnerable to industrial action, generally operates in a manner that suggests that a company fleet or section of a fleet operating from a particular port is the unit which compares with the shore establishment in a typical shore-based industry. In many cases seafarers are signed on on collective crew agreements so that their employment may be interchangeable within the company's ships operating from a specified port. In addition, because of crew rosters more than half the workforce may be at home on leave and not working on a particular ship at the time of the ballot. There is therefore everything to be said for making it clear that an individual ship is not regarded as a separate place of work.

The General Council of British Shipping is advising me on this point. It has been informed by the Department of Employment that this definition as drafted at the moment is intended to exclude an individual ship. However, the council's legal advisers believe that the clause as drafted could be interpreted to include an individual ship as a place of work. This amendment arises for the first time at this stage of the Bill because discussions with legal advisers have been taking place in the meantime.

It is quite important that the general council's legal advisers should have regard paid to their advice because they are used to dealing with shipping problems in a way that perhaps the Department of Employment is not. The GCBS believes that it is essential that this point should be clarified within the Bill. Otherwise shipping companies will be unable to develop effective industrial relations strategies for dealing with the situation contemplated in the legislation and unions may be encouraged to manipulate ballots and to use divisive tactics. In particular, companies will be reluctant to seek redress in the courts when they believe that the strike ballot provisions have been abused if the outcome of any such action is uncertain.

I very much hope that the Government will accept this small amendment. I cannot see that it does any harm to the Bill but it has the great benefit of clarifying this point, which is of great importance to the shipping industry. I beg to move.

Lord Wedderburn of Charlton

My Lords, on these Benches we support the amendment and appreciate that the noble Lord is putting it forward at this difficult time in the industry. I am sure that it is not put forward simply as an employer's amendment. It is in nobody's interest to have the matter as obscure as it is in the Bill at the moment. Either the ship is a place of work as a definition or it is left as a no-man's land—and the courts will not decide that.

I am not surprised at the legal advice given by the shipowners' council. It seems sensible to have some clarity in this matter. The suggestion that the noble Lord puts forward seems a sensible way to proceed. It would not give an advantage to the unions. I am not sure that it would give the advantage to the employers that he suggests. It would produce some clarity for a basis from which the parties could proceed constructively in the future. Everything militates against obscurity. We support the amendment for that reason.

Lord Trefgarne

My Lords, the formulation of the relevant subsection of Clause 17 creates a firm link between "place of work" for the purposes of the clause and the term "premises". The term "premises" is however left undefined, as is also the case, for example, in Section 15(2) of the Trade Union and Labour Relations Act 1974 in connection with the determination of a person's "place of work" in certain circumstances related to picketing.

Legal advice is that "premises" as used in Clause 17(3) cannot as it stands be taken to include a ship. This would render the amendments unnecessary. Given this advice, I do not believe that the courts would take the view that for the purposes of the clause as it stands a person's place of work could be a ship or vessel.

However, in addition, the specific exclusion of ships or vessels might well imply that other movable structures—aircraft for instance—were included in the definition. Your Lordships will understand that there would certainly be the potential for considerable confusion if these amendments were to be accepted.

The clause as drafted I believe covers the point which the amendments seek to address and I hope, therefore, that my noble friend will be prepared not to press his amendment.

Lord Mottistone

My Lords, I might not have been, but I was so alarmed at the support from the noble Lord, Lord Wedderburn, that I can only imagine that there must be something greatly flawed in the amendment on behalf of the employers in the shipping industry. That weakens my enthusiasm for the amendment right from the word go. However, I think my noble friend's answer was absolutely hopeless. Who on earth will assume that it applies to aircraft when it says "ship or vessel"? A ship is a ship is a ship. I suppose if he had said "hovercraft" that would be a different matter, because nobody quite knows what that is, though I believe we have tried to define it in law.

However, it comes down to the fact that the lawyers of the General Council of British Shipping have one view and the Government's lawyers have another. I must confess that I think it is more likely that the shipping industry's lawyers know about ships. However, I cannot expect the Government's lawyers to accept that lying down because they never accept anything if it criticises them. There is no point in pressing the amendment. However, I have managed to move it all in a minute and a half wheareas the noble Lord took five for his wind-up, so perhaps I am saving time.

This is not an amendment that one can readily press at this stage. I hope the provision works and I hope that the shipping industry will not suffer as a result of what my noble friend has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 28 not moved.]

Clause 19 [Appointment etc. of the Commissioner]:

Lord McCarthy moved Amendment No. 29: Page 22, line 34, at end insert ("and who shall be a person suitably qualified in, and with experience of, trade union affairs.").

The noble Lord said: My Lords, this is another of our minimalist amendments. We are concerned now with Clause 19, and the appointment of CROTUM, the Commissioner for the Rights of Trade Union Members. The amendment provides for the qualifications of the commissioner. It is interesting that the Bill says virtually nothing about the qualifications of the commissioner. We are told that: The Secretary of State shall appoint an officer to be known as the Commissioner for the Rights of Trade Union Members". We are told: Neither the Commissioner nor any member of his staff shall, in his capacity as such, be regarded as a servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown". That is what he is not to be. We are concerned with what he is to be. The amendment states that he shall be a person, suitably qualified in, and with experience of, trade union affairs".

This amendment we put on the Marshalled List at Committee but there was no time to move it. We are moving it partly as a probing amendment because we have had some experience of the Government by now and we know the kind of action they take towards our amendments. We always like to be agreeably surprised, however, and surely the Government should be prepared to tell us, if not upon the face of the Bill—though I do not see why not—what the qualities of the commissioner and his qualifications are to be. He is to carry out a very large number of functions, all of which are set out in Schedule 1 and Clause 20. He will have the power to foster litigation against trade unions, if that is what he wants to do. He could encourage out of court settlements by conciliation between the parties if that was his way of thinking. He could be liked by the trade union movement. He could be suffered by the trade union movement or he could be detested.

Surely, if the Government are serious (as they say they are from time to time) about wanting, in order to keep trade unions clean and straight but not to suffocate them at one and the same time and not to increase the already significant hostility between themselves and trade unions, to set up bodies such as CROTUM, they should be very sensitive about the man or woman whom they appoint. Surely, some experience of trade union affairs would help. I am not saying that there must be a retired general secretary, although I do not see why there should not be a retired general secretary of the Trades Union Congress in this House. I am not saying that one must obtain people who have had a lifetime of experience in the trade union movement. There are many respected middle-of-the-road people but one hesitates to mention their names because that may finish them. There are people such as Sir Pat Lowry and Sir John Wood. There are all kinds of people in the middle of industry who have had great experience on both sides in dealing with trade unions. If such people, or others like them, were to be appointed as the commissioner, that would be accepted, I believe, by the trade union movement. At least there would be a chance that the appointment would come to be accepted by the movement.

In putting forward our amendment we ask: why should the commissioner not be a person suitably qualified in, and with experience of, trade union affairs? We are saying, "Please tell us what kind of person you would like the commissioner to be and why you cannot put on the face of the Bill something more definite about his qualities, qualifications and experience." I beg to move.

10.30 p.m.

Lord Trefgarne

My Lords, the arrangements for the appointment to be made by the Secretary of State are entirely consistent with the normal practice for making appointments to non-departmental public bodies. The appointment can be expected to proceed in the usual way and to involve consultation between the Secretary of State and his colleagues. The public appointments unit of the Cabinet Office will be involved, as set out in the published Cabinet Office/Treasury Guide to Departments on Non-Departmental Public Bodies. No doubt the Department of Employment will also be consulting its own records to see whether suitable candidates for ministerial consideration can be identified.

The Secretary of State will clearly want to appoint someone who can properly carry out the functions and exercise the powers of the office. Such a person might or might not have experience of trade union affairs.

It is difficult to know what being "qualified in trade union affairs" would actually mean. I doubt whether it would really be so valuable a guideline to help the Secretary of State identify the best candidate that every other consideration should be subordinated to it, as the amendment proposes.

Noble Lords should have confidence in the Secretary of State's ability to identify the right qualities and experience that a person appointed as commissioner will need. The amendment would not help ensure that the right appointment was made. Therefore, I hope that the noble Lord will not press it.

Lord McCarthy

My Lords, we are not surprised. The noble Lord says that it is consistent with normal practice. In other words, "You will never know who you will get until we find one of us and then you get him". We have never said (why should we?) that we are ruling out other considerations. Of course we are not. We are saying that one of the considerations might be experience in trade union affairs as against ignorance of trade union affairs. The Minister is suggesting that ignorance is perhaps a better way than knowledge. He then says, "Although we prefer ignorance to knowledge, and although we cannot tell you anything about it, you ought to have confidence in us". That is not possible; but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 [Assistance by the Commissioner]:

Lord Wedderburn of Charlton moved Amendment No. 30: Page 24, line 21, after ("union") insert ("or any other person against whom a member of a trade union claims by virtue of his rights in connection with his membership of, or activities relating to, that union").

The noble Lord said: My Lords, this amendment deals with the functions of the commissioner. Although it is not a mandatory addition to his task, it would add to subsection (7) on page 24 the possibility of a slight extension to carry out the job which the Government have always described as being his job and his task—that is, the protection of trade union members in respect of their trade union rights. If one looks at subsection (7) on page 24 one finds that broadly speaking the matters with which the commissioner can help the member may be described as proceedings under this Act or proceedings in relation to a 1984 Act union election or political fund matter or, such other proceedings … against a trade union, an official of a trade union or the trustees … of a trade union as may be specified in an order made by the Secretary of State".

Our amendment would add to that: other persons against whom a member of a trade union claims by virtue of his rights in connection with his membership of or activities relating to that union".

The question arises: who are those other persons? They could be two or three different types of persons, but I shall concentrate on one; namely, the member's employer. The amendment is quite clearly formulated in order that the commissioner should be able to protect a union member in respect of his union rights against all persons, including his employer. Those rights are in the 1978 Act for the most part and, broadly speaking, protect his right to be a member of an independent trade union, to take part in its activities and not to be dismissed in respect of union membership matters. That is a very broad description, but I am sure that noble Lords will know these sections.

As I understand it, although this matter has only been raised very obliquely, it was said in another place that this extension does not belong to the Bill because the Bill is concerned with the union member's rights as against his union, its officials or trustees. That argument cannot now be put forward because in Schedule 3 the Bill now contains a number of provisions which amend the law relating to a union member's rights against his employer. I shall give only one example. On page 39 of the Bill as printed after Committee, in Schedule 3, paragraph 2(7) contains an amendment of Section 23 of the 1978 Act which deals with the union member's right as against his employer to take part in activities and be a member of an independent trade union, and also amendments of Section 58(13) and (14), which are the dismissal sections which protect trade union activities against the employer.

I apprehend that the Government have taken the view that those and other less important but nevertheless parallel amendments are in the Long Title of the Bill because—as I understand it, some people doubted it—the Government cannot make such a mistake. The Long Title appears to cover things done for the purpose of enforcing membership of a trade union. My advice is that the Government are relying on that in enshrining those provisions in the schedule. Therefore, it is quite impossible for the Government to say that this Bill cannot protect trade union members against their employer in respect of trade union membership and activities.

Such a case would be scarcely less than misrepresentation of the Government's own Bill because of the nature of Schedule 3. Now that the matter has been clarified, it seems to us that there is no argument against the proposition that if we are to have a commissioner and if his job is to be, as the long clauses and schedules set out, to protect a worker against his or her union in respect of the membership rights in that union and under the Bill, there is absolutely no reason whatever for the commissioner not to be able to assist in proceedings which that union member wishes to take in his capacity as employee but in respect of trade union rights against the employer. To deny the commissioner the capacity to offer any assistance whatever in such a case would be to render the Government open to the charge of the most biased legislation that has ever been put on the statute book. The Government could answer that charge if they could say that the Bill does not deal with employers and workers in their trade union rights, but they cannot say that now. Therefore, I am sure that they will accept the amendment. I beg to move.

The Earl of Dundee

My Lords, the purpose of the commissioner is to provide assistance without which union members might be unable to take certain proceedings against their union, its officials or trustees. This redresses the disadvantage they might otherwise face against the superior resources and facilities available to the union.

The amendment would only be necessary if there was any prospect of bringing within scope of the commissioner's assistance proceedings taken by union members against some party other than their union. The Government have no such intention.

The provisions concerning the commissioner are appropriate for his role as the Government conceive it. The amendment implies that the commissioner's assistance might be made available in connection with proceedings other than those against the parties currently included in subsection (7)(e). That would be simply misleading and wrong.

The noble Lord, Lord Wedderburn, referred to the need for union members to have rights against their employers, and that is absolutely correct. The union member also needs to avail himself of some assistance in any proceedings that he may wish to take against the employer. However, there is already in existence the industrial tribunal system which is available to union members complaining about employers' actions in breach of Sections 23, 27, 28 or 58 of the 1978 Act. Union members can seek advice from various sources and might use the legal aid green form scheme to help prepare their cases; indeed the union might provide—

Lord Wedderburn of Charlton

My Lords, will the noble Earl permit me to intervene? Perhaps I was inattentive, but did he say that a union member, as a worker in an industrial tribunal against his employer, could obtain legal aid?

The Earl of Dundee

No, my Lords, I said that a union member could seek advice from various sources. He could use the legal aid green form scheme to help prepare his case. Indeed, his union might well provide even more assistance.

I certainly could have sympathy with the case put forward by the noble Lord if there were not already a system of redress for the union member against his employer. Be that as it may, I would have sympathy with what the noble Lord puts forward if the role of the commissioner would not be a conflicting consideration and were to give scope for redress against the employer and at the same time be a means with which the union member could take up his union complaints.

Perhaps it would be useful to remind the noble Lord about the nature of proceedings in scope of assistance as far as the commissioner is concerned. The proceedings in scope of commissioner's assistance are initially to be those which concern complaints which would at first instance be heard in the High Court. They are not generally proceedings taken by individuals seeking personal redress, which would normally take the form of monetary compensation. Here we perhaps have the distinction between what the noble Lord has in mind when he rightly considers the need for having a proper system of redress against employers which is to do with monetary compensation and the other matter as I have just outlined it.

Subsections (7)(e) and (8) give the necessary flexibility to extend the functions and role of the commissioner should this be justified by experience or subsequent development. Once the commissioner is appointed, and his office is functioning, it may become apparent that additional proceedings—subject to parliamentary scrutiny by your Lordships and in another place—ought to be brought into the scope of his assistance. But the generic nature of the proceedings for which that assistance is available must be preserved.

10.45 p.m.

Lord Wedderburn of Charlton

My Lords, I suspect that the Minister has more sympathy than his brief allows him, because the unfairness is now patent. There is no legal aid for the worker who goes to the industrial tribunal to enforce his trade union rights against his employer. The legal advice scheme produces almost nothing. I am glad if the Government suggest encouraging workers to join unions and so protect themselves with support before industrial tribunals. That is a very good reason. However, the worker may not be a member of a union. In any case, in none of those situations is he going to get the great support forthcoming from the commissioner. The commissioner is going to pay out a great deal of money. Where does the worker, who has been wronged in his trade union rights, get any parallel process or redress? It is a biased clause.

I am surprised that the Minister said there might be an extension into the sort of area I was suggesting. I do not read Clause 20 as allowing the Secretary of State to make an order by statutory instrument to bring in the employer as a defendant. The idea has been put that the situation against the employer is different. Here, the union member may sue the union in the High Court and not in a tribunal. This will often be true. Plenty of actions are brought in the county court or the High Court, according to the amount involved, by ordinary workers on a contract of employment. There is no distinction at all.

The fact is that the Government insist that there will be lots and lots of money for union members who sue their union. But there is not going to be parallel extension of support even for workers who are dismissed or penalised in regard to their trade union rights at the place of work. I put it no more generally than that; but there is the parallel. They are not going to get any financial support under this measure. They are going to be left without legal aid; they are going to be left in a position where, unless they have a union, they will be in great difficulty. The moral is clear. Perhaps one consequence of the Bill, which we shall all like, will be a great extension and encouragement of trade union membership. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 [Provision supplemental to section 20]:

Lord Trefgarne moved Amendment No. 31.

Page 24, line 38 at end insert— ("(1A) Where the Commissioner provides assistance under section 20 above in relation to any proceedings, it shall be his duty to do so on such terms, or to make such other arrangements, as will secure that any person against whom those proceedings have been or are commenced is informed that assistance has been or is being provided by the Commissioner in relation to the proceedings.").

The noble Lord said: My Lords, this amendment will place a duty on the commissioner, where he provides assistance in relation to proceedings, to do so on terms or arrangements which will secure that any person against whom those proceedings have been or are commenced is informed of that assistance. The commissioner could fulfil that duty by requiring the assisted person to make such notification, or he could choose to be responsible for it himself.

The amendment fulfils a commitment given by the Government in the Committee stage of the Bill in another place. My honourable friend Mr. Nicholls promised the Committee that the Government would come forward with an amendment so that when a union knows that it is being sued by a person assisted by the commissioner in those proceedings, it will know that such assistance has been provided. Formal notification of the commissioner's assistance will give the union member added reassurance.

The new duty should reassure those against whom proceedings may be brought with the commissioner's assistance that they will be made aware of that assistance. I hope that such knowledge will be helpful to them and I commend the amendment to your Lordships. I beg to move.

Lord Wedderburn of Charlton

My Lords, we thank the Minister for this amendment which we think is helpful. We have one question. It arose in debates in another place in respect of which Mr. Nicholls agreed to take the matter up.

The amendment requires the commissioner to notify the other party when it is a person against whom proceedings have been or are commenced. In the normal way of thinking about legal actions, that might be quite satisfactory. In the context of actions under this Bill (and indeed in other ways) where the commissioner may be supporting the union member, and in the context of the debate in which Mr. Nicholls made the point, the remedy sought may be by an interlocutory injunction. The interlocutory proceedings may give the defendant union very short notice. It need be no more than two days normally; it is sometimes a few hours. Sometimes proceedings are begun ex parte. Indeed, proceedings ex parte are quite common.

Would it not be possible—and I do not ask for a great widening—to formulate a slight widening that would require the commissioner to inform the proposed defendant that proceedings are about to be commenced or have been commenced? If the formulation is left as it is, in many interlocutory proceedings it will be meaningless. The first that the defendant union will know will be a letter before the action, if it is lucky, and more usually it will be the draft notice of motion or some even less formal communication. In fairness, if the Government appoint a reasonable commissioner, I imagine that he will do this anyway. I do not think that in the injunction situation he would want to be in a position of merely being obliged to inform the union after everything had started, which would be pointless. Perhaps the Minister could consider a slight widening.

Lord Trefgarne

My Lords, I am happy to look into the question raised by the noble Lord. Perhaps I may write to him between now and the next stage of the Bill.

On Question, amendment agreed to.

Lord Trefgarne moved Amendment No. 32:

Page 24, line 38, at end insert— ("(1B) In every case where assistance provided by the Commissioner under section 20 above extends to assistance with respect to the conduct of any proceedings to which that section applies, that assistance shall include an agreement under which the Commissioner is required, subject only to such exceptions as may have been contained in the notification under subsection (2) of that section of the Commissioner's decision on the application, to indemnify the applicant for so much of any liability of the applicant to pay any amount in respect of costs or expenses to any other person as arises by virtue of any judgment or order of the court in the proceedings in relation to which the assistance is provided.").

The noble Lord said: My Lords, the amendment ensures that an assisted person will be sure that if costs or expenses are awarded against him by the court in respect of proceedings for which he is being assisted by the commissioner, he himself will not be out of pocket as a result of that award.

It was always clear that the commissioner had the power to give an assisted applicant an assurance that he would provide the money necessary to pay any such award. It is useful to avoid any doubt that such an assurance is intended to be an invariable part of any grant of assistance by the commissioner which extends to the conduct of proceedings. The amendment is entirely consistent with the purpose of the commissioner and his powers in respect of assistance set out in Section 20. I hope that your Lordships will agree to it. I beg to move.

Lord Wedderburn of Charlton

My Lords, we can understand that the amendment is in line with the provisions of Clause 20 and indeed the structure of the clauses concerning the commissioner. Does the amendment not disclose once again how unfair it is that the commissioner can support with this indemnification? Is it really right that he should not be able to support the applicant in respect of an action on his trade union rights against other persons? I do not expect the Minister to give any assurance on this. As I have said, we understand the amendment and we do not oppose it. I take this opportunity to ask the Minister to ponder on the issue, in respect of which the Government will be seen to be biased.

Lord Trefgarne

What issue?

Lord Wedderburn of Charlton

My Lords, the issue of extending the commissioner's role to assist a worker to defend his trade union rights not only against the union but against the employer does not arise on this amendment, but it is highlighted because of the amendment.

Lord Trefgarne

My Lords, I am always willing to ponder anything that the noble Lord says. I cannot say there is any likelihood that there will be a change in the Government's position on the amendment, but I am glad to hear that the noble Lord welcomes the amendment.

On Question, amendment agreed to.

Lord Trefgarne moved Amendment No. 33:

Page 25, line 11, at end insert— ("(3A) In this section "the applicant", in relation to any assistance under section 20 above, means the individual on whose application under that section that assistance is provided.").

The noble Lord said: My Lords, this amendment adds a new subsection to Clause 21 which sets out the meaning to be applied to references to "the applicant" in subsections (2), (3) and new subsection (1B). The applicant is to mean the individual on whose application under Section 20 the commissioner's assistance was provided.

It was never the Government's intention that any other definition should apply to the term in the clause. However, without having the provision in the new subsection (3A) it is possible that a different interpretation may have been applied. The amendment ensures that this cannot happen. I hope that your Lordships will agree to it. I beg to move.

On Question, amendment agreed to.

Clause 22 [Procedure before the Certification Officer]:

The Earl of Dundee moved Amendment No. 34: Page 25, line 16, at end insert ("; and, without prejudice to the generality of the power conferred by this subsection, the provision made by the Certification Officer in exercise of that power shall include such provision as he considers appropriate for restricting the circumstances in which the identity of an individual who has made, or is proposing to make, any such application or complaint is disclosed to any person.").

The noble Earl said: My Lords, with your Lordships' leave, I shall also speak to Amendment No. 35 in the name of the noble Lord, Lord Wyatt of Weeford.

As I said when we discussed an identical amendment at Committee stage the concern underlying the amendment is understandable. Union members should certainly not be put off making complaints about breach of statutory duty by their union and taking them up with the certification officer because they fear the consequences for themselves of doing so. This understanding is reflected in government Amendment No. 34 tabled to meet the noble Lord's intent.

In addition to this government amendment, Clause 3 of the Bill can be expected to help, since it has the effect that union discipline imposed because of any assertions made by a member in taking a complaint to the certification officer about his union is to be unjustifiable discipline. If a member faces some other kind of intimidation because it is known he has made such a complaint, that may be a matter for the criminal law.

The amendment of the noble Lord, Lord Wyatt, is not compatible with the present enforcement system. Part I of the 1984 Act gives rights to persons who are members of the union concerned and were members at the time of the breach complained of. This preserves the important principle, consistently followed in the Government's reform of industrial relations and trade union law since 1979, that enforcement is left to those affected by an unlawful act of a trade union. Under the law, the union must ultimately be entitled to challenge the locus standi of the complainant. It would not be enough for the certification officer to be satisfied that a particular complainant was eligible to bring the complaint concerned.

The government amendment closely reflects the concern behind, and the intent of, the noble Lord's amendment. The amendment will allow the certification officer, in regulating his procedure, to include such provisions as he considers appropriate for restricting the circumstances in which the identity of any union member who approaches him is disclosed to any person.

The amendment does not restrict the certification officer in the same way as the noble Lord's amendment, and will permit the certification officer to continue to fulfil his functions with a workable and self-regulated method of restricting the circumstance in which a complainant's or an applicant's identity is disclosed to any person. The amendment has the added advantage of not applying solely to complaints brought under Section 5 of the 1984 Act. It will also apply to other complaints or applications made to the certification officer.

I hope that, having had time to study the government amendment and to listen to what I have said on the subject, the noble Lord will feel able not to press his amendment. I beg to move.

11 p.m.

Lord Wyatt of Weeford

My Lords, I welcome the Government's Amendment No. 34 because it provides for just about all the requirements set down in the amendment tabled by the noble Baroness, Lady Blatch, and myself. It will be a great encouragement to many people who might be afraid of victimisation if they are exposed as having complained against their union—and they may well be justified in that worry.

I understand that it is not possible in all cases for the certification officer to keep the anonymity of the complainant if it is ad hominem or there is a particular incident involved. In such circumstances he would have to say to the complainant, "If you wish to proceed in this case, I am afraid your identity will have to be disclosed; otherwise you had better drop it". However, having said that, I think that the amendment goes a very long way to encourage people who would otherwise be frightened to bring forward a perfectly legitimate complaint.

Baroness Turner of Camden

My Lords, on our side we cannot see that this is a just, necessary or reasonable amendment. There is no evidence to show that the individual member who has had recourse in the past to the certification officer has ever had to fear victimisation from within his union. I had some experience of such activities in my union when I was responsible for the operation of its rules. We had instances where individual members from time to time made complaints to the certification officer. Indeed, I can remember one occasion when an individual made a whole series of complaints which I was responsible for dealing with on behalf of the union. On that occasion all but one of the complaints were dismissed, but the member concerned never complained about victimisation simply because none ever took place. Indeed, that member turned up on several occasions as a delegate to the union's annual conference and carried on exactly in a normal way with no harassment or victimisation from the leadership of the union. I think that this has proved to be the situation in many unions.

Victimisation has often been mentioned by the noble Lord, Lord Wyatt of Weeford, and has also been referred to from the Government Benches, but no evidence has been advanced to support such claims. Therefore we do not think that this provision is in any way necessary. In any event, as the Minister said when introducing the amendment, there is already provision under Clause 3. Therefore I ask why it is necessary to gild the lily, so to speak, and introduce a further provision under Clause 22.

We believe that individuals making charges should be prepared to be identified. If they are not identified, it gives the union against which the allegations are made no opportunity of confounding the allegations or of properly investigating them. I believe that this is all part of the philosophy of weighting everything heavily against the union so that it has less chance of defending even trivial complaints, whereas the individual dissident has every opportunity to do so, ably supported by a public official and public funds.

Obviously at this late hour there will not be a Division on the amendment, but we want to put on record that we regard this provision as totally unnecessary and quite without foundation. Furthermore we can see no evidence of any victimisation that would justify the introduction of the clause.

On Question, amendment agreed to.

[Amendment No. 35 not moved.]

Lord Wyatt of Weeford moved Amendment No. 36:

Page 25, line 31, at end insert— ("(5) Without prejudice to the right of any member of a trade union to apply to the court for a declaration under section 5 of the 1984 Act, the Certification Officer shall have the power to apply to the court for such a declaration as if he were a member of the trade union under section 5 of the said Act; and he shall be under a duty to make such an application where he is satisfied that the union has failed to comply, wholly or in part, with the terms of a declaration made by himself.").

The noble Lord said: My Lords, as I explained in Committee, the amendment is designed to prevent an ordinary member of a union living a long way from London—an ordinary person who is not versed in lawyer's ways—from having to go through a double process in relation to his case: first, having to take his case to the certification officer and there being subjected to interrogation and examination by union officials or whoever is brought along to ask him questions; and, secondly, having got the declaration he sought from the certification officer, to prevent him from having to go again to another body, a court, in order to have such a declaration enforced if it has been ignored by the union concerned.

The amendment is merely designed to put the duty of going to the court with that declaration on to the certification officer instead of making the rather simple, humble union member go through the legal process. It would also save a great deal of public money because on that occasion he would not need the services of the commissioner to help him in the court. I beg to move.

Lord Wedderburn of Charlton

My Lords, we take an attitude on this type of amendment which I think we explained in Committee. The certification officer fulfils a number of useful roles not merely with regard to the running of trade union affairs but in the running of the industrial relations system. It is wrong to attempt to make the certification officer into some kind of law enforcement officer as well as fulfilling his other functions, which are already a mixed bag. He has administrative functions and quasi-judicial functions. Despite all the problems of the legislation of the past few years, he has retained a remarkable degree of confidence and maintained a smooth relationship with the trade union movement and with individual members.

The noble Lord, Lord Wyatt, spoke about a member coming before the certification officer and being subjected to interrogation. My experience is that proceedings before the certification officer are not of that character. It would spoil the work that the certification officer does and put him in a new prosecuting role, which I do not think that he would welcome and which would generally muddy the waters and add yet another force against trade unions. At the moment he helps in the administration and in industrial relations. It is a bad idea and we oppose it.

The Earl of Dundee

My Lords, I appreciate the concern underlying the proposals put forward by the noble Lord, Lord Wyatt of Weeford, but the arguments which I used a moment ago against a self-starting commissioner for the rights of trade union members are also applicable to the proposed extension of the powers of the certification officer.

The legislation guarantees the rights of ordinary union members and candidates in union elections. It must be for those members and candidates themselves—not some third party—to decide when and how to use those rights. The Government's view has always been that it is far better for enforcement of election and register duties to be in the hands of those affected by a union's unlawful action, such as union members themselves, and not those of some external, government-sponsored institution.

Government should not risk the benefits of legislation by making its operation dependent on action by a government-sponsored supervisory agency, or even by associating it with action by such an agency. We should not allow union leaders to present their unions as victims of unwarranted state interference in their affairs. Also the experience with intervention by ACAS in context of union recognition shows the difficulty of imposing duties on state agencies in respect of inquiries into industrial relations matters.

I want to reassure the noble Lord, Lord Wyatt of Weeford, that the position of union members is not all that weak. Complaint to the certification officer is simple, cheap and informal. It is an alternative to, not a substitute for, complaint directly to the High Court. It has been used, and used effectively, in many cases. Experience indicates that there are certainly union members who are neither timid nor intimidated when it comes to making applications to the certification officer.

In addition, members will be protected against union discipline imposed because they have approached the certification officer (or the commissioner) in connection with a complaint. In future, if a union does not take remedial steps to correct and avoid the breach of duty on which the certification officer has made a declaration, the union will know that any member who wishes to apply to the High Court is likely to be able to get the commissioner's assistance for such proceedings. In those circumstances union members would not be handicapped by lack of resources.

The Bill enables a scheme to be made enabling union members involved in attending a hearing before the certification officer to be compensated for travel, loss of earnings and expenses related to attendance. This may make it easier for union members to devote time to proper pursuit of applications to the certification officer.

However, I think that the proposals would cause real difficulties for the certification officer. He is not—and has never been intended to be—a trade union policeman. He is not equipped to undertake the sort of investigatory and inquisitorial role that the proposals would require. The noble Lord, Lord Wedderburn, has already made this point. For the proper performance of his functions, such as determining the independence of trade unions, maintaining the statutory list of trade unions, receipt of accounting statements, giving advice on union mergers etc., the certification officer needs union co-operation and a reputation for impartiality. His role under the amendment would force him to be partisan. As this would put his reputation for impartiality at risk, it might even lead to union boycott of the certification officer.

The certification officer has a number of roles in which he acts in a judicial capacity. But in no case does he act as a prosecutor by taking unions to court, or have the power to make complaints which statute provides for union members. There is simply no proven need for such contentious and novel arrangements, nor reasonable expectation that need for them is likely to arise in the future. An analogy can perhaps be drawn with the High Court. If a defendant breaks an order of the court, and thus puts himself in contempt of court, the court is powerless to initiate further proceedings itself. It is for the plaintiff to approach the court and instigate contempt proceedings. The court cannot proceed of its own volition, and it would be inappropriate for the certification officer to do this.

With those general remarks and those few varied reasons, I hope that the noble Lord, Lord Wyatt of Weeford, will not press his amendment.

Lord McCarthy

My Lords, before the noble Lord sits down, would he not agree that the extremely useful role of the commissioner which he has outlined so well digs away at the case for the commissioner? The fact is that the certification officer works extremely well and he dismisses the great majority of complaints that come against him. Yet when he finds against trade unions, they invariably carry out everything he suggests. If things are so well run by the certification officer, does that not indicate how little we need the commissioner?

Lord Wyatt of Weeford

My Lords, to answer the point just made by the noble Lord, Lord McCarthy, it is not true that the unions have always complied with the certification officer's declaration. In two cases at least, NALGO and the TASS union, which has now merged with ASTMS, refused to comply with the certification officer's declaration. Nobody could be found brave enough to go on his own account to the court to have that declaration implemented. Although NALGO has now put itself in order in these matters, TASS did not have time to do so before it was merged. I hope it will be a better behaved union in future, in its new guise. Nevertheless, it is not true that all declarations made by the certification officer are carried out by the unions concerned.

Baroness Turner of Camden

My Lords, will the noble Lord give way? The only example he has quoted so far is that of TASS, and he has just agreed that TASS anyhow did not have time to put the matter right before it merged with somebody else.

Lord Wyatt of Weeford

My Lords, on the contrary, it had ample time; it was two years ago. It has run out of time because it does not exist any more. If I had been a member of TASS, run by communists who had never stood for any sort of election under a vote-free ballot, I myself should have been frightened to go to court.

Baroness Turner of Camden

My Lords, I ask the noble Lord again: is he not himself admitting that there has been no attempt to challenge the position from within TASS? Is that not right?

Lord Wyatt of Weeford

My Lords, I apologise. I did not quite hear what the noble Baroness said.

Baroness Turner of Camden

My Lords, I repeat: is it not true that there has been no attempt by any member of TASS to challenge what has happened and that the certification officer has not proceeded any further against TASS?

Lord Wyatt of Weeford

My Lords, no. The action of TASS, or the failure of TASS to hold proper elections under the 1984 Act, was challenged by a member of TASS, or more than one. The certification officer issued a declaration that TASS had not complied with the 1984 Act and should do so. Thereafter there was nobody brave enough to go to the court to get that declaration implemented. I can understand why in the circumstances of that particular union. However I hope that in its new life under the wings of the noble Baroness who has just spoken it will be a reformed character.

But nevertheless I think there is still a difficulty in ordinary people being asked to go through two processes and not just one. It is in fact a piece of evidence which the court must accept—that the declaration has been made against the union and the union has not complied with it.

I am not asking the certification officer to be a prosecuting officer but a postman. He should take his declaration down and say, "Look, I have issued this declaration. The union has had a reasonable time in which to comply with it. It has not done so. We shall now issue an order that it has to".

That would carry more force from a court than it would from a certification officer. However I can see that the Front Benches are both in agreement, which must clearly mean that they are both wrong, as they were on Amendment No. 1 this afternoon, which was carried only by the collaboration of the two Front Benches. I dare say that they might manage the same again if I pressed this matter to a Division. So with your Lordships' permission I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 [Interlocutory and interim orders]:

11.15 p.m.

Lord Wedderburn of Charlton moved Amendment No. 37:

Page 25, line 39, at end insert— ("(3) On any such application, section 17 of the 1974 Act shall be applied—

  1. (a) with the addition at the end of subsection (1) of the words "and an affidavit shall be provided to the court at the hearing setting out what those steps were"; and
  2. (b) with the words "not grant the injunction if that party appears likely to succeed" substituted in subsection (2) for the words "have regard to the likelihood of that party's succeeding".").

The noble Lord said: My Lords, this amendment concerns Clause 23. It is remarkable that Clause 23 is in the Bill. It might be thought that applications to the High Court that arose under this legislation would give rise in any case to the usual interlocutory relief or, as the much more sensible Scottish nomenclature has it, "interim orders".

This amendment is moved within the compass of the Bill; that is to say, it is applied to the applications to which the provision applies. We would like to move amendments to the jurisdiction on interlocutory injunctions more widely, but we have done so only within the compass of the Bill.

Although the hour is late, in my opinion this is the most important clause in the Bill. Labour law in operation in the courts—this is a Bill which means far more work for the courts, as well as for the industrial tribunals under Clause 3—is the law of the interlocutory injunction. That is not about most of the things that we have been discussing either in Committee or on Report. In the interlocutory injunction the plaintiff does not have to prove his case. The plaintiff, especially the plaintiff against the union—I say that advisedly and I shall come back to it in a moment—has to show since the decision in American Cyanamid v Ethicon Ltd. 1975 in Lord Diplock's famous phrase: that there is a serious question to be tried". After that it is the function of the court to apply what is usually known among lawyers with another blindingly inconvenient phrase as "the balance of convenience".

Of course in labour cases the balance of convenience works out in a very strange way. When the employer is the plaintiff it means that the damage to the employer—or the alleged damage, because it is nearly always in the future—is something that the court can understand. Therefore the restoration of the status quo is the avoidance not of the position before the proceedings were begun, because usually there is industrial action then, but before the industrial action before the proceedings were begun in order to avoid prospective damage to the employer. The union's alleged damage—and this may arise in an action brought by a member as well—is very often that it will lose the opportunity, as Lord Diplock once put it in a judgment which encompassed a number of these points, to strike while the iron is hot". It is not surprising that judges find it very difficult to give precedence to the industrial opportunities of workers organised in unions as against the allegations of the very material damage which some employers can put forward. The procedures of the interlocutory injunction in labour injunction cases are the most unfair procedures in this country. They are unfair not merely because of the way in which the balance of convenience and the burden of proof operate; they are unfair because the plaintiff is frequently not required to give any notice at all to the union. Two days' notice is supposed to be given. Everyone knows that in a case of urgency it may not be. What is a judge to do when a plaintiff comes along and says: "This is urgent. I must have my injunction at a moment's notice"? Such matters are frequently heard at a moment's notice. The plaintiff has been able to work up his case for some time—that will apply to members as well as employers in the structure created by the Bill—and the union has a very short time.

That is exacerbated by the fact that the proof, such as it is, is not accompanied by normal cross-examination. All the evidence is on affidavit; it is therefore full of hearsay evidence. If one looks at the White Book on the rules of the Supreme Court, one will find an amusing explanation for that. It is said that the origins of second-hand or hearsay evidence ought to be given but usually are not.

I have touched upon the headings of the unfairness. The problem is not confined to this country. All the common law countries have experience of it. The United States, Australia and Canada know about the problem and have debates about it. Some countries may ban interlocutory injunctions, as the United States did at one time.

Worse than all that is the fact that plaintiffs can obtain labour injunctions against union defendants ex parte. They do so regularly. That is why this is the most important clause in the Bill. Despite Section 17 of the 1974 Act, which says that notice should be given, what is a judge to do in such cases? I do not criticise the judiciary. In a case in 1987, in an industrial dispute which had gone on for two years, where the plaintiffs, who were third parties to the dispute, alleged that they were entitled to a remedy because strike action had been begun after two ballots, leading counsel, eventually and without notice to the union but acting properly, rang up the judge on a Sunday and got an ex parte injunction over the telephone. That was done without notice to the union, although information was given to its solicitors afterwards on their answering machine. Perhaps that is a rather stark or shocking case. But no one who acts for trade unions is very surprised. It is not out of the ordinary.

That is the reality of labour law in operation. We have put down the amendments to ensure that where people ask for ex parte injunctions—we can only say this about proceedings under the Bill; we say it more generally when we can—there must be an affidavit stating that the plaintiffs have at least tried to give notice. It is not a lot to ask. Also, we say that, where there is argument, as there was in the case of the telephone injunction, there must be a rule that some proof of the matter should be made beyond the mere fact that there is a serious point to be tried. Perhaps I may complete the long story of the telephone injunction. Two-and-a-half weeks after the injunction was granted and after full argument, the judge who heard the case held that the plaintiffs had no case at all—not even a point that could be argued. During that time, there had been an injunction against a union which had done nothing wrong.

I do not expect the Government to accept the amendments. But I hope that the Minister will say that he understands that there is a problem. In the rough and tumble of the place where the Bill is going to be enforced, let the Minister believe that the Bill is entirely just and that its justice will not be muddied by procedures that are unfair. That is the thought that the amendments are meant to bring home to him. I beg to move.

Lord Renton

My Lords, we go into a vast amount of unnecessary detail in our statutes. I suggest that we should be doing so if we accepted this amendment. Matters such as when affidavits should be supplied are matters proper for rules of court made by the appropriate committee and approved by the Lord Chancellor. If I may say so, I think that this is not an appropriate place for introducing matters of such a kind.

The Earl of Dundee

My Lords, Section 17 of the 1974 Act has no relevance in the context of the provisions covered by Clause 23. Section 17 is applicable only where a union has a trade dispute defence. It will be no defence to applications under Clauses 1, 6, 9 or 15 of the Bill or Section 5 of the 1984 Act for the union to claim that it acted in contemplation or furtherance of a trade dispute.

The Government believe that the court needs the power to grant such interlocutory relief—the noble Lord, Lord Wedderburn, has referred to the fact that in Scotland there is a much better term, the interim order—as it considers appropriate pending full trial of the action and to grant such relief on an ex parte basis where that is appropriate.

The intention behind the amendment would be contrary to the protection of the interests of trade union members. In an ideal situation a party should of course be given notice of any interlocutory proceedings but it is a fact, recognized by the courts in giving ex parte injunctions, that there are cases which justify prompt action where the attempt to involve the party against whom relief is sought would cause unacceptable delay. It would not be right to remove from union members all possibility of obtaining a quick response from the courts in an urgent case. That is what the amendment would do. Section 17(1) makes a limited exception to that proposition where the party against whom relief is sought would be likely to claim a trade dispute defence. However, there is simply no case for complicating the process of application or the proceedings of the court in dealing with an application under the provisions covered by the clause.

What is the basis for awarding ex parte injunctions? In deciding whether to award interlocutory relief, the courts weigh the strength of the case before them and the balance of convenience between the two parties concerned, as the noble Lord, Lord Wedderburn, has just reminded us. The noble Lord also led us to believe that the process is an unfair one. It is quite possible that in an action heard on an ex parte basis the court would decide that the applicant had not made a sufficient case for it to issue an injunction against the union. There is no need to impose, or justification for imposing, any special requirements in terms of notifying the union of an intention to apply to the court, or of an application to the court. There is a great need for fairness. The Government have faith in the ability of the courts to do their job properly, even if the terms of this amendment seem to cast doubt on that ability.

While I do not expect that I have given much reassurance to the noble Lord, Lord Wedderburn, perhaps I have explained the government view on this matter.

Lord Wedderburn of Charlton

My Lords, we have touched on the headings of a lengthy debate. I have decided not to go into the detail to try to persuade the Minister to come for a drink sometime when, over about five or six hours, we could go into the details. I do not accept that reply. It will not do. Interlocutory injunctions are unfair. I accept that the drafting of this amendment needs improvement, but this is a matter to which we shall return.

I say to the noble Lord, Lord Renton, that, having identified a procedure which we believe to be unfair, I do not follow his argument that this is not the place to raise it. It is a Bill which is relevant, a problem which is relevant and this is a legislative assembly; the House seems to be the right place to raise the subject. We shall do so on another occasion, but for tonight I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11.30 p.m.

Clause 25 [Functions of the Secretary of State and of the Commission]:

The Chairman of Committees (Lord Aberdare)

My Lords, if Amendment No. 38 is agreed to, I cannot call Amendment No. 39.

Lord Renton moved Amendment No. 38: Page 26, line 32, leave out from ("opportunities") to end of line 33 and insert ("for employment and training that are available to women and girls or to disabled persons;").

The noble Lord said: My Lords, Amendment No. 38 is an alternative to Amendment No. 39, and I suggest that they be discussed together. Both amendments have broadly the same effect; namely, to enable arrangements to be made for the training and employment of disabled people, of whom, I remind your Lordships, the mentally handicapped are by far the largest group. At the Committee stage, the noble Baroness, Lady Seear, moved a somewhat similar amendment and was supported by all parts of the Committee. I should point out that her amendment made the arrangements mandatory. She very properly used the word "shall".

My noble friend Lord Trefgarne said at Committee stage that the amendment was not strictly necessary as the Bill and Section 2(1) of the Employment and Training Act 1973 already require arrangements to be made for the training and employment of people according to their capacities. Nevertheless, he was good enough to say that he would look again at the matter. I therefore assume that he will look favourably on one or other of these amendments.

I suggest that Amendment No. 39, although a second thought, is perhaps the shorter and clearer of the two amendments. I beg to move.

Baroness Turner of Camden

My Lords, from these Benches we shall support either of these amendments. I agree with the noble Lord, Lord Renton, that Amendment No. 39 is the better of the two. We supported the noble Baroness, Lady Seear, when she moved her amendment in Committee and we think that there is no real reason why this very sympathetic amendment should not be accepted by the Government. We hope that it will be.

Lord Trefgarne

My Lords, it is true that during the Committee stage of the Bill I undertook to look to see what we could do to put our intentions in the Bill beyond peradventure. I have examined both the amendments tabled by my noble friend Lord Renton. Unlike the noble Baroness, Lady Turner, I prefer the first one, Amendment No. 38. Indeed, I am prepared to accept Amendment No. 38 as moved by my noble friend, on the understanding that then he will not wish to move Amendment No. 39.

Lord Renton

My Lords, I feel obliged to accept that suggestion.

Baroness Seear

My Lords, as the mover of a similar amendment in Committee, I should like to thank the noble Lord for accepting this amendment.

On Question, amendment agreed to.

[Amendment No. 39 not moved.]

Lord Renton moved Amendment No. 40: Page 27, line 43, leave out subsection (5).

The noble Lord said: My Lords, the effect of Amendment No. 40 would be to leave out that subsection to which it refers; namely subsection (5) of Clause 25. I need hardly remind your Lordships that the noble and learned Lord, Lord Simon of Glaisdale, with much greater force than I can command, has frequently suggested that the insertion of the words "consent of the Treasury" are quite unnecessary. In this subsection there is a slight variant: the words here are "unless the Treasury have approved" the various matters which are mentioned.

This is a matter which the noble and learned Lord has taken up quite recently with my noble friend the Lord Privy Seal, who, in a letter that I have his permission to quote, describes the gambit that we find so often in our statutes as "inveterate". I refuse to accept that as a justification for this sheer nonsense. It really is bureaucracy.

The Secretary of State is a member of the Cabinet. He has to obtain his Estimates before he can spend any money at all. That he should have to obtain the rubber stamp of a relatively minor official of the Treasury before deciding in detail how he is to spend the money voted in the Estimates—matters of detail for which he has responsibility—is sheer nonsense. I hope for the co-operation of at least one member of the Government now on the Front Bench in order to help us on this occasion to get rid of it. I beg to move.

Lord Mottistone

My Lords, I should very much like to support my noble friend. I have been raising this point at different intervals over the past 10 years or so for just the reasons that he has given.

I cannot find a subsection (3) to Clause 11 of the Bill. I have a feeling that there is need for the Government to make a correction. Perhaps they are talking about some other section which has changed since earlier amendments have taken place. Perhaps that might be looked at.

Lord Renton

My Lords, perhaps I may help my noble friend, if he will allow me. Clause 25 of this Bill is replacing Sections 2 and 3 of the 1973 Act. Therefore they are references to sections and subsections of that Act.

Lord Carr of Hadley

My Lords, I should very briefly like to support the amendment of my noble friend Lord Renton. My past career as a Minister at various levels in various departments has been punctuated by moments of fury at the Treasury trying to dictate in detail how I and my department should spend money that we have obtained in our Vote.

Baroness Turner of Camden

My Lords, we on these Benches were not quite certain what Amendment No. 40 meant until the noble Lord, Lord Renton, explained it. Having heard the explanation and the contributions of the noble Lords, Lord Mottistone and Lord Carr, we think that there is much merit in the amendment and we should like to hear that the Government have decided to accept it.

Baroness Seear

My Lords, we should also like to support anything that clips the wings of the Treasury.

Lord Trefgarne

My Lords, I rise with a sneaking sympathy for some of the observations that we have heard this evening, in particular as a Minister who in another incarnation presides over some £8,250 million of expenditure each year. I must, however, assure my noble friend Lord Renton that the obligation to have Treasury approval for payments made under this provision is simply carried over from Section 3(2) of the Employment and Training Act 1973, which Clause 25 amends, as your Lordships are aware. It is absolutely standard to have Treasury approval for departmental spending of any description.

I hope that my noble friend and others can agree that any responsible government must have central control over their spending. I should not want to seek any other arrangement. All Ministers in this Government are concerned with economy. We all share the collective desire to avoid excessive public spending and the Treasury has the duty to make sure that we do. There is nothing wrong with that.

Speaking from my experience, although the Treasury exercises a formal oversight of everything that we spend, the approval of most of the routine expenditure is delegated to the department in question. I therefore do not think that the bureaucracy that my noble friend was so fearing will happen in reality. It is only in the unusual cases that the Treasury seeks to be particularly involved. Speaking for myself, I do not find the control of the Treasury particularly onerous. Where it seeks further information or more information, it is usually for a good reason. I hope therefore that my noble friend will think that this is the right provision to have in this measure.

Lord Renton

My Lords, I should like to thank my noble friend for praising my amendment with his faint damns! However, I am grateful for the support that we have received including that from a most eminent noble friend who among other appointments held the office of Home Secretary. In the presence of the Chief Whip, I feel bound to say that if parliamentary time is to be saved these expressions would be best left out of our legislation, because there are those of us who are determined that this nonsense shall not continue.

I am not prepared to withdraw the amendment but I am prepared to have it negatived.

On Question, amendment negatived.

Clause 26 [Status of trainees etc.]:

Baroness Turner of Camden moved Amendment No. 41: Page 29, line 5, after ("may") insert ("subject to subsection (1A) below").

The noble Baroness said: My Lords, I rise to speak also to Amendment No. 42. The intention of these two amendments is to ensure that the principle of equal pay as defined in the directive of the Council of Ministers of the European Community is carried through with regard to people in training who are covered by this section of the Bill.

It may well be that this is the Government's intention. However, we think that it is sufficiently important to have it written into the Bill. We already have, under Clause 25(2), arrangements to increase opportunities for women and girls. We think that is wholly admirable. The proposed amendment follows from that. We are very anxious to ensure that people covered by this clause are treated as if they were employees to the extent of their being covered by the EC directive on equal pay. We believe this to be very important.

There is already a certain amount of evidence available which would appear to indicate that as far as concerns some training schemes, including YTS, girls still tend to be directed into the traditional areas of female employment. If it is clear that the directive applies, the whole question of equal opportunity and equal pay will be emphasised. We want to ensure that this is done.

We still have a situation in this country, even after over a decade of equal pay legislation, where women receive in general about 70 per cent. of male earnings. This is entirely unsatisfactory, and we realise that simply amending the Bill in the way we propose will not alter that overnight. But it at least provides an opportunity to state again that it is our intention to move in the direction of ensuring that the directive is applied and that it should be applied to the people covered by this clause. I therefore beg to move.

Lord Trefgarne

My Lords, I think it is suggested that participants in government schemes should always fall within the scope of Directive 117 of the European Community, which is fully implemented in the United Kingdom through the Equal Pay Act 1970. The Government certainly share the concern that the provisions of the Equal Pay Act should be properly applied. As your Lordships are no doubt aware, the provisions of the Act apply only to those who are employed as defined by that Act. However, I think it is suggested that trainees on our programmes who are not employees should be treated as if they were. However, that is misconceived. The noble Baroness will appreciate that an order cannot alter the effect of European law. The European Directive on Equal Pay, as this directive is generally known, and Article 119 of the Treaty of Rome, which it supplements, apply to workers receiving pay from their employers.

Lord Wedderburn of Charlton

My Lords, is it not the cast that it is national law that in the vast majority of cases, including this, determines the meaning of "worker" or "employee", albeit that national law cannot change the obligations of the directive? There are many instances of that, and is not the Minister putting a case which is misguided in that respect?

Lord Trefgarne

My Lords, I think not, because although there is no doubt scope for interpretation of definitions, there is no scope for changing the fundamental thrust of the directives in question.

The European Directive on Equal Pay, as this directive is generally known, and Article 119 of the Treaty of Rome, which it supplements, apply to workers receiving pay from their employers. They cannot have been intended to apply to trainees receiving a training allowance from the state. We are offering to the unemployed, through programmes such as YTS and Employment Training, concrete opportunities to enhance their future employment prospects. As was pointed out during the debate on this clause in Committee, it would be counter-productive to insist that employers should take on these unemployed people as their own employees while they are being trained. We can only offer the unemployed this chance of training if employers are willing to help.

I hope, therefore, that the noble Baroness will accept that this amendment really undermines the principle of the training scheme that we have been discussing on other occasions as well as today and that she will not press this amendment.

11.45 p.m.

Baroness Turner of Camden

My Lords, I do not understand what the Minister means when he says that it would be counter-productive. I cannot see why it should be impossible to ensure that those in receipt of training allowances and being trained are treated in equal fashion. Is he really saying that the only way in which employers will co-operate is if they are assured that they can apply unequal treatment to employees? I do not understand what is meant. I am most dissatisfied with the Minister's response which does not come to terms with the amendment we have tabled. Nor does it meet the valid point raised by my noble friend Lord Wedderburn. In my view the Minister has not made a satisfactory response to that point. However, I shall not press the amendment at this hour of the night. I should like to put on record that these Benches consider that the Minister's reasons for not accepting the amendment are entirely unsatisfactory and very disappointing.

Baroness Seear

My Lords, perhaps I have not understood the Minister. I should like to ask—

Noble Lords


Lord Denham

My Lords, this is Report stage. It is generally accepted that when my noble friend has wound up and the proposer of the amendment has spoken, that is the end of the business.

Baroness Seear

My Lords, had the noble Baroness withdrawn the amendment?

Lord Denham

My Lords, the proposer of the amendment can speak after the Minister but no one else. The Procedure Committee has suggested that that should happen at the Report stage and I hope that the noble Baroness will agree with that.

Baroness Turner of Camden: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 42 not moved.]

Clause 27 [Amendment of the Social Security Act 1975 with respect to the refusal of training etc.]:

Baroness Turner of Camden moved Amendment No. 43:

Page 30, line 2, at end insert— ("(2A) After subsection (1) there shall be inserted— (1A) For the purposes of paragraphs (e) and (f) of subsection (1) a person has 'good cause' where he shows that he is pursuing, or intends to take up within a reasonable time, a course of study or other similar activity which is suitable to his capabilities and aptitudes and which he is pursuing, or intends to pursue, with a view to improving his opportunity or chance of finding regular employment." ")

The noble Baroness said: My Lords, we return to the question of what is good cause. It was the subject of discussion in Committee. The intention of the amendment is to ensure that a person has good cause within the meaning of Clause 27(2)(e) and (f) if he can show that he is endeavouring to follow a course of study or similar activity suitable to his capabilities and aptitudes, and that he is doing so with a view to improving his opportunity or chance of finding regular employment.

When we moved a series of similar amendments in Committee several noble Lords pointed out that the inclusion of the word "requirements" (our original amendment contained the words "suitable to capabilities, aptitudes and requirements") could mean that the individual concerned would be able to make claims about his requirements which would not prove to be justifiable. We accepted the comments made in Committee about our amendment. We have now tabled an amendment in which the word "requirements" has been omitted. We refer simply to "capabilities and aptitudes".

We believe that as it stands the amendment should commend itself to the Government. We are after all talking about people who seriously embark upon self-improvement. It has been stated in the House on numerous occasions that generally speaking we have an under-educated and under-trained workforce. I believe that there is general agreement about that statement and a concern on all sides that the situation should be remedied. In the amendment we seek to help those who are intent upon helping themselves. If they are studying, training or embarking on such a course, that should constitute good cause within the meaning of the clause. I beg to move.

Lord Trefgarne

My Lords, the provisions of Section 20 of the Social Security Act 1975, as amended by Clause 27, already allow an individual to leave or to turn down a place if he has good cause or if the training place offered is not a reasonable opportunity. This amendment seeks to define the circumstances in which an individual would have good cause for turning down a training place and would not be disqualified from benefit in doing so. Circumstances envisaged by the Opposition may well be reasonable. However, it is unnecessary, even dangerous, for us to start trying to define by legislation what is meant by the term "good cause". There are too many variables, too many sets of reasonable circumstances, and by defining some we may well find that we limit the adjudicating authorities to consider only those, thereby excluding others.

If an approved training course would not help an individual get back into work or it was not suitable in his case because of his capacities, aptitudes or domestic circumstances, that individual could refuse a place on it either because he had "good cause" to do so or because the training place was not a suitable opportunity. But it is for the independent adjudicating authorities to decide what is "good cause" for an individual leaving or turning down an approved training scheme.

YTS is the only government scheme which is currently approved for the purpose of benefit sanctions. But guidance from the independent chief adjudication officer makes it clear to adjudication officers that if a young person, is undertaking part-time studies which would enhance his employment prospects and advance his career, prima facie he has good cause for refusing a course under the Youth Training Scheme". We would expect similar guidance to be issued from the chief adjudication officer in the case of any other scheme being approved.

We had a very full discussion on this matter at an earlier stage of this Bill and I hope that in the light of these explanations this amendment will not be pressed.

Baroness Turner of Camden

My Lords, I listened carefully to what the Minister said. I note that he thinks that our clause would be unnecessary or dangerous. I disagree with that. I cannot see that it would be dangerous to give encouragement—because that is what this clause would do—to people to embark on self-improving courses of study or other similar activity and to try to train themselves in order to improve their opportunity of finding regular employment.

I should have thought that that was a worthy objective which everybody in this House would be inclined to support. I note what the Minister said about guidance to adjudication officers and others, and at this point in the evening I am afraid we shall have to accept that and not press the amendment. However, I am not at all satisfied with the reply. This was an opportunity in the House to underline our concern to ensure that we encourage people to undertake courses of study. Describing our amendment as "unnecessary" or even "dangerous" will not help in that. Nevertheless, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 [Short title, commencement and extent]:

Lord Rochester moved Amendment No. 44: Page 33, line 20, at end insert ("Section 17 shall not come into force before the expiry of three months after the Secretary of State has published guidance for employers and employees and their representatives explaining how the provisions of the section should operate.").

The noble Lord said: My Lords, this amendment arises out of the exchanges which took place while we were debating Clause 17, as it now is, in Committee. I remind your Lordships that this clause deals with ballots on industrial action affecting different places of work. I had hoped that it would prove possible to debate this amendment when other amendments on Clause 17 were discussed but that was not agreed and I ask your Lordships to bear with me now for a few minutes.

In Committee I said that in introducing the clause I did not think that the Government had taken sufficient account of the practical difficulties that employers and trade unions would experience, first, in explaining its content to their employees and members and, secondly, in operating it. I further suggested that it was wholly undesirable that this House should pass legislation couched in language, as in this clause, which is so obscure that it might not be intelligible to those affected by it. At this point I should say that the so-called clarification given by the noble Lord, Lord Trefgarne, has done absolutely nothing to make it clearer for me.

In Committee I asked the noble Lord whether, having regard to the complexities of the clause which he himself acknowledged, the Government at Report would bring forward an amendment which would take account of the problems raised and which would be worded in more comprehensible terms. He made it plain that the Government were unwilling to amend the Bill but he agreed to consider whether there was scope for publishing guidance on the meaning and operation of the clause. Since then I have received further intimation from the Engineering Employers Federation and the Institute of Personnel Management of the great concern felt by their members about this clause.

The IPM says that the more it looks at it, the less practical sense it seems to make. In its view the situations that it is designed to prevent are more imaginary than real. At worst they happen rarely and are unlikely to recur in the same form. It considers that it is the very variability of the balloting situation that makes legal prescription for it so unsuitable.

The grounds on which a union's balloting constituency is based may change from day to day. Whether they have to do with bargaining units or common factors they can become extremely complex. For example, in a pay negotiation there will be one constituency which may widen to cover, say, the subject of pensions and then change again when perhaps a shop steward is sacked. The IPM says it sees the clause as a prime example of over-regulation carried to the point of being incomprehensible.

The expert members of the committee who have given further detailed consideration to the operation of the clause since it was last discussed in this House include an industrial relations lawyer of national repute, a similarly distinguished academic professor and two representatives of large employers' associations who have the status of directors. If they cannot readily understand the clause, what chance is there of a manager, a trade union official or an individual employee doing so?

This amendment gives the noble Lord, Lord Trefgarne, the opportunity, first, to confirm that following the enactment of the Bill the Government will publish a booklet explaining clearly to employers, employees and their representatives how the provisions of the clause should operate. Thereafter the amendment proposes that a period of at least three months should elapse before Clause 17 comes into force. That is the time that the Engineering Employers Federation considers will be needed for the guidance to be assimilated by those who will have to operate the clause if it is to have any chance of proving workable. I beg to move.

Lord Carr of Hadley

My Lords, I should like to say briefly to my noble friend that this is, as he realises, an extremely complicated matter. If it is to work at all it must not get off to a muddy, unclear start. To have the short delay requested while the explanatory booklet can be percolated through to those who have to operate the clause and to give some training in what may be right and what may be wrong will help the smooth working of the Government's intentions. Not to do so would be a case of more haste, less speed.

12 midnight

Lord McCarthy

My Lords, we on this side of the House agree with what has been said so far. We have all tried on several occasions to get the Government to look again at the terms of Clause 17. As the noble Lord, Lord Rochester, said, the practical difficulties and obscurities of the clause have been pointed out not only in this House but in the other place. As the noble Lord, Lord Rochester, said, the noble Lord, Lord Trefgarne, acknowledged the complexity of the clause. So did Mr. Cope in another place, reported in Hansard on 10th February, at col. 397. Mr. Cope admitted the complexity and said that the only explanation for it was that the Government wished to avoid what he called artificial constituencies.

That has been the Government's problem. They have been so concerned to deal with the problem, as they see it, of artificial constituencies that they have produced a clause—particularly new subsection (1B)(b)(ii) and (iii)—which is quite unintelligible. The Engineering Employers' Federation says it is unintelligible, as does the Institute of Personnel Management.

I assume that if the EEF and the IPM send me and the noble Lord, Lord Rochester, letters they also send them to the Government. The EEF in particular has raised objections and questions relating to new subsection (1B)(b)(ii) and (iii) which one cannot improve on. Those questions deserve an answer from the Government. My first question therefore is: what are the Government going to say (perhaps they have already written) to the EEF? The EEF says that it would prefer the clause to read "bargaining unit", because it believes it would be simpler. If the Government say to us that they do not want a bargaining unit for the reasons they give, I should like to know the reasons that the Government give to the Engineering Employers' Federation.

However, in the absence of the Government being prepared to have a major reconstruction of this clause (which we would like to see even at this late stage) we are left with the amendment in the name of the noble Lord, Lord Rochester, which helps us in a number of respects. Of course the guidance would not have the force of law. Unless it was a code of practice, it would not even be something which the courts could take into account in applying the clause. However, it might clarify some of the ideas that were in the mind of the Government.

We know that the Government would like to make a number of points clear. What we have been saying on this side of the House is that they are not clear on the face of the Bill. So far as I can understand it, the Government want to make a distinction between a number of things. They want to make it clear that you only need a ballot if all the members affected are at the same place of work. They want to make it clear that if all members in the same group have certain conditions in common—for example, occupational descriptions in common—they can be in one group. They want to prevent what they call artificial constituencies, whatever they are. If the Government could spell out what they think artificial constituencies are, that might help us.

It might also help if they could clarify what they think sub-paragraphs (ii) and (iii) mean. What is this factor which is a common factor but is neither a factor nor a factor in common? That is what subparagraphs (ii) and (iii) say. There is a factor which is a common factor but is neither a factor nor a factor in common, and that definition is going to keep out artificial constituencies. That reminds me of the late lamented Judy Holliday in "Born Yesterday". When asked to read a particularly difficult part of the American Constitution she looked up every word. She said: Even when I looked up every word, I still couldn't understand it". You can look up every word in this clause and you cannot understand it. Why should we not have a little guidance from the Government?

Lord Trefgarne

My Lords, let me say at once that no decision has yet been made about the commencement date for any of the provisions of Part I of the Bill. However, there is no justification for any particular delay in bringing the provisions of Clause 17 into effect. The Government attach importance to the principles underlying the clause and see no reason why employers and union members should not be given the rights provided by the clause as soon as is possible.

The drafting of Clause 17 is necessarily detailed, but it should not be difficult for a union to comply with the provisions step by step. We have already explained in detail, both in this House and in another place, the circumstances in which separate ballots are not required. Once the union has identified the balloting constituency it will be clear whether separate ballots are required and whether an employer, or his customers or suppliers, has a right of action if such ballots are not held.

Detailed guidance on all the provisions of the Bill will be published in due course. In addition, the code of practice on pre-strike ballots, which we intend to publish under the provisions of Clause 18, will necessarily refer to the provisions of Clause 17. However, when the Bill becomes law we will be publishing and explaining the requirements of the Bill. It will be open then, as it is now, for any affected or interested party to seek advice from officials of the department if they are concerned about the way in which any of the clauses of the Bill is intended to operate. In the light of this considerable reassurance, I hope this amendment will not be pressed.

Lord Rochester

My Lords, I am not very impressed or reassured. I am disappointed, to say the least, first, at the suggestion that there should not be a period of three months in which people can have some opportunity to digest what is in this clause. I am the more disappointed when that suggestion has the support of somebody with all the commercial and industrial experience of the noble Lord, Lord Carr of Hadley, speaking also as a former Secretary of State for Employment. As I understood what the noble Lord, Lord Trefgarne, said, this clause is to be treated like any other and guidance may be given on it along with others. The amendment seeks clear guidance for employers, employees and their representatives on the meaning of the clause, given its complexity. For that reason, it should be singled out. When it comes to translating all this into action on the ground, I fear that the results may prove deplorable. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Trefgarne moved Amendment No. 45: Page 33, line 38, at end insert ("and (aa) so much of Part I of this Act as relates to the 1913 Act;").

The noble Lord said: My Lords, with this amendment I should like to speak to Amendment No. 46. These are technical amendments which do not alter the policy of the Bill. I beg to move.

On Question, amendment agreed to.

Lord Trefgarne moved Amendment No. 46: Page 33, line 42, at end insert ("and this Act shall have effect in Northern Ireland in relation to the 1913 Act for the purposes only of the application of that Act to such trade unions and unincorporated employers' associations as have their head or main offices outside Northern Ireland.").

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

On Question, amendment agreed to.

Schedule 3 [Minor and consequential amendments]:

The Earl of Dundee moved Amendment No. 47:

Page 39, line 36, at end insert— ("(3A) In section 136(5) of that Act (appeals under certain enactments to lie only to the Employment Appeal Tribunal), after the words "the Employment Act 1980" there shall be inserted the words "or section 4 or 5 of the Employment Act 1988".").

The noble Earl said: My Lords, this is a purely technical amendment. It is required to ensure that the employment appeal tribunal alone has jurisdiction to hear appeals under Clauses 4 and 5 of the Bill. I beg to move.

On Question, amendment agreed to.

The Earl of Dundee moved Amendment No. 48: Page 39, line 42, leave out ("In subsection (8) of section 5 of the Employment Act 1980") and insert ("In section 2 of the Employment Act 1980 (secret ballots on employers' premises)—

  1. (a) in subsection (1), at the end there shall be inserted the words "unless the ballot is one in which every person who is entitled to vote must be given a convenient opportunity to vote by post."; and
  2. (b) in subsection (9), at the end there shall be inserted the words "; and in this section 'post' has the same meaning as in Part I of the Trade Union Act 1984."
(2) In section 5 of that Act—
  1. (a) in subsection (8)").

The noble Earl said: My Lords, this is the substantive amendment, and simply ensures that statutes are not inconsistent. Section 2 of the 1980 Act provides that, where an independent trade union proposes to hold a relevant ballot and requests an employer to permit his premises to be used for the purpose of giving his workers who are members of the union a convenient opportunity to vote in the ballot, the employer shall, subject to certain conditions, comply with the request so far as reasonably practicable. Both union executive election ballots and political fund review ballots qualify as "relevant" and employers could therefore be required to make their premises available for voting in such ballots. Noble Lords have, however, already agreed with the Government that Clause 14 should stand part of the Bill and that therefore executive election and political fund ballots should be held only by the fully postal method.

The substantive amendment accordingly removes a source of potential conflict between the 1980 Act and the Bill by removing any entitlement to use an employer's premises where ballots have to be held by the fully postal method. Amendment No. 49 is entirely consequential and re-orders paragraph 3 of Schedule 3 so as to make room for the new amendment. I beg to move.

Lord McCarthy

My Lords, I am not sure that I understand the Minister. Is he saying that the amendment removes the right of trade unions and members to have facilities under the 1980 Act not only for workshop-based ballots but for postal-based ballots too?

The Earl of Dundee

My Lords, with the leave of the House, no. It is only in the context of postal ballots and not workplace ballots. I fully appreciate that the noble Lord, Lord McCarthy, may not have caught my remarks. There are two conflicting provisions. On the one hand, we have the approval of the House for the clauses requiring fully postal ballots. On the other, we have the previous Act whereby employers would have to agree to make available their premises for the election. One cannot have both. Our latest provision is the one that would win.

On Question, amendment agreed to.

The Earl of Dundee moved Amendment No. 49: Page 39, line 51, leave out ("(2) After") and insert ("; and (b) after").

On Question amendment agreed to.

The Earl of Dundee moved Amendment No. 50: Page 40, line 29, leave out ("section 2(5) of that Act") and insert ("section 2 of that Act— (a) in subsection (5)").

The noble Earl said: My Lords, with the leave of the House I shall speak also to Amendment No. 51. The House has previously agreed with the Government that postal ballots under independent scrutiny are the best method for conducting elections to union executives.

Unions have discretion under Section 2(13) of the 1984 Act as to whether or not to give a vote to overseas members. For the purposes of the Act, and with the exception of merchant seamen and offshore workers, overseas members are those outside Great Britain throughout the period during which votes may be cast. Union members in Northern Ireland, for example, would thus fall to be treated as overseas members in an executive election.

Where unions do choose to give such overseas members a vote, the Act's requirements as to the method of voting do not apply. This means that such members could be required to vote by any method whatsoever, including branch block voting or even a show of hands.

There may have been some justification for that because the 1984 Act allows for workplace ballots which would occur outside its jurisdiction. But under the fully postal voting method, apart from the voting itself, the basic processes—for example, despatch and counting—will take place on the mainland. It is therefore fitting to provide, as these amendments do, that where unions choose to give overseas members a vote it should be subject to the main provisions of Section 2 of the 1984 Act.

The unions will, as now, be free to choose for themselves whether or not to ballot overseas members. The amendments ensure, however, that where they do enfranchise them, overseas members must, for example, use a voting paper, vote by post, be able to do so without interference and so far as practicable without cost, and have their votes counted fairly and accurately. The clauses concerning independent scrutiny and election addresses will apply automatically where overseas members are enfranchised.

The amendments do not detract from unions' freedom of choice as to drawing up voting constituencies but simply ensure that the overseas members so enfranchised are treated the same as their Great Britain counterparts. I commend the amendments to your Lordships.

On Question, amendment agreed to.

The Earl of Dundee moved Amendment No. 51:

Page 40, line 37, at end insert ("; and (d) in subsection (13) (exclusion of overseas member), at the end there shall be inserted the words "except, in the case of subsections (5) to (8), where the union has chosen to accord that member entitlement to vote in the ballot." ").

On Question, amendment agreed to.

[Amendments Nos. 52 to 56 not moved.]

12.15 a.m.

Lord Mottistone moved Amendment No. 57:

Page 42, line 41 (numbered 40, at end insert— ("( ) in subsection (7) (conduct of the ballot) the following paragraph shall be inserted at the end— (c) the ballot should otherwise be fair" ").

The noble Lord said: My Lords, this amendment seeks to remedy a mischief exemplified by the ballot paper used by the Transport and General Workers Union in the recent Ford dispute at Dagenham. On the front of the ballot paper the union asked, "Are you prepared to take part in industrial action, including strike action, involving a breach of your contract of employment?" This was the question on which the union members were asked to vote and as is required by Section 11(3) of the Trade Union Act 1984 the question is framed so that the voter is required to say whether he is prepared to take part in action involving a breach of his contract of employment. Unfortunately, in this case the benefit in having the question framed in this way was nullified by a statement of the reverse of the ballot. On the back of the ballot paper the union stated: As required by recent Government legislation the ballot paper refers to strike or industrial action being in breach of your contract of employment. This has no special significance as all strikes involve a breach of your contract of employment".

This statement is objectionable in that it suggests that the reference in question to breach of contract is a mere technicality. It may mislead union members into believing that if they strike and break their contracts of employment it is a matter of no significance. It is surely wrong that union members should be misled in this way and that it should be possible for unions to do this whilst still satisfying the requirements of the Trade Union Act.

This amendment has been suggested to me by the CBI which tells me that it has available other cases of misleading wording. The purpose of the amendment is to oblige unions to conduct ballots before industrial action takes place in a fair and objective manner.

Noble Lords may wonder why so small an amendment would have such an effect? As I understand it, the extension to the codes of practice under Clause 18 is expected to give a definition of the word "fair", hence we need fairness in an appropriate part of the primary legislation. I submit to the House that this is indeed a suitable place. I beg to move.

Lord McCarthy

My Lords, I do not wish to keep the House any longer than is necessary. However, as the noble Lord, Lord Mottistone, has introduced the amendment at this time of night, we must say something about it. He does not tell us that the Transport and General Workers Union did anything that was unfair. Surely, it is not unfair to tell the truth. The union did not say that strikes are not a breach of contract and that one can strike with impunity; it said that all strikes are breaches of contract. In other words, the employer can dismiss a person every time he strikes. What, therefore, is wrong? I do not think it is unfair at all; therefore, we cannot accept the amendment.

Lord Trefgarne

My Lords, the Government are also unable to accept the amendment. However, having said that, we have some sympathy with the point raised by my noble friend. If he will withdraw the amendment, I undertake that we shall consider the problem between now and the next stage of the Bill to see whether there is a way in which we can meet my noble friend's concern.

Lord Mottistone

My Lords, I am most grateful to my noble friend the Minister for that undertaking. Accordingly, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton moved Amendment No. 58:

Page 42, line 47 (numbered 46), at end insert— ("( ) In subsection (11) there shall be inserted after the words "In this section" the words— "industrial action" means action which is unlawful by reason of a breach of, or interference with the performance of, a contract of employment." ").

The noble Lord said: My Lords, there are two important amendments; namely, Amendments Nos. 58 and 59. I shall move the first of them shortly by making three points. The first suggests a definition of industrial action to be inserted in Schedule 3, on page 42. There is already a definition of industrial action in Clause 1(7), but obviously that applies only to that clause. It is one of those curious definitions. It reads: 'industrial action' means any strike or other industrial action by persons employed". It is rather like defining elephants by saying: "The expression 'elephant' means a bigger elephant than any other elephant".

Secondly, the width of the aforementioned definition was noted in Committee and at Report stage, and there is no equivalent definition for the purposes of the 1984 Act. Therefore, for the purposes of that Act those wide, limitless definitions of industrial action cannot apply. The reason for that seems to be—after tonight's debate it is common ground—that the 1984 Act, even after the amendments of Schedule 3, will be left with a tort of inducing breach of contract of employment, or interference with contract of employment, as the basis of the employer's or other third party's application to the court.

Therefore, the industrial action which is the relevant sphere of the 1984 Act, after the amendments—in fact, even more so after the amendments—is that of the law of tort which involves some unlawful act in relation to the contract of employment. That is why we have suggested this definition to fill a void. I hope the Government will not say that this is unnecessary, because the function of definition, where the same words are used in two senses, is surely to cure the void which may otherwise perplex the court.

The court will see the width of the definition in Clause 1 and will perhaps understand it. It will be puzzled that there is no definition of the words "industrial action" in that part of the 1984 Act which relates to strike ballots at the instance of plaintiffs other than members of the union. We therefore suggest that "industrial action" should be defined by reference to the unlawful character, which is the necessary basis, of the tort or threatened tort which the plaintiff needs to pursue in respect of his action. We suggest that in the interests of clarity. I cannot believe that that suggestion will be controversial. We hope that the Government will accept the amendment. I beg to move.

Lord Trefgarne

My Lords, this is a matter that we have discussed at some length not only at this stage of the Bill but at earlier stages. The Government's view has been expressed clearly on several occasions.

Clause 1 is framed in this way because, for example, employees can face dismissal and lose their right to apply to an industrial tribunal if they are dismissed while taking any kind of industrial action. In addition, union members will not have any difficulty in recognising "industrial action", or inducement to take such action.

A "proper ballot" for the purposes of Clause 1 is taken to mean a ballot which, among other matters, satisfies the requirements of Section 11 of the 1984 Act. Because of this linkage, entitlement to vote in the ballot must be given to: All those members of the trade union who … will be induced to take part … in the strike or industrial action", as Section 11(1)(a) as amended provides, and no member denied entitlement to vote is induced by the union to: Take part … in the strike or industrial action", as Section 11(2)(b), as amended, provides.

I could expound the Government's view at great length. I do not propose to do so, and I hope that the noble Lord will withdraw the amendment.

Lord Wedderburn of Charlton

My Lords, I shall be brief. The noble Lord has answered a case different from the case made to him. Of course we accept the definition in Clause 1. That is water under the bridge after today's debates. That part of his reply was unnecessary. My case was that we needed a definition in respect of the 1984 Act, as amended.

The Minister could have made two valid responses. He could have said, "Yes, we will have a definition, but yours is not the right one" or he could have said, "We do not need a definition because it is clear that industrial action includes breaches of contract of employment only". He has not said either of those things. He has made a response which means that persons to whom entitlement to vote in the ballot can be accorded do not necessarily coincide with the constituency boundaries of those who are induced to breach their contracts of employment. Therefore Sections 10 and 11 are not congruent. That was the point we came to in the last amendment, and I beg leave to withdraw this one.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton moved Amendment No. 59:

Page 42, leave out lines 50 to 53 (numbered 49 to 52), and insert— (" "and section 1(6) of the Employment Act 1988 shall be applied to this section for the purpose only of determining any question falling within section 1(5) of that Act, but shall be otherwise disregarded for construing references in this section and in section 10 above to a person being induced to take part or to continue to take part in a strike or other industrial action." ").

The noble Lord said: My Lords, the amendment touches upon the same matter as the previous amendment. This is an attempt to see that the Bill is not left in a confused state. First, inducement can be effective or ineffective. If I induce the Minister to get up, I have effectively induced him. If I attempt to do so and he does not hear me, I may be said ineffectively to have induced him, but that is a difficult concept. That is a distinction that the Government are making.

First, the Government say that they will extend the union member/strike ballot provision contained in Clause 1, which extends to all types of industrial action, to all ineffective inducements. We do not quarrel with that. The Government have so defined the provision in Clause 1(6). We think that it is rather silly, but there it is.

Secondly, we come to the 1984 employer-induced strike ballot where the Government have stressed, as I have said, that the basis of the provision is still the law of tort—an inducement of a breach of a contract of employment or an interference with it. I assert to the Government that in the law of tort the liability can rest upon an inducement, a procurement, a seduction, an embargo or a threat of inducement or procurement or embargo. This is one of the most important provisions of the evening. It happens to be a matter of law which will affect a lot of workers. It can never be a matter of ineffective inducement. So to apply that notion to the 1984 Act is to apply something which is out of accord with the Government's logic.

Thirdly and lastly, the Government reply appears to be that they are only applying ineffective inducement as a definition to Section 11 and not to Section 10; Section 10 will still demand proof of a threat of effective inducement to break contracts but Section 11 will not. That is even worse, because Section 11 is the section which defines the valid constituency for those who are to be induced—now the word is "induced"; it is used to be "called upon"—to take industrial action. The employer's tort in Section 10 does not respect the same boundaries as the area of inducement to industrial action in Section 11. That is true if Section 1(6) is transplanted bodily into Section 11 of the 1984 Act. But if the matter is dealt with as our amendment suggests, the Government have their way; they have their Bill. The purpose will be effective. Subsection (1) on ineffective inducements will be transferred only to that part of Section 11 which is needed for Clause 1.

One would have thought that the Government could give some certainty to all those involved by transplanting "ineffective inducements" only to Section 11 in respect of the need of it in Clause 1. This is a somewhat complex matter. I am sure the Minister has a complex brief with which to reply to it. But I urge the Minister and his advisers to look very carefully at this again, because at the moment it is a terrible mess. It needs a more restricted application of the notion of ineffective inducement to Section 11 of the 1984 Act. I beg to move.

Lord Trefgarne

My Lords, I think I am a kind and honest man. I shall therefore desist from deploying the brief which the noble Lord rightly describes as long and complex and which the House in general may find unduly wearisome. I take note of his point. I think he well understands our position. I hope that at this late hour he will see fit to withdraw his amendment.

Lord Wedderburn of Charlton

My Lords, perhaps I may say a final sentence or two. It is a grave defect in the procedure of a legislature that the Minister whose job it is to reply—it is not the Minister's fault; I well understand that—and whose job it is to explain to people what these things mean has a very difficult and complex brief. It is a very difficult and complex matter; I want everyone to understand where we are. The fact that it is late at night is a great pity. The amendment could not come at any other point than here. I hope that the Minister will find some way, other than by private correspondence, to publish the more complex technical brief. This would be so that we could understand why the Government are standing on this point. Quite frankly, I genuinely do not understand it.

Lord Trefgarne

My Lords, if I have the consent of noble Lords to speak again, perhaps I may write to the noble Lord and place a copy of the letter in the Library.

Lord Wedderburn of Charlton

My Lords, I am grateful to the noble Lord and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Trefgarne moved Amendment No. 60:

Page 42, line 53 (numbered 52), at end insert— ("(9) In section 22(6) of that Act (extent and application of Act), after the words "in Northern Ireland" there shall be inserted the words "or in relation to any unincorporated employers' association which has its head or main office in Northern Ireland".").

On Question, amendment agreed to.

Lord Trefgarne moved Amendment No. 61: Page 44, line 43, at end insert—

("The Agricultural Training Board Act 1982 (c. 9)

12A. In section 4(1)(f) of the Agricultural Training Board Act 1982 (power of Board to take part in arrangements in pursuance of the 1973 Act), for the words "section 2(1) or (2), 3(4)" there shall be substituted the words "sections 2, 3".

The Industrial Training Act 1982 (c. 10)

12B.—(1) In section 5(3)(e) of the Industrial Training Act 1982 (power of industrial training board to take part in arrangements in pursuance of the 1973 Act), for the words "section 2(1) or (2), 3(4)" there shall be substituted the words "section 2, 3".

(2) In section 15(3) of that Act (directors in pursuance of directions under section 3(1)(13) of the 1973 Act), for the words "section 3(1)(b)" there shall be substituted the words "section 2 or 3".").

The noble Lord said: My Lords, this amendment is consequential upon Clause 25. It is entirely technical, making no change of substance but simply changing some references. I beg to move.

On Question, amendment agreed to.

House adjourned at half-past midnight.