§ 8.46 p.m.
§ Lord Campbell of Alloway
My Lords, I beg to move that this Bill be now read a second time.
We speak in our ancient privacy because those parrots are now hooded in red flannel and their keepers have gone home, and God bless them.
This Bill passed your Lordships' House to fail with the dissolution of Parliament. It had the support of all sides of your Lordships' House. My noble friends Lord Carr of Hadley and Lord Renton are unable to attend on this occasion. The noble and learned Lord, Lord Wilberforce, was to have spoken in support of the Bill but also is unable to attend tonight. The House will be sad to be deprived of his contribution. Other noble Lords who were to have spoken do not seem to have appeared on parade but there is always hope that they may do so. That is just one of the exigencies of the service.
On this occasion your Lordships will have the advantage of hearing the Master of the Rolls, the noble and learned Lord, Lord Donaldson of Lymington, in person rather than hearing an expression of his views at second hand from me. An expression of gratitude is due to Her Majesty's Opposition for ceding their priority in the order of speeches to the noble and learned Lord the Master of the Rolls so as to ensure that in his position of high judicial office he has no taint of political controversy when he adverts, as no doubt he will, to the burdens upon litigants and the judiciary which would be eased if this Bill were to reach the statute book.
The need for this Bill was discussed the first time around on 31st October (at cols. 183 to 202 of Hansard). It does not require repetition, certainly at this hour of the night. The matter is clearly devoid of any party political consideration.
The object in reintroducing the Bill on this occasion is to seek by reasoned argument on the Floor of your Lordships' House to induce the Government to accept the Bill and by meeting each 945 and every objection taken by my noble friend the Minister the first time around in the hope that we shall be able to indulge in a courteous and constructive debate and not be subjected to a mere restatement of objection on the old departmental brief rewritten precooked for this occasion.
Assuredly this is not an attack upon the Government. It is only—and we come back again to "only"—an appeal to reason, an appeal to the open mind, to remedy what the whole House has accepted was an injustice, and an intended injustice, apparently not recognised by the department as such; an injustice arising out of a fixed penalty for a mandatory period of 28 days between ballot and industrial action only when the taking of such action was inhibited by legal proceedings. Resort to the exercise of judicial discretion is proposed not only to afford flexibility but to avoid undue delay.
So let me come, with your Lordships' leave, to the grounds of objection taken by my noble friend the Minister on the last occasion which appear to fall under four heads, and for the purpose of calm and courteous debate—the hallmark of your Lordships' House—may I deploy a reasoned refutation of these objections?
The first head is that the situation which arose in the British Ports v. PLA case was unusually complicated, quite unique and unlikely to occur again because the employment was regulated by some special statutory scheme and that we ought not to amend legislation which has worked well because of events relating to a special case. I am in effect quoting from verbatim passages of the objections of my noble friend the Minister. There are two passages from which I am quoting.
This is a fundamental and most serious misconception. I do not lay it at the door of my noble friend the Minister—he is not a lawyer; he does not operate in the courts, even as a mere Queen's Counsel as I do myself—it is a departmental view. But it is a most serious misconception as the noble and learned Lord, Lord Donaldson of Lymington, will no doubt explain with the benefit of long and vast experience and with all the authority which his high judicial office commands.
The second objection is the fear that an undue time between ballot and industrial action would undermine the ballot. Of course it would. The department misses the point. That is why the Bill affords the flexibility of judicial discretion as to whether or not to extend the period to avoid any such undue period arising, as no doubt again the noble and learned Lord the Master of the Rolls will confirm.
The third category of objection—there is only one more and I shall not detain your Lordships for longer—is that absolute judicial discretion is afforded to extend the time limit without guidelines or principles. First, this was acceptable to your Lordships on all sides of the House on the first occasion; and, secondly, this is the form of spurious objection which is absolutely impossible to meet unless the Government were to come clean and table an amendment to fetter the period of extension, to provide guidelines, to provide principles. I cannot 946 in any event understand why any such provision should be requisite. Surely on a matter such as this we should trust the judges to apply common sense to this situation as since debate on the first occasion the TUC has done and does today. Trust the judges to apply common sense to produce a sensible solution.
For the last objection I have to quote from Hansard. Unless I do I cannot make sense of it. It reads:The 1984 Act fixed the limit at 28 days from the date of the ballot. If it had become apparent that the wrong limit had been adopted, the Government would certainly be prepared to come forward with proposals to make whatever adjustments were necessary. But it is surely right to reflect on whether there is real and significant evidence that this was an inappropriate approach."—[Official Report, 31/10/88; col. 199.]It is a wonderful government brief, but nobody has ever said or suggested that 28 days was the wrong limit. The objection misses the whole point. It is totally misconceived. Whoever cooked it up, heaven knows, because it has no relationship to reason, to logic or to the issue which we are considering and it is wide of any relevant argument to the reasoned justification for this Bill.
So the hope is that on the reasoning that I have sought to deploy the objections raised by my noble friend on the last occasion have been met, and fairly met, and disposed of. If they have not—and it is not a question of conceit or hubris—let my noble friend in the course of fair debate explain why I have not met them. If he cannot explain why I have not met them, then perhaps the Government may be persuaded to withdraw these objections and accept this Bill or at all events do the courtesy (and the reason) of introducing amendments if so advised at Committee stage. I commend the Bill to your Lordships.
§ Moved, That the Bill be now read a second time.—(Lord Campbell of Alloway.)
§ 8.58 p.m.
§ Lord Donaldson of Lymington
My Lords, I congratulate the noble Lord, Lord Campbell of Alloway, on having revived this Bill, if that is the proper term. It has two great merits, as I see it—merits which indeed may be almost unique. First, it is extremely brief. Secondly, it has some importance. Its brevity is self-evident, but I should like to say a word or two about its importance.
It arises in this way. Ever since the last century, Parliament has refrained from giving trade unions and their members any positive right to take industrial action. Instead it has proceeded by the path of giving them immunity from the general law, provided that certain conditions were met. Noble Lords may say that that makes very little practical difference, but I venture to suggest that that is not correct. Citizens who have positive rights under the law come to the courts when they think that their rights have been infringed, and they come to the courts seeking assistance in enforcing their rights. In consequence, they perceive the courts as being on their side.
It is quite different where the immunity approach has been adopted. Trade unions are forced to go it 947 alone, and the law and the courts only come into the picture when the unions are said to have overstepped their immunity. The consequence of that is that by and large trade unions never feature in the courts except as defendants. Little wonder then that many of their members, quite wrongly as it happens, see the law, the courts and the judiciary as their opponents. Little wonder that trade union officials, particularly senior trade union officials, have some difficulty in persuading their members of the advantages of the rule of law. It seems to me that the powers contained in this Bill, if granted by Parliament, would enable the courts to demonstrate that in appropriate cases both they and the law are on the side of the trade unions.
As I understand the matter, the Government maintain that it is important that, if industrial action is to be taken, it should be done within a reasonably short period after the ballot is taken. The Government further maintain that 28 days is the appropriate period. As a serving judge it is not for me to agree or disagree with either of those propositions. But in the docks case, the Transport and General Workers' Union did not have 28 days. Indeed, it did not have any days at all because throughout the period it was either threatened with an injunction or was in fact subject to one. It seems to me that that was the plainest possible injustice.
On that occasion the Government's answer, as the noble Lord said, was that this was an isolated case and was unlikely ever to recur. I am bound to say that that seems to me to be a triumph of hope over all experience. Certainly, my experience both as a practising lawyer and as a judge has been that where there is sufficient money at stake—and there often is in industrial disputes—one or other of the parties will not hesitate to take legal proceedings purely with a view to achieving delay. The merits of their case will be quite irrelevant. The costs will be totally insignificant. All that they will be seeking, win, lose or draw, is to achieve delay.
As judges we are not unaware of the facts of life. As judges we seek to identify those cases and frustrate the achievement of the party's objectives by expediting the cases. But there is a price to be paid and it is a price which is paid not by the parties to that sort of litigation but by the other parties to subsequent litigation waiting in the lists, parties who have real and genuine points for consideration by the courts. It is they who pay the price when their litigation is postponed.
I do not for one moment suggest that the dock employers in the docks case were seeking delay. They had a perfectly genuine point, even if there were some of us who were more than a little surprised when, at an intermediate stage, they succeeded. Nevertheless, it was a perfectly respectable and genuine point. But I have no doubt that from that case a rather different lesson will be learnt by other employers. At the risk of telling them something which they may not have appreciated, perhaps I may suggest that they do not follow that precedent too slavishly.
In the docks case the employers began their proceedings before the ballot was called. Other 948 employers would do much better to wait until the result of the ballot is known or even a little longer and then start their proceedings. I feel sure that with a little ingenuity they will be able to think of some plausible excuse for such a late start. It would have the great merit from their point of view that it would improve their chances of being able to keep the trade union in baulk until the expiry of the 28-day period.
As I said, I and my brother judges will do our very best to frustrate those tactics. But that takes time. One cannot just dismiss a claim without hearing it—and we only have the remains of a fixed 28-day period in which to do it. At best we shall cause delay to other deserving litigants. At worst we shall fail. Given the power contained in the Bill, employers will know that any legal action designed purely to achieve delay and to force the union into a second ballot will fail.
I come to the last point that I want to make. On the last occasion that this Bill was debated, it was suggested that it risked creating a situation in which unions might positively welcome proceedings because they might provide them with an opportunity of extending the relevant limit which otherwise would apply. That seems to me to be a wholly unfounded fear. The unions themselves cannot start proceedings calling in question their own ballot. The need to extend the period can only arise if the employers have taken legal action, and it is most unlikely that the employers would do so if they thought, on the facts of a particular case, that the union would welcome it.
In any event, whether I am right or wrong about that, your Lordships may be confident that the courts, in operating this power if it is granted to them, would be mindful of the parliamentary intention clearly expressed in the main Act of keeping the interval between the ballots and industrial action as short as possible. They would therefore grant the minimum extension of time necessary to preserve the trade union's rights. I commend this Bill to your Lordships.
§ 9.7 p.m.
§ Lord Irvine of Lairg
My Lords, it is a pleasure to follow the noble and learned Lord, Lord Donaldson of Lymington, the Master of the Rolls. The noble Lord, Lord Campbell of Alloway, in the previous Second Reading debate, explained that he had the authority of the noble and learned Lord in his absence to communicate his views to your Lordships' House.
As I understand it, the essential point is that if a labour injunction case has to go through the whole appellate process, and perhaps even to the Court of Appeal without going to the House of Lords, then the four-week shelf life of the ballot to authorise industrial action may have expired well before the courts have been able to decide finally. The remedy therefore proposed by the Bill is to allow the courts at the end of the legal process a discretion to give the ballot result a longer shelf life as authority for industrial action.
Those who have supported the Bill, including myself, must remind ourselves that our reason for 949 doing so is to save trade unions the needless inconvenience and expense of a further ballot on account of the law's unavoidable delays postponing a final legal decision until after the expiry of the four-week period. On that basis we accept the Bill in good faith and have suppported it.
If noble Lords will forgive a repetition of what I said at col. 193 of the Second Reading debate on 31st October, I stated:Sensibly, the Bill says that the solution is to allow the judges, after they have finally had their say, and if they have ruled that the industrial action is lawful, to extend the four-week period beyond the period covered by the law's inevitable delays".I desire to emphasise "inevitable delays".
The noble Lord, Lord Campbell, spoke at col. 185 of the,all but intolerable burden [imposed] upon the judiciary at the expense of other litigants whose cases have to be taken out of the list",of concluding all the appellate stages of a difficult labour injunction case within a mere four weeks.
I desire to make the basis of my support for this Bill very clear. It is not to enable the special expedition that is traditionally accorded by the courts to these important cases to be denied so that they take an ordinary place in the queue of appellants to the Court of Appeal, all of whom naturally believe that their cases require the speediest consideration. Every appellant believes that. My support recognises—I hope in a practical way—that even if the utmost expedition is given to these cases, as it should be, the law's "inevitable delays" may still cause the four weeks to expire before legal finality is secured.
I do not understand that the Opposition, in supporting the Bill, are supporting what could in practice become a cooling-off period, unsanctioned by Parliament, as a result of the law's delays. By that I refer to a situation in which the Court of Appeal would not treat an appeal by a trade union against the grant of an injunction as deserving—as traditionally it has been—of expedition, on the basis that the law's delays could in theory be remedied by the court extending the four-week shelf life of the ballot as authority for industrial action. I hasten to say that nothing that I have heard from the noble and learned Lord, Lord Donaldson of Lymington, indicates to me that there is any ground for apprehension in that regard.
However, two things would be wrong with that from the standpoint of the trade union interest. First, the trade union interest is, and must be, always to take action when the iron is hot. When trade unionists vote for industrial action they want to take it there and then. "Phoney wars" run counter to resolute action. Secondly, there is no guarantee under the noble Lord's Bill—and this must be appreciated—that the four-week period will be extended by the court. I do not doubt that the noble Lord, Lord Campbell of Alloway, will make that plain when he speaks at the conclusion of the debate.
§ Lord Irvine of Lairg
My Lords, the noble Lord does so from his seat. The court in its discretion may 950 decide that lapse of time, or any changes in the situation on the ground drawn to its notice, suggest to it a possible change of mood on the part of those balloted so that there ought to be a fresh ballot. Therefore I simply make this point. I do not apprehend such a position but I draw it to the attention of the House. The Bill could turn out to be a poisoned chalice if what resulted was, first, loss of expedition, and, secondly, no extension of the shelf life of the ballot beyond the four weeks.
That is why I emphasise that my support for the Bill is predicated upon continued expedition for appeals to the Court of Appeal in this class of case accompanied, I hope, by a sensible recognition that even with that expedition the law's inevitable delays make the discretion sought for the judiciary by the Bill desirable.
I continue to support the Bill on that basis. I emphasise that I could not continue to support it if it was to be taken as a parliamentary nod and wink to the judiciary that these important appeals could be treated with less expedition—within a system I recognise as burdensome—than they have been traditionally accorded.
§ Lord Irvine of Lairg
My Lords, I am obliged. I accept the Bill in good faith. I accept what was said by the noble and learned Lord and I support the Bill. I confess to surprise at the position expressed on Second Reading by the noble Lord, Lord Strathclyde, that in all circumstances the ballot must have a finite shelf life of 28 days so that Her Majesty's judges may not be trusted with a discretion to extend it in proper circumstances.
The noble Lord, Lord Strathclyde, gave the Government's explanation for opposing the Bill. It was that after four weeks,the views expressed by voters in the ballot might no longer be an accurate guide to whether they were content for their union to authorise or endorse the action at the time it actually did so".—[Official Report, 31/10/89; col. 199.]Perhaps at this hour of the evening we can enjoy a little light entertainment. In the light of what he said in that debate, can the noble Lord give the House his assurance that in a year's time the Prime Minister will not claim that a new ballot on her leadership is entirely inappropriate because yesterday's ballot is obviously of continuing application until the next general election? We have it on the authority of none other than Mr. Kenneth Baker, chairman of the Conservative Party, that the ballot has settled the issue of the leadership of the Conservative Party until the next general election. To the best of my information the maximum possible timescale is anticipated until that unavoidable event occurs. So I take the Government's position to be that trade unionists become fickle after four weeks but Tory Members of Parliament remain constant for two years plus. We shall see.
At this late hour I do not desire to repeat at any length what I said on the last occasion. But I wish to say that although I support the Bill it is not the true remedy. That remedy is to change the substance 951 of our labour laws so that these complex labour injunction cases calling for these appeals arise far less frequently than at present.
The appeals arise substantially as a result of the ingenuity of the judges to invent new torts which fall outside the specific immunities for lawful industrial action which Parliament has defined. As far as the next Labour Government are concerned, the judges may get on with developing the common law and inventing new torts to their hearts' content. That is what they are paid to do. We shall encourage them to do so because we are as interested as they in the development of the common law. But in practice we shall get rid of these complicated injunction appeals—not entirely but substantially—which have inspired the Bill by legislating, as I intimated at col. 195 of the previous debate, that,The immunities will apply to any civil liability, regardless of the label that the judges put upon it, which otherwise would result from primary industrial action in furtherance of a trade dispute, though obviously not to any breaches of the criminal law or trespass to land or the person".Contrary to what was said on the last occasion by the noble Lord, Lord Strathcylde—and in this regard I identify myself with the comments of the noble and learned Lord, Lord Donaldson—it is not the case that these difficult labour injuction cases which go to appeal and cause the trouble are so rare. I do not know who was advising the noble Lord when he informed the House, at col. 200:With the exception of the docks case, there have been very few proceedings relating to torts other than those covered by the statutory immunities".There is a long history of such cases. However, I regard the noble Lord's Bill as a temporary palliative to assuage the symptoms of an illness which we shall shortly have the opportunity to cure at source. Meanwhile, I am happy to give it my support.
§ 9.20 p.m.
§ Lord Rochester
My Lords, I am on parade and from these Benches I should like to reaffirm my support for the Bill which the noble Lord, Lord Campbell of Alloway, has now revived.
I hope that it will not be thought unduly repetitous of me to remind the House that on Second Reading of the dock work Bill I felt bound, as a Liberal and a Democrat, to voice my disquiet at the extent to which under current legislation employers were able to obtain injunctions impeding strike action not covered by trade union immunity. As I saw it, people were thus increasingly being denied the right to withdraw their labour within the law. That was what happened during the period leading up to the dock strike, when prior to the reversal of the earlier judgment many registered dock workers in a number of the larger ports felt so frustrated that they were unwilling to await the outcome of what became a protracted legal process before taking unofficial industrial action.
In our earlier debate I said that my concern on this point should not be construed as a criticism of the judiciary. I suggested only that the law which it was the duty of judges to administer might in the 952 light of the differing verdicts of the courts in the case of the docks dispute be in need of a more general review than we were then able to give it.
However, I thought that it was significant that later in that debate—and he has said somewhat the same thing this evening—the noble Lord, Lord Irving of Lairg, himself a distinguished lawyer, said that the dock case illustrated the propensity of judges to invent new torts not covered by immunity which might exist in law and thus afford grounds for granting injunctions. The noble Lord then went so far as to say that most reasonable people who were not lawyers would find that "utterly bizarre"—I believe that was the phrase which he used. His conclusion—and he has reaffirmed this today—was that immunity should apply to any civil liability which would otherwise result from primary industrial action in furtherance of a trade dispute.
I would put it rather differently. My father was a Liberal Member of the Parliament which in 1906 established the system of immunities which has operated in this country ever since. Following what the noble and learned Lord the Master of the Rolls has already said, perhaps I am in a good position to suggest that the time may have come for further consideration to be given to the introduction of legislation corresponding to that already operating elsewhere in Europe under which people would have a positive right to take industrial action following a properly constituted ballot, subject to the safeguarding of national security, the operation of no-strike agreements and, I hope, special provisions for the determination of pay and employment conditions in essential public services.
Frankly, I was not impressed by the reasons earlier given by the noble Lord, Lord Strathclyde, for the Government's opposition to the Bill now before us, relying largely, as he did, on what was called the "unique circumstances" of the dock case proceedings. Surely the validity of legislation should be judged on the basis of its principles rather than the frequency of its application.
On this occasion I shall be particularly interested to hear the outcome of the close study which the Minister said the Government would give to the suggestion of the noble and learned Lord, Lord Brightman, when we last debated this matter that they might consider adding at the end of Clause 1 of the Bill such words as "to enable such legal proceedings to be concluded".
My noble friends and I supported much of the Government's earlier trade union legislation, but in my view they should now show a willingness for it to be amended in the light of experience, particularly when, as in this case, they are so advised by members of all parties and by lawyers as eminent as the noble and learned Lord, Lord Donaldson.
In conclusion, I feel bound to say that it is time that the Government began to think less in terms of continuing restrictive legislation in this field and more of positively encouraging greater co-operation between management and employees and their representatives in the interests of improving industrial relations in our country.
§ 9.25 p.m.
§ Lord Hayter
My Lords, one of my favourite quotations is,Ah what a dusty answer gets the soulWhen hot for certainties in this our life".Your Lordships may recall that the last time this Bill was debated there were nine speakers, all hot for certainty in connection with this Bill, before the Minister gave us a dusty answer. When one reflects that those nine consisted of a judge, several barristers and, even more important, some laymen like myself, surely it must be recognised that not all of us were wedded to the TUC. We felt that a mistake had been made which should be rectified.
What is the main issue in this debate—the government check on strikes, or to set up a four-week time lapse? It was well argued. The TUC, I gather, did not like it at the time, but it has been agreed and it is now part of the law of the land.
One must look at what the Minister said:The Government—I hope noble Lords will share our concern about this point—would not want to risk creating a situation in which unions might welcome proceedings because they might afford the opportunity to extend the relevant limit that would otherwise apply".—[Official Report, 31/10/89; col. 200.]I would turn that argument upside down. It is the other way round. If we do not have this amendment, the further proceedings will smack to me of stifling the opposition. For my part I am perfectly happy to let the courts decide.
Perhaps I may broaden the issue. We have been reading recently of how democracy in Eastern Europe has had thousands and thousands of people on the streets protesting about various issues and on the whole winning their way. There are not, as I can see, thousands and thousands here tonight, but we must not forget that when we had our last debate we had 100 per cent. in favour of the Bill until the Minister spoke. What will happen now? I hope not a repetition of the last session.
It may be in the minds of most us here that a couple of days ago the Chancellor of the Exchequer was forthcoming enough to say that he shared in some mistakes that were made some time ago. I beg the Minister to believe that in so doing he went up in people's estimation, not down. Alexander Pope said a long time ago that a man should never be ashamed to own he has been in the wrong; in other words, that he is a wiser man today than he was yesterday. I commend that saying to the Minister and I hope that he will act on it.
§ 9.29 p.m.
§ Lord McCarthy
My Lords, in this debate we have rightly thanked the noble Lord, Lord Campbell of Alloway, for his expedition in reintroducing this Bill. I particularly want to thank him because the last time we debated this issue I unfortunately had to leave before hearing the reply of the Minister and therefore I have the opportunity—as the noble Lord, Lord Campbell, has this evening—of trying to answer the point that was made.
I agree with the noble Lord, Lord Campbell of Alloway, that the Minister put forward four points, 954 four arguments and four objections, but I do not believe that they are quite the same objections that the noble Lord, Lord Campbell, has suggested. First, the Minister said, and I believe also the noble Lord, Lord Campbell of Alloway, that the case we were debating was exceptional, peculiar or unique. I refer to the Official Report of 31st October, at col. 199. As I understood it, he said that it was the exceptional, peculiar or unique nature of the case which occasioned the delay. I do not believe that is the case.
Secondly, it seemed to me that the Minister was saying that in any event the case we were debating was settled in favour of the unions. If that is so then what was anyone worrying about? Thirdly, he said that if some case did remain to deal with the legislation as it stood, then the Bill as put forward by the noble Lord, Lord Campbell of Alloway, has something wrong with it. In particular, it permitted the judiciary an unlimited period of discretion, according to the Minister. He said that the Government could not accept it for that reason.
Finally, the Minister made a point which has been mentioned in this debate; namely, that we must not accept this Bill because the unions could use it to their advantage to prolong the 28-day period. I deal first with the unusual element. I believe the Minister spelt it out in his speech by saying that at the court of first instance the employers were arguing that there was a statutory obligation to work. The Minister appeared to be saying that it took 10 days to settle whether or not that was the case. If that was so then the question was whether the unions could enjoy any immunity.
There are several points that one could make about that. Even if the matter had not taken 10 days but five, as the noble and learned Lord, Lord Donaldson, said, there might well still be difficulty. Indeed, if the hearing had taken five days the matter would still have been out of time. It was not just the fact that the issue had been debated for 10 days in the court of first instance but it was certain that whoever lost at that stage would take an issue of this kind to the Court of Appeal. Whoever lost at that stage would take the issue to the House of Lords. That is the fundamental reason for the delay.
It is not really an argument to say that there was a statutory obligation to work and it took 10 days to settle the dispute. As the noble and learned Lord, Lord Donaldson, has said—and this is the first time I have appreciated the point—in future the employers could be rather more crafty and clever than they were in the docks case. They need not have started the action until the ballot had taken place and it had gone the wrong way from their point of view. I consider that the argument that there was something exceptional, peculiar and unique as the matter was considered at the court of first instance is one that does not run.
We were told by the Minister that the basis of the argument advanced at the court of first instance was the only possible basis and that there was something very exceptional about it. The argument went in favour of the unions. As has been said by previous speakers in this debate, the kinds of arguments that 955 can be advanced in asking for an injunction can be very varied and different. An argument does not have to be as narrow, specific and special as the argument used in this case.
As I understand it, at the Court of Appeal the basis of the argument was changed. There the argument was about the public interest and issues that were not at the forefront at the court of first instance. The argument was changed in this case. We all know that in a request for an injunction all kinds of arguments may be used. It may be said in future cases that there were certain alleged irregularities in the balloting process. It may also be said that there was certain evidence of secondary action. It may be said that there were incidents that took place on the picket line which themselves were unlawful. These and many other circumstances could be alleged, and they could be the basis for an injunction.
All these arguments might fall at the trial because the standard and basis of evidence which is required to get an injunction is significantly different from that which is required at a full trial. That is the problem faced by the unions in the injunction process. Therefore to say, as the Minister says, that this case went in favour of the union does not stand up.
Thirdly, the Minister said at col. 200 of the Official Report for the same day that there was something wrong with the Bill. The noble Lord, Lord Campbell of Alloway, dealt with that point. The Minister said that there are no guidelines on how far the courts might wish to extend the 28-day period. He complained that there was no maximum and that there should have been a maximum in the Bill. As the noble Lord, Lord Campbell of Alloway, said, if that is the Government's primary objection to the Bill they could let the Bill go forward and in Committee propose amendments along those lines. Indeed, I am certain that the noble Lord would accept amendments of that kind if it were the price of gaining the Government's support.
§ Lord McCarthy
My Lords, the noble Lord says that he would.
Finally, we come to the daftest of the Government's objections. This has been mentioned but I want to say something about it. The Minister said, also at col. 200 of Hansard:The Government would not want to risk creating a situation in which unions might welcome proceedings because they might afford the opportunity to extend the relevant limit that would otherwise apply".There are three points to make. First, as the noble and learned Lord, Lord Donaldson, said, unions do not bring cases. In this process they are arguing that the action which they take is lawful. That is their argument. It is employers who say that the actions complained of are unlawful. Therefore if unions would like employers to bring cases in order to extend the immunity period, it must be because employers are stupid enough to do so. We are talking about an employer's own goal.
956 Secondly, even if this were to be the case, it is extremely unlikely that the unions could possibly gain any net advantage on a 28-day overall period. The courts would be extremely reluctant to give them more than 28 days overall. The chances are that if they went through the process and came to the end of the 28-day shelf life, as my noble friends called it, the courts might say that they needed another seven days. But for most of those 28 days they would have been in court. Therefore the period when they could effectively seek to organise strike action would be much less than 28 days, and thus there would be no net advantage to a union.
Most important of all, for the Government seriously to argue in this way suggests that they have no idea of what is involved in arresting a desire for strike action sanctioned by a strike ballot. Nothing can compensate a trade union and a work group for a forced return to work immediately after an affirmative ballot. This is an abortive landing. It is disastrous for the morale and solidarity of the workforce. The idea that any trade union would seek to engineer a situation in which a series of injunctions could be imposed upon it so that in the long run it could extend the 28 days is extraordinarily unrealistic and in some ways typical of the Government's approach to industrial relations legislation.
Finally, I want the Government to specify the circumstances in which they would be prepared to listen to arguments of the kind that have been advanced in the House tonight. I suspect that we shall hear, though I hope I am wrong, a defence of the status quo from the Government this evening which is in all terms extremely similar if not identical to the argument put forward last time. Therefore my concluding point to the Government is this. If I understand their position correctly, they are grateful for a debate of this kind. Indeed, they are grateful to the noble Lord, Lord Campbell of Alloway, for raising the issue in the first place—at least, that is what they said in the Official Report at col. 198.
The Government intended to allow the trade unions 28 days to plan a strike after an affirmative ballot. They said so at col. 199. That was their intention in the first place. Further, in col. 200 they said—or rather, they implied, because I cannot quote them directly—that they would revise or in certain circumstances correct legislation which in terms does not in general allow trade unions 28 days in which to plan a strike. The position is that we have only one example; that is, an exceptional, peculiar and unique example. However, it seems to me they are saying that if there were a sufficient number of cases which showed that unions in general do not receive 28 days to plan strike action they would come forward with amendments or legislation or they would at least be more sympathetic to a measure of this kind.
Therefore my question to the Government is: how many examples will be needed to convince the Government? If not tonight, then when?
§ 9.40 p.m.
§ Lord Brightman
My Lords, the luke-warm response of the Government to this Bill when it was introduced in the last Session appears to me to be based upon an assumption that an employer who challenges the validity of a strike is unlikely to appeal a decision against him or, if he does appeal, that the proceedings will certainly be concluded within 28 days.
The 28-day period is adequate if the lawfulness of the strike is not challenged. It is also probably adequate if the challenge does not go further than the High Court. It may be quite inadequate if the challenge is the subject matter of an appeal.
I ask your Lordships to consider this scenario. On day 1 a strike ballot is concluded and is in favour of a strike. The employer thinks that the strike is unlawful and when the result of the ballot is known seeks to restrain the union officers from implementing the ballot. Let us assume that the employer, acting with exemplary speed, issues proceedings, prepares all the necessary papers and serves them on the union by day 3. Pending the conclusion of proceedings, the calling of the strike will normally be restrained by agreement or court order. The employer will have to give the union two clear days' notice of the initial court hearing, which will accordingly take place on day 6. The union will be entitled to time within which to get its evidence in order and five days may easily be needed. That brings us to day 11. The employer is entitled to file evidence in reply and may need to do so. If he needs three days, we are now at day 14.
The case must now go before the judge. I shall assume that that can be arranged for day 15. The argument can easily last a day and the judge may want to consider the judgment overnight. Therefore, we have now reached day 16. The judge decides in favour of the union. On day 17 the employer considers the judgment with his solicitors and counsel and decides to appeal. The papers must be prepared for the Court of Appeal and lodged with the court. That process will take a day. Therefore, we have now reached day 18. It might easily be two days before the Court of Appeal can hear the case. This means that we have now reached day 20. Again, the argument may last a day and that brings us to day 21. The Court of Appeal, I shall assume, gives judgment on day 22.
Six days in hand?—not necessarily. In 28 days there are eight Saturdays and Sundays. Courts do not normally sit on Saturday and Sunday, nor do barristers and solicitors necessarily work every Saturday and Sunday; and so the scenario, which has preceded at exemplary if not breakneck speed, has taken 30 days, two days outside the permitted 28 days. The union if ultimately successful must now inititate a second ballot.
The scenario that I have suggested demonstrates in my opinion how easy it is with the best will in the world for court proceedings to outlast the 28-day period during which the strike, to be lawful, must start, through no fault of the union or anyone else. Surely the court should have the discretion to extend the 28-day period to enable legal proceedings which 958 have been prosecuted with the utmost dilgence to be concluded. My noble and learned friend Lord Wilberforce who is unable to be here this evening has asked me to tell your Lordships that he supports the Bill.
§ 9.46 p.m.
§ Baroness Turner of Camden
My Lords, I support the Bill presented to the House for the second time by the noble Lord, Lord Campbell of Alloway. We are all grateful to him for his persistence in bringing the Bill back for your Lordships' attention. I hope that in the intervening period since the last Second Reading debate on 31st October the Government have had time to reflect upon the good sense and fairness represented by the proposed measure.
The aim of the Bill is to rectify an injustice and lack of equity which were not envisaged when the 1984 trade union legislation was introduced. We have had a number of distinguished contributors to the debate and in view of the lateness of the hour I do not wish to detain the House longer than necessary with repetitive explanations.
The issue is relatively simple. The Government decided way back in 1984 that trade unions should qualify for immunity from actions in tort only in instances where they are running industrial disputes and have first balloted their members and obtained a majority vote in favour. We are indebted to the noble and learned Lord, Lord Donaldson, for an explanation of the whole question of immunities.
Unions then had 28 days in which to organise and implement that mandate. If the 28 days were exhausted the ballot had to be run all over again. The Government's reasons for laying down that period were given by the noble Lord, Lord Strathclyde, during the Second Reading debate on 31st October. What he said has already been quoted by my noble friend Lord Irvine of Lairg, but it is important and I should like to quote it again. He said:It follows that to allow an unlimited or unduly lengthy period of time between such a ballot and the union's authorisation or endorsement of the action would be inappropriate in any circumstances. If this could happen, the views expressed by voters in the ballot might no longer be an accurate guide to whether they were content for their union to authorise or endorse the action at the time it actually did so. Where there has been such a delay, a union should re-ballot".—[Ofcial Report, 31/10/89; col. 199.]Similar reasons were given by the Minister's right honourable friend for refusing to accept the Opposition's proposition that the time limit was too short and should be extended when the original 1984 legislation was before Parliament; nevertheless, it is not usually in the interests of the union to delay once there is a majority vote in favour of dispute action. That point has been made by a number of noble Lords. I should like to add my comments because I have had some experience in such matters as a former trade union official.
Normally all possibilities of settlement by negotiation will have been exhausted before the dispute starts. The Government seem to be under the misapprehension that unions use the strike weapon as the first rather than the last resort. Let me tell the Minister that that is not so. I speak from 959 my experience not just as as a senior official of my union for many years but as a member of the TUC General Council for over eight years. Negotiated settlements very rarely make the headlines but they happen all the time. Negotations are what union officials are employed to do. Union officials know only too well that disputes are costly not only to the union but also the individual members, many of whom suffer hardship in the process.
However there are situations where there seems no alternative. If that is so, it is absolutely vital for the union, which of course wants to win the dispute as quickly as possible, to strike while the iron is hot, as my noble friend Lord Irvine said earlier in the debate. The union's members, having voted for the dispute, will be keyed up waiting for the next move. It is important for the union's leadership that this impetus is not lost. But those who drafted the legislation in 1984 did not, I think, envisage a situation in which the 28 days would be absorbed entirely by legal actions initiated by the employers.
This is no longer a hypothetical matter, as everyone knows. It happened in the docks dispute earlier this year. I shall not go over the history in detail; it is well enough known. Suffice it to say that here we had a union led by a general secretary who was determined that his union would stay within the limits laid down by legislation. He was not going to risk his union's future by crossing over those limits. So the dispute which followed the abolition of the statutory dock labour scheme was run strictly in line with legal requirements. There was a ballot; there was a substantial majority in favour. But before action could commence the employers issued writs in the Chancery Division claiming injuctions and damages against the union.
The motions came before Mr Justice Millett on 18th May and the hearing extended over eight days. The employers lost and went to appeal. The Appeal Court found in substance against the union. The union appealed and this time won in the House of Lords.
I must emphasise that the courts acted very speedily—much more quickly than they normally do. I do not know how many other litigants had their actions postponed in order to accommodate all this. I am sure there were some and I do not doubt that they were not very pleased. Nevertheless, the whole of the 28 days was absorbed and the union found itself out of time. So it had to ballot again. From the union's point of view valuable time had been lost. Although it had won the legal argument, the real gain was all the employer's.
The Minister said at the last debate on 31st October that this was an extraordinary state of affairs that was most unlikely to recur. The dock labour 960 scheme was an extraordinary scheme the like of which did not exist elsewhere. It had now disappeared; therefore the same set of circumstances was unlikely to be repeated.
I must say that I cannot agree. Lawyers always seem to me to be able to find arguments if they are employed to do so. Sometimes the issues have not been raised before. Who would have thought, for example, that such a politically charged concept as the "public interest" would have weighed as heavily with the Appeal Court judges as it did in the dock work case? As was pointed out by the Guardian at the time, even in the highly restrictive framework established in the last decade there was no provision directing the court to consider such a notion. Yet in this case the Appeal Court did. The unexpected can and does happen.
The access of unions to immunity depends on a number of issues, chief of which is a ballot of members in favour. But organising ballots is often difficult. This is particularly true where the workforce is widespread, possibly changing and peripatetic. A challenge could be made to the ballot, perhaps a challenge instigated by an employer and there could be a series of actions in the court. Even if the union won at every stage it could still find itself at the end, as the Transport and General Workers did, out of time.
The Government have recently been fulminating against unofficial strikes. I have to say, contrary to what appears to be the government view, that union leaderships do not like unofficial disputes either. They do not like them because it means that they then lose control of the situation. They do not like that to happen. Nevertheless, if there is frustration and if members think that it will be impossible to run a dispute and keep within the law there will be many more such disputes. There is a widespread view already that the Government have made things too difficult and have erected too many hurdles in the way of employees who wish to voice discontent and that the Government's real view is that employees should put up and shut up. I have to tell the Government that that will not wash and it cannot last.
It really would be sensible for the Government to heed the comments of the distinguished contributors to the debate this evening and take the opportunity presented by the noble Lord, Lord Campbell of Alloway. The proposed Bill does not suggest that unions should have unlimited time, simply that the courts should have discretion, or at least that unions really are allowed 28 days because, as things stand at the moment and as has been pointed out, in the dock dispute the unions did not have 28 days. The Bill is aimed at greater equity and I hope that the Government this time round will give it support.
§ 9.56 p.m.
§ The Parliamentary Under-Secretary of State, Department of Employment (Lord Strathclyde)
My Lords, once again this debate has illustrated the experience and indeed expertise of all those who have spoken tonight. My noble friend Lord Campbell of Alloway made a most gracious introduction to this debate. In that introduction my noble friend appealed for reason and for a calm and courteous debate. I believe that so far we have had such a debate. Furthermore, I hope that we shall be able to continue in that manner. I shall try to explain why the Government are not entirely convinced by the arguments of my noble friend and other noble Lords who have spoken.
Following the Second Reading debate on this Bill last Session, we have carefully studied what was then said, and indeed the noble and learned Lord, Lord Donaldson of Lymington, has corresponded with the Secretary of State about matters of concern to him. I shall respond briefly to the noble and learned Lord and to the noble Lord, Lord Irvine of Lairg, as regards the burdens imposed on the court system. The Government appreciate that ensuring expeditious hearing of priority cases inevitably causes some disruption to judges, listing officers and parties involved in less urgent cases. However, it is much to the credit of both judges and listing officers that priority cases are dealt with so expeditiously and with minimum delay to other business.
I have to say that, despite all that has been said during the course of this debate, there remains a fundamental difficulty about the proposition that the courts should have discretion to extend the 28-day period. To allow an unlimited—or unduly lengthy—period of time between such a ballot and the union's first authorisation or endorsement risks creating a situation in which the ballot result no longer accurately represents the views of union members. Voters in an industrial action ballot are indicating whether they want their union to call for industrial action. If the vote goes in favour but an undue amount of time elapses before the union calls for the action, the union's mandate to call for the action would or could no longer be valid. Where there has been such a delay, for whatever reason, it is right that the union should be required to re-ballot its members to make sure they are still content for it to call on them to take industrial action.
The noble Lord, Lord Irvine of Lairg, sought to make an amusing comparison between trade union members and my right honourable friend the Prime Minister. I understand that the Prime Minister allows for the possibility of a ballot every year, if the party so wishes. But the principle that members should have a proper ballot before their union proceeds to call on them to take industrial action has been welcomed by employers, the public and union members alike. We must not risk undermining the principal purpose of such ballots by allowing too long a period to elapse between a ballot and the union calling for industrial action.
During the debate last October, as many noble Lords have mentioned, I described the unique and 962 unusually complicated features of the legal issues raised by the prospect of industrial action among dock workers. I apologise to noble Lords for having to use those words again. Those proceedings were of course the one instance in the last five years when the 28-day limit assumed particular significance.
At that time I did not, however, mention one particular feature which may be of relevance to the question of how likely it is that a similar sequence of events could recur in the future. Following the ballot of dockers the TGWU decided—freely and of its own volition, and for reasons which are entirely its own affair and on which I would not wish to speculate—not to authorise or endorse industrial action until the result of High Court proceedings was known. In that instance the port employers had given early notice of their intention to seek an injunction.
Had the union followed a different course and authorised the action before it was subject to an injunction it would then have satisfied the requirements of Section 10(3)(c) of the 1984 Act. Even if it had subsequently withdrawn its authorisation when an injunction was awarded, the union would have been able to organise the action without the need for a further ballot once the injunction had been lifted, and presumably we should not be discussing the Bill.
§ Lord McCarthy
My Lords, if I understood the noble Lord, he said that that would be the case if the whole period did not exceed 28 days. Nevertheless, for the whole of the period during which the injunction applied the union would not have been able to proceed with the organisation of a strike. Therefore, although it would not have had to conduct another ballot it would not have had 28 days in which to organise a strike. It would have had significantly fewer.
§ Lord Strathclyde
My Lords, I suspect that the noble Lord has misunderstood what I said. So long as the union has already authorised or endorsed strike action within the 28 days there is no requirement for another ballot. That is precisely what could have happened this summer if the union had authorised that action, which for reasons best known to itself it decided not to do. A further ballot would not have been required once the injunction had been lifted after the 28-day period. I have obviously said something which is of interest to noble Lords. I give way.
§ Lord Donaldson of Lymington
My Lords, I am much obliged to the noble Lord. I have not looked at the possibility that if industrial action is started the 28-day period is no longer relevant. If that is right it is reasonably clear that the courts could achieve the entire purpose of the Bill by simply refusing to impose an injunction until a short period has elapsed in which the union could start industrial action, and then impose the injunction. That would be a most unfortunate position in which to place the judges, but they might have to do that.
§ Lord Strathclyde
My Lords, I thank the noble and learned Lord for that intervention. I suspect that what I have said needs to be considered further. However, the basic principle of what I have said remains.
The noble and learned Lord, Lord Donaldson of Lymington, and other noble Lords suggested that employers might deliberately delay bringing proceedings until well into the 28-day period in the expectation that that might force a union to reballot. It would of course be a matter of serious concern if there was reason to believe that employers would adopt such tactics with success. However, there is no reason to believe that the port employers attempted any such device last summer. Indeed, the noble and learned Lord, Lord Donaldson of Lymington, confirmed that. In any case, I very much doubt that such a manoeuvre would have worked or would work.
For any employer to be granted an injunction he must be able to convince a judge that there are sufficient doubts about the lawfulness of a union's action or proposed action.
§ Lord Campbell of Alloway
My Lords, will my noble friend the Minister give way? I am seeking to help. Those of us who are speaking are professionals. We know what we are speaking about. We have fought these cases. I beg my noble friend the Minister at all events to defer to the expertise of the noble and learned Lord the Master of the Rolls if he will not defer to a couple of silks who earn their living doing this. I ask him to have a heart; take the matter back; think again. Do not just read this wretched departmental brief. It drives us all dotty.
§ Lord Strathclyde
My Lords, if my noble friend will give me a chance, I am simply responding to the Second Reading debate at this stage and I have to make the point to the noble Lord, Lord McCarthy, about this idea of getting injunctions. Although this principle is well understood by many noble Lords, it is a stiffer test than I think the noble Lord, Lord McCarthy, recognised when he was speaking. That is purely the point I was making.
§ Lord McCarthy
My Lords, will the noble Lord not agree that all that has to be shown is a serious case to answer? It is not the same as having to prove it. It is not a trial; merely a serious case to answer. Many instances could occur and have occurred where if it goes forward to a trial it is a perfectly lawful act. That is the point I am making.
§ Lord Strathclyde
My Lords, I believe that it is a tougher test than the noble Lord seems to think. If I may turn to the problem that any formula which sought to impose a maximum limit on the extension which a court might award potentially poses, if the formula involved a court in making a decision about the circumstances in which the extension would be appropriate in terms of the effect on industrial relations or the union's rank and file, I do not believe that any court would find it easy to reach a view on the basis of such criteria. Also, if I may turn to the 964 noble and learned Lord, Lord Brightman, and his very interesting examples, which were hypothetical, in the last five years—I say again, and I know that noble Lords have said that it might happen again very soon—there has been only one case where the 28 days were relevant.
I turn again to the point that I made. There are periods within that scenario when a union could authorise or endorse a strike. The Government believe that it would be wrong to modify legislation which has worked well—which is what this Bill proposes to do—on the basis of that one instance of difficulty which arose in unique circumstances.
However, we recognise the concerns expressed in this debate about potential problems which might become apparent in the future. Accordingly, and particularly minding what the noble Lord, Lord Hayter, said, I can assure your Lordships that the Government will continue to keep this aspect of the law under close review, whatever the fate of this Bill.
§ Lord Campbell of Alloway
My Lords, I shall be very brief, but that will not mask my sincerity to all noble Lords and in particular to the noble and learned Lords who have come to speak in this debate to give your Lordships' House and the Government, if they would only accept it, the benefit of their totally objective and unbiased expertise.
I should also like to thank my noble friend the Minister for putting up the best show he could in the circumstances, and to say that, although this has been a constructive debate, it ceased to be, with respect to him, constructive when his speech came to be made. But I trust that it has remained calm and courteous, and hope springs eternal that the Government may read Hansard and defer to the expertise, certainly of the judges—forget about the silks—who really know what they are talking about. There are problems and they are very serious problems.
I am grateful to all noble Lords who have spoken. The noble Lord, Lord Irvine of Lairg, cannot ever resist the opportunity to make some wonderful political point about what the next Labour Government would do. That is a hypothetical question. For a change it was the noble Lord, Lord Rochester, who had a go at what the next Liberal Government would do. That is all very interesting. We do not have either a Liberal Government or a Labour Government and I shall not follow them along that line tonight. But with great sincerity and the utmost friendliness I thank them both for their support of this Bill. With hope, I commend this Bill to your Lordships' House.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.