Lords Sitting of 17 October 1989

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES On the Woolsack.
Prayers—Read by the Lord Bishop of Sheffield.

Capital Punishment: Referendum Plea
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
Whether they will arrange for a referendum at an early date on a proposal to restore capital punishment as a penalty for murder.
The Minister of State, Home Office (Earl Ferrers): My Lords, only Parliament can change the law and the views of Parliament on this matter have been tested from time to time. The Government do not believe it to be a suitable subject for a referendum.
Lord Boyd-Carpenter: My Lords, I share my noble friend's lack of general enthusiasm for referenda. However, is he aware that on a subject that is specifically left to the individual judgment of Members of another place and this House without any advice from their parties there is a special case for ascertaining, for the guidance of those people, what in fact is the opinion of our fellow countrymen?
Earl Ferrers: My Lords, I think that it is the duty of Members of another place to find out the opinions of their constituents on various matters. In a parliamentary democracy Members of Parliament are elected as representatives and not as delegates to reflect their constituents' views. Apart from anything else, national referenda were foreign to the United Kingdom until the Labour Party got into a muddle over its European Community policy and decided to have one.
Lord Mellish: My Lords, is the Minister aware that some Members strongly hold the view that capital punishment is wrong? Is he further aware that that is always known by local people? I was one of those inclined to such a view and although people in my constituency may well have thought that capital punishment was right, nevertheless they returned me to Parliament with majorities of over 20,000?
Earl Ferrers: My Lords, obviously the noble Lord has many qualities that were attractive to his constituents other than his views on capital punishment.
Lord St. John Fawsley: My Lords, is my noble friend aware that Mr. Disraeli said, "England does not love coalitions and it likes referenda even less". With the greatest respect to my noble friend, since it is impracticable to reintroduce capital punishment, would it not be better to abandon that distraction
776
and concentrate on means of apprehending those who commit what is a terrible crime?
Earl Ferrers: My Lords, I think I would go along with my noble friend's version of what Mr. Disraeli said. My noble friend Lord Boyd-Carpenter is perfectly entitled to put his view. It is one held by many people in this country. I agree with my noble friend Lord. St. John of Fawsley that what is most important is to catch the criminals who commit the offences, to sentence them adequately and if possible to prevent them re-offending.
Lord Mishcon: My Lords, the Minister referred to the fact that Parliament had discussed this matter many times. Would he care to remind his noble friend Lord Boyd-Carpenter that the House of Commons, after informed debate—which is not available in a referendum—four times over the past six years has produced substantial majorities against the idea of capital punishment? In those circumstances does he agree that it would be a good idea to administer capital punishment to the subject itself?
Earl Ferrers: My Lords, I do not believe that there is much point in telling my noble friend what the noble Lord, Lord Mishcon, has already told him. I should simply like to correct the noble Lord's statement, in a rare opportunity not frequently given to me, and confirm that this subject has been discussed in another place five times in the past nine years.
Viscount Mountgarret: My Lords, it is all very well for criminals to be apprehended. But what does the Minister think of the fact that they are let out after a certain time and then commit crime all over again? Is there not at least some case for considering capital punishment for certain types of murder? I should have thought that such a case must be taken on board.
Earl Ferrers: My Lords, that is always a possibility. Parliament decided accordingly in about 1957. I remember that in another place Mr. Sydney Silverman introduced the Homicide Bill which permitted capital punishment for certain offences and not for others. I recall my noble friend the late Lord Conesford saying that if you wanted to dispose of your wife, under the Bill you must not shoot her or blow her up but if you stabbed, strangled or poisoned her, or set her on fire, you would be all right. Parliament concluded that that was not the most satisfactory way of implementing the death penalty provision, and that is why we no longer have it.
Lord Allen of Abbeydale: My Lords, as I have organised a referendum, perhaps I may ask the Minister this question: leaving aside all the other objections which seem to me conclusive, does he agree that there is no point in holding a referendum unless the question posed is susceptible of being answered by a simple yes or no? Does he further agree that the number of unanswered consequential issues which would arise here means that this

777
proposal falls well short of meeting that criterion? To put it crudely, would the voter know whether he was voting for the execution of 16 year-old mental defectives, as seems to happen across the Atlantic?
Earl Ferrers: My Lords, the noble Lord is quite right. If a referendum is used—and it has been used in this country more on local issues than on national issues—it is on major constitutional matters such as devolution. The result is then incorporated in a Bill. However, a referendum can only give simple answers to simple questions. I agree with the noble Lord that capital punishment is not a simple issue.
Lord Kennet: My Lords, the noble Earl has a great sense of constitutional propriety. Will he allow to pass without comment the opinion of his noble friend Lord Boyd-Carpenter that there is a better case for holding a referendum when Members of the House of Commons are free to vote according to their consciences than when they are required to vote as they are told by their party Whips?
Earl Ferrers: My Lords, one of the drawbacks of a referendum is that it can go one way and the view of another place can go another way. If that were to happen, one would be undermining the authority of Parliament, because Parliament is the voice of the people. That is why referenda have not formed a major part of our constitutional process.
Baroness Phillips: My Lords, will the Minister confirm that if a Peer is tried by his fellow Peers he will not be executed, even with a silken cord?
Earl Ferrers: My Lords, the noble Baroness is delving into history a little. She may be quite correct in saying that he would not be hanged with a silken cord, in particular if he is not allowed to be hanged at all.
Lord Boyd-Carpenter: My Lords, is my noble friend aware, as the noble Lord, Lord Mishcon, does not appear to be, that when it came to the decisions to which he referred another place did not have the advantage of knowing what the view of the public was? Is he also aware that there is some evidence that recent events—notably bombings and the shooting of policemen—have had an appreciable effect on public opinion on this difficult issue?
Earl Ferrers: My Lords, I have a great deal of sympathy with the noble Lord, Lord Boyd-Carpenter, because he reflects a view held by a great many people. However, if one is trying to achieve any alteration in the law, it has to come about via Parliament. On a subject as complex as this, so long as Parliament decides in its wisdom not to change the law, there is not much point in having a referendum which can give misguided views and can undermine the authority of Parliament.
Lord Molloy: My Lords, will the noble Earl agree that what irritates a number of people are the different penalties for murder and the sometimes
778
remarkable release of murderers? That seems to irritate more members of the public than the argument a propos capital punishment.
Earl Ferrers: My Lords, all these issues create arguments. I can only tell the noble Lord this. When anyone goes to prison on a life sentence, a great deal of care is taken before he is let out.
Viscount St. Davids: My Lords, will the noble Earl further correct the noble Baroness, Lady Phillips? A Peer can no longer be tried by his fellow Peers, as I well know, because in 1948 I was one of the two Peers who abolished this procedure.
Earl Ferrers: My Lords, I thought that the noble Viscount was going to say that he was one of the two Peers who was tried by his fellow Peers. I am glad that that changed on the way through.

"National": Use in the UK
2.47 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Why the description "national" was used in the term "national curriculum" and the name "National Rivers Authority", neither of which applies to, or has effect in, Scotland.
The Lord Privy Seal (Lord Belstead): My Lords, the term "national" is used in the titles, of some 40 public bodies. Not all of them operate in Scotland. The national curriculum, or rivers authority, of England and Wales would perhaps be too cumbersome in a short title. Your Lordships' House had an opportunity to debate both those titles when the relevant legislation was before us.
Lord Campbell of Croy: My Lords, I thank my noble friend for his reply. I recognise the special problems in devising designations which clearly indicate the parts of the United Kingdom which are affected. Is he aware that many people in Scotland were misled into thinking that the national curriculum and therefore also the Education Reform Bill would apply to schools in Scotland and that the media have also experienced difficulties? I have with me an article from a daily United Kingdom newspaper describing the rivers authority several times as applying to the whole of Britain.
Lord Belstead: My Lords, the Government were concerned to emphasise that there would be national coverage when the new rivers authority and the new curriculum were being set up. It is true that in both cases the proposals did not apply to Scotland. I regret the misunderstanding that my noble friend indicates has existed. The problem may be that we lack a term to describe both England and Wales when we are talking about them and not about Scotland or Northern Ireland. However, it was made clear both in the drafting and presentation of the Bills concerned and when the debates were taking place that the term did not include Scotland.
Lord Cledwyn of Penrhos: My Lords, I noted very carefully what the noble Lord the Leader of the House said. But does he not agree on reflection that it would have been more appropriate to describe the curriculum as a state curriculum because it is imposed on the nations of England and Wales, but not on all schools, merely state schools, and not on independent schools?
Lord Belstead: My Lords, the noble Lord says that it was imposed. It was the subject of a Bill which received the approval of both Houses of Parliament. For each subject so far being considered in the national curriculum the Secretary of State has sought advice from non-statutory working groups and there have been two rounds of statutory consultations. There has been plenty of opportunity for many different organisations and individuals to contribute to what has come forward.
Lord Cledwyn of Penrhos: My Lords, I was not dissenting from the noble Lord. I was trying to help him.
The Earl of Lauderdale: My Lords, will my noble friend take on board that this is a constant source of irritation north of the Border? There is constant reference to Anglo-Argentine relations. Even worse, we hear about the Anglo-Irish agreement. It should either be the British-Irish or the UK-Irish agreement, and not Anglo. Is it not time that the Angles kept a bit quieter?
Lord Belstead: My Lords, I shall take on board what my noble friend has said. But for the time being I must stick to my original reply, which was that there is some difficulty in this matter in choosing a term which refers to both England and Wales. In this case it did not, it is true, apply either to Scotland or to Northern Ireland.
Lord Parry: My Lords, will the noble Lord accept that in Wales we find the term "nation" very acceptable?
Lord Belstead: My Lords, I am grateful to the noble Lord. The interests of Wales were served, I believe, in what was a contentious Bill. A distinguished former Secretary of State for Wales is chairman of the National Rivers Authority. There is an absolute undertaking that there will be a Welsh representative on the board of the National Rivers Authority. He is a distinguished professor. Statutorily written into the Bill was a provision that there had to be a special regional committee to keep an eye on the interests of Wales.
Lord Hailsham of Saint Marylebone: My Lords, did not the late General de Gaulle refer to us all and the Americans as "les Anglo-Saxons"?
Lord Belstead: My Lords, that may very well be, but I am not entirely sure that that would please my noble friend Lord Campbell of Croy.
Lord Grimond: My Lords is the noble Lord aware that his initial Answer does not carry complete
780
conviction? The fact that this mistake was made before is no reason for making it again, as we all know. There is no conceivable reason why the Bill should not refer simply to England and Wales. I know it is too long, but this is absurd especially in view of the general length of parliamentary drafting.
Lord Belstead: My Lords, I am not sure whether the noble Lord was present in the House when the matter was debated on the Water Bill and the name of the National Rivers Authority was the subject of an amendment. Despite the fact that my noble friend Lord Caithness invited noble Lords to come up with alternatives, no one did.
Baroness Carnegy of Lour: My Lords, may I remind my noble friend—
Noble Lords: Ask.
Baroness Carnegy of Lour: My Lords, may I ask my noble friend whether he remembers that when the Bill was debated I made a suggestion that the authority should be called the National Rivers Authority for England and Wales? The reply received from the Minister was that it did not matter because Scots would not very often come across the term. That is the kind of disdain for Scottish sentiment which leads to so much trouble and which feeds Scottish nationalism and all its dangers.
Lord Belstead: My Lords, with respect to my noble friend, she is being a little less than generous because that is not the answer that I gave today. I gave a rather different answer because I looked back to see what had been said.
Baroness Seear: My Lords, does the House not agree that we seem to hear rather more about the Scots than we do about the Angles?
Lord Belstead: But it is always a pleasure, my Lords.
Lord Campbell of Croy: My Lords, will my noble friend accept that the point I am raising is not one of pedantic criticism but that the public in Scotland, one-tenth of our population, sometimes misread apparently casual designations as meaning that Scotland has been overlooked?
Lord Belstead: My Lords, I take seriously what my noble friend has said. Before we leave this Question, I come back to an original point that I made. The word "national" is used fairly indiscriminately. For example, we talk in England and Wales about national parks. But that is a term which is not used in Scotland. In Scotland, there is quite rightly great pride in the National Gallery and the National Library—once again those being terms used north of the Border. United Kingdom-wide, we talk about the National Health Service. We also talk about the national debt.
Lord Campbell of Croy: My Lords, in the case of one of the places the noble Lord has mentioned, it is always called the National Gallery of Scotland.

Acid House Parties: Police Powers
2.54 p.m.
Lord Taylor of Blackburn Lord Taylor of Blackburn asked Her Majesty's Government:
What extra powers they are contemplating giving to police forces to deal with the problems created by the increase of acid house parties throughout the country.
Earl Ferrers: My Lords, the police have adequate powers to deal effectively with any criminal offence, including disorderly behaviour, which may occur at these parties, but we shall be discussing with chief officers whether any extra police powers are needed to prevent or to stop illegal parties from taking place.
We are reviewing the existing entertainment licensing and noise control laws in order to see whether the requirements and penalties need strengthening.
Lord Taylor of Blackburn: My Lords, I thank the Minister for that reply. I am sure he is aware of the nuisance and disturbance caused to residents in areas where these parties are held. While the Minister is having discussions with the Chief Constables' Association and the various local authorities, will he consider that the people who organise these parties should give adequate notice to give time for objection from residents, local authorities and anyone else who feels aggrieved about these parties being held in their districts or areas?
Earl Ferrers: My Lords, I agree with the noble Lord, Lord Taylor of Blackburn, that these parties create a great nuisance and a considerable amount of noise. There is already a requirement to give advance notice under the entertainment licensing laws, but the trouble is that people do not do that. The forces in the South-East have decided that a formal intelligence unit is needed to co-ordinate information about these parties. The important point is to know when the parties are to take place, and where. The purpose of the unit will be to give forces better warning of the likely parties in their areas and to target the main organisers.
Lord John-Mackie: My Lords, can the Minister tell us why they are called acid parties?
Earl Ferrers: My Lords, I think it is due to the kind of noise made by the music at the parties.
Lord Mishcon: My Lords, the noble Earl graciously corrected me on the Question before last, so will he accept this respectful correction? I understand that "acid" is an American term for LSD. I was so informed by a noble Lord before I came to the House this afternoon. That is the reference.
Is the noble Earl aware that there is grave public concern about the growth of these parties and that the police are most anxious to have powers in two directions: first, that instead of leaving it to local authorities they should be allowed under a criminal
782
law, not yet in existence but encouraged to be in existence by the police, to be able to say that the noise nuisance if aggravated constitutes a criminal offence? Is he' also aware that owners of disused properties such as warehouses are being paid huge sums of money for permission for youngsters to congregate to hold these parties, where there is a great danger that fire and other disasters may occur? Will he accept that on this side of the House we should be happy to co-operate if there were short, sharp and quick legislation to deal with these matters?
Earl Ferrers: My Lords, I am grateful to the noble Lord, Lord Mishcon, for his usual constructive manner. I am also appreciative of the fact that he corrected me, as he thought, over the terminology "acid" having something to do with LSD. I congratulate the noble Lord on being so up with the technological terms relating to these drugs. However, I should like to point out to the noble Lord that I too was under the impression that ac id referred to LSD. I am informed that it is not that but is the type of music that is played. There are not drugs at all acid house parties and therefore it would be wrong to consider that all such parties are drugs related. However, on occasions drugs have appeared.
Lord Parry: My Lords—
Noble Lords: Order!
Earl Ferrers: I am sorry, but the noble Lord was good enough to correct me and I wanted to correct him. I shall take his points into account. but I remind him that under Section 58 of the Control of Pollution Act there are substantial penalties for breaking noise requirements. The penalty for breaching an order can be a fine of up to £2,000.
Lord Parry: My Lords, will the noble Earl accept the fact that the House has enjoyed this acid exchange?
Lord Monson: My Lords, one fully acknowledges the nuisance caused by some parties to local residents. However, does the Minister agree that throughout history the younger generation has enjoyed shocking the older generation? Therefore, the more hysterical the older generation becomes about so-called acid house parties, the more stimulated will be the younger generation to try to attend. Is it not time that a sense of proportion was adopted towards this transient phenomenon?
Earl Ferrers: My Lords, the noble Lord has put his finger on a good point. The young people like the parties; the older people dislike the noise. Therefore, there must be a law to decide the matter. One must have licenses from local authorities and keep within various laws. If that is done and authorities are notified beforehand, everything is fine. The trouble is that people do not do so and in that respect they are breaking the law.
Lord Mishcon: My Lords, having regard to the remarks addressed to him, is the Minister aware that

783
the public is concerned not only about noise but about what was found at recent parties—namely, offensive weapons, dogs kept by security guards to attack the police and matters which are of grave concern to the police since they involve criminals as well as young people trying to enjoy themselves, to which we have no objection?
Earl Ferrers: My Lords, the noble Lord is absolutely right. Where such incidents happen they are contrary to the law and at present the police have sufficient powers to deal with them. The difficulty arises where numbers are large, and we are trying to investigate that matter. I remind the noble Lord and the House that by the end of August the Metropolitan Police had closed down approximately 130 acid house parties. Therefore, attempts were made to hold more parties than the number which actually took place.
Lord John-Mackie: My Lords, will the Minister ensure that new regulations will not affect innocent barn dances that are held all over the country? We had a barn dance a week ago and someone telephoned the police to say that an acid house party was taking place. It was an innocent barn dance and as we knew the local policeman well everything was all right. It would be a pity if new regulations had such an effect.
Earl Ferrers: My Lords, I am sure that the noble Lord will be able to continue his barn dancing for as long as he wishes. I am sorry that his presence at that recent dance should have given the impression to others that it was an acid house party. It is perfectly all right for people to enjoy themselves provided they keep within the law. The point of having the law is to take account of noise and its offensiveness to other people and of safety and hygiene. Organisers break the law when they do not take precautions to inform people and it is that to which we must address our minds.
Lord Nugent of Guildford: My Lords, does the Minister agree that we have already exceeded our normal time for Questions by seven minutes and that it is time we moved on to the next Question?
Earl Ferrers: My Lords, I am grateful to my noble friend for fishing me out of the water. However, I like to think that the length of time already spent has not been my fault.
Lord Taylor of Blackburn: My Lords, the subject is of sufficient importance to be aired in this Chamber regardless of time. I do not believe that we have greatly exceeded our allotted time. I thank the Minister for his reply and I also thank all noble Lords who have participated in the debate. None of us wants to spoil the acitivities of young people; we wish to encourage them. We merely want them to be aware of the rest of the community living in the particular area. Will the Minister try to speed up his discussions with the Association of Chief Police Officers and the local authorities?
Earl Ferrers: My Lords, the discussions are taking place as a matter of urgency because we realise the concern felt by many people about the holding of such parties.

Hinkley Point: Pre-construction Work
3.6 p.m.
Lord Hatch of Lusby Lord Hatch of Lusby asked Her Majesty's Government:
Whether pre-construction work on the Hinkley Point site has been undertaken in advance of the public inquiry inspector's report.
Viscount Ullswater: My Lords, I am informed that the Central Electricity Generating Board has not undertaken any pre-construction work on the Hinkley Point site. However, site investigations involving bore-hole drilling have been carried out, with the necessary consents and with the knowledge of the local planning authority, in order to provide information for the detailed design of the proposed power station structures and the cooling water outlet.
Lord Hatch of Lusby: My Lords, is it the case that construction work is presently in operation on the building of a new road around Coombwick Wharfe which will be used both for the building of the new Hinkley C Point reactor and for the decommissioning of the Magnox and AGR stations already in existence? If that is right, is it not degrading and debasing the value of public inquiries?
Viscount Ullswater: My Lords, the CEGB has commissioned confirmatory site investigations consisting of the sinking of bore holes to enable tests to be carried out associated with the design and hydrographic survey in the area of the cooling water intake tunnel and outfall culvert. The work was commissioned in August and is now almost complete.
Lord Stoddart of Swindon: My Lords, is the Minister aware that there is grave concern about the CEGB and its activities in relation to nuclear methods? Is he also aware that in relation to Sizewell B the CEGB spent hundreds of millions of pounds on ordering equipment before the inquiry reported? Is not something similar occurring in relation to the site investigations? Can he assure the House and the country that again the CEGB is not jumping the gun by anticipating that it will receive permission and ordering goods worth hundreds of millions of pounds of public money?
Viscount Ullswater: My Lords, I understand that the board has placed contracts for some long lead items of equipment. The CEGB has placed orders for forgings for the reactor pressure vessel in advance of Section 2 consent in order to ensure that the equipment is available on site at the appropriate time during the construction programme. The CEGB's evidence to the Hinkley inquiry identified the need for the early ordering of equipment and on day 12 the inquiry was informed of the proposed orders.
Lord Williams of Elvel: My Lords, I congratulate the noble Viscount on his first appearance at the Dispatch Box. We on this side of the House are happy that he will be in the position of answering all the questions that we shall ask about electricity privatisation as they arise. As this is his first Question and we are all great friends, could the noble Viscount tell the House how far the Hinkley inquiry is going to be extended given the news of the Sizewell B cost overruns which has caused a two-month extension? Are the further cost overruns which are possible at Sizewell, the amount of which National Power spokesmen have said they have no idea of, going to lead to further extensions of the Hinkley Point inquiry or shall we see a terminal date which the noble Viscount can perhaps give us?
Viscount Ullswater: My Lords, the inquiry was adjourned by the inspector on 27th September to enable objectors time to consider evidence presented to the inquiry by the CEGB. The inspector will reconvene the inquiry on 7th November to allow the objectors time to cross-examine the CEGB witness.
The Earl of Lauderdale: My Lords, we on this side welcome the noble Viscount's appearance at the Dispatch Box but warn him that it is very difficult terrain. However, from the bottom of our hearts we wish him the best of British luck.
Viscount Ullswater: My Lords, I thank my noble friend for his kind words and I regret that I failed to thank the noble Lord for his kind words. I do that now.
Lord Hatch of Lusby: My Lords, may I add a few more kind words and they are words of sympathy to the noble Viscount on being thrown in at the deep end on an issue which we have spent many years debating. However, I must remind him that he has not answered my first Question. Is it the case that a new road is being built around Coombwick Wharfe, because the people of Coombwick are very concerned about this matter? Is that road for the purpose of building the new reactor and for conveying the radioactive materials on the de-commissioning of the present reactors? If that is the case, would he state categorically on behalf of the Government that no decision will be taken, whether it is on Hinkley Point, Sizewell or Wylfa, until the inspector's report has been received? Otherwise the whole concept of having a public inquiry is debased.
Viscount Ullswater: My Lords, the inspector has received evidence on all terms of the building of this power station. The Secretary of State will need to consider the inspector's report very carefully but will announce his decision as soon as he can.

Business
3.13 p.m.
Viscount Davidson: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Employment Bill will be
786
adjourned at about 7.30 p.m. for about one hour and that during this adjournment the Licensing and Clubs (Amendment) (Northern Ireland) Order 1989 will be taken.

Greater Manchester (Light Rapid Transit System) (No. 3) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Midland Metro Bill
Read a third time.
Clause 25[Provisions as to use of electrical energy]:
The Chairman of Committees (Lord Aberdare)The Chairman of Committees (Lord Aberdare) moved the following amendment:
Page 13, line 12, after ("and") insert ("return").
The noble Lord said: This is a drafting amendment to make good an inadvertent omission of the word "return" before the word "circuits". This subsection gives the Secretary of State power to make regulations covering the overhead equipment and it should read:
"the return circuits of the Metro system."
The return circuit is through the running rails and is not part of the overhead equipment. I beg to move.
On Question, amendment agreed to.
On Question, Bill passed, and returned to the Commons with amendments.

Local Government and Housing Bill
Lord Reay: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order—

Clauses 1 to 14,

Schedule 1,

Clauses 15 to 34,

Schedule 2,

Clause 35,

Clauses 64 to 70,

Clauses 36 to 60,

Schedule 3,

Clauses 61 to 63,

Clauses 71 and 72,

Schedule 4,

Clauses 73 to 136,

Schedule 5,

Clauses 137 to 140,

Schedule 6,

Clauses 141 to 144,

Schedule 7,

Clauses 145 to 152,

Schedule 8,

Clauses 153 to 157,

Schedule 9,

787

Clauses 158 to 178,

Schedule 10,

Clauses 179 to 186,

Schedule 11 and 12,

Clauses 187.

—(Lord Reay.)
On Question, Motion agreed to.

Employment Bill
3.15 p.m.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Strathclyde): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee. —(Lord Strathclyde.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 12 [Trade union duties for which time off must be allowed by employer]:
The Chairman of Committees: If this amendment is agreed to, I cannot call Amendment No. 27.
Lord McCarthy Lord McCarthy moved Amendment No. 26:
Page 11, leave out lines 7 to 12 and insert —
("(i) those matters listed in paragraph 13(a) to 13(f) of the ACAS Code of Practice on time off for trade union duties and activities.").
The noble Lord said: We turn now to Clause 12. The object of the amendment is to limit the impact of the proposed clause. The Committee will remember that under the Employment Protection (Consolidation) Act trade unionists enjoy certain rights of time off with pay. Those rights are set out in Section 27(1) of the 1978 Act. Paragraph (a) states that the rights shall include' the right:
"to carry out those duties of his as such an official which are concerned with industrial relations between his employer and any associated employer and their employees; or
(b) to undergo training in aspects of industrial relations which is—(i) relevant to the carrying out of those duties; and (ii) approved by the Trades Union Congress or by the independent trade union of which he is an official".
Section 27(1) is further defined in subsection (2), which states:
"The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those" —
and this is the important part—
"that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by the Advisory, Conciliation and Arbitration Service".
The ACAS code of practice on time off came into effect in April 1978 and of course, as with other codes of practice, it provides that failure to observe such provisions of the code would not in itself render a person liable to any proceedings but they can be taken into account in determining any question arising during an industrial tribunal hearing on the issue of time off for trade union activities.
The code fleshes out both Section 27(1)(a) and (b). Paragraph 8.12 of the code deals with general considerations. Paragraph 13, which is the part of the code with which this amendment is concerned, deals with the duties concerned with industrial relations; for example, large parts of Section 27(1)(a) of the 1978 Act. The remaining paragraphs 14 to 22 are largely concerned with Section 27(1)(b); that is, more union related matters such as training and so on.
As far as I am aware and as far as the Government have suggested in another place, that position was not contested by for example, the CBI, the Engineering Employers Federation, the IPM or the BIM. I do not know, and I hope that if I am wrong the Government will tell me, of any determined attempt on the part of employers' associations or individual employers to argue that the provisions of the 1978 code of practice are too wide. I should say that they were not opposed by the then Conservative Opposition when they were introduced.
It is true that in the 1980s there were a number of cases such as Young and Carr Fasteners, Beal and Beecham Group,. and Scott and Allen where the courts appeared to be deciding that shop stewards could attend meetings of unions which were not directly concerned with their recognised representative functions.
For example, they were entitled under the code of practice to brief their members on the outcome of national negotiations. Even though they were not inolved in the national negotiations they were entitled to time off. They were entitled to time off to brief their members or to find out about certain pension schemes, even though they might not be involved in the negotiations on those schemes.
It would appear—I say it would appear because we have no direct evidence; we wonder where this comes from—that these cases are the basis for the Government's move to narrow the legal position. The Government's intentions surfaced in Burdens on Business. In 1988 Burdens on Business stated:
"greater clarity is needed in defining the range of industrial relations duties for which trade union officials have a statutory entitlement to paid time off. The present legislation can result in employers having to pay for lay union officials to take time off for activities unrelated to the terms on which the employer recognises their union, and thus causing real cost to employers".
Naturally enough, one would not expect Burdens on Business to provide any evidence of that, and naturally it does not.
It goes on to say:
"The Government intend to limit the range of duties for which time off with pay must be allowed to the scope of union recognition by the employer".
I stress those final few words:
"to the scope of union recognition by the employer".
This is important because I ask the Minister what the Government have done about this.
Burdens on Business goes on to say:
"No change is proposed in the provisions allowing trade union members time off without pay".
Therefore, the proposals in Clause 12 simply confine future time off to areas where the employer agrees in advance that there shall be time off. That is

789
basically what the clause means. The new paragraph (i) reads:
"any duties of his, as such an official, which are concerned with negotiations with the employer that are related to or connected with any matters which fall within section 29(1) of the Trade Union and Labour Relations Act 1974"—
and this is the important point—
"and in relation to which the trade union is recognised by the employer".
Recognition is important in order to obtain time off.
Paragraph (ii) states:
"any other duties of his, as such an official, which are concerned with the performance, on behalf of employees of the employer, of any functions that are related to or connected with any matters falling within that provision and that the employer has agreed may be so performed".
Therefore, it is recognition that is the joint factor. You cannot unilaterally have yourself recognised. The employer has to agree to recognise you. It is a matter for the employer as to what areas are recognised. He decides. Outside any area of recognition in negotiations he has to agree that these matters can be dealt with by the union and that therefore time off can be given.
We say that that is to break the whole principle under which time off is granted under the 1978 Act. It is not intended that time off shall be entirely in an area decided by the employer, completely and absolutely at the definition of the employer. At the moment, of course, that is not the case because the code of practice does not suggest that that should be the case. Therefore, we suggest that part of the code of practice—and only part of it—should replace the new definition which the Government propose. We want to substitute for both the present words and the proposed new words the rights set out in a particular section of the ACAS code. We simply take paragraph 13, which is only one part of the ACAS code.
I regret that I have to read out quickly to the Committee the contents of the code. It lists six areas for which there shall be time off for representatives carrying out trade union duties:

"(a) collective bargaining within the appropriate level of manning.

(b) informing constituents about negotiations or consultations with management.

(c) meetings with other lay officials or with full time union officers on matters which are concerned with industrial relations between his or her employer and any associated employers and their employees.

(d) interviews with and on behalf of constituents on grievances and discipline matters concerning them and their employer.

(e) appearing on behalf of constituents before an outside body such as an industrial tribunal.

(f) explanations to new employees who he or she will represent of the role of the union in the work place industrial relations structure".

The essential point about that list is that the areas are not dependent on recognition. They are not finally dependent on the revocation by the employer of any right to time off, which is what the present clause proposes. Therefore, they are fit subjects for an appeal to an industrial tribunal, because a tribunal can say where the shop steward wants time off for collective bargaining, whether he needs it for informing constituents, whether he needs to hold interviews or give explanations to new employees.
790
A tribunal could, in principle at least, decide objectively whether or not the shop steward has a reasonable case.
The present position if the Bill is enacted unamended is that all the tribunal can do is ask the employer whether he recognises all those purposes; and since the employer is entitled to say whether or not he recognises, if he does not recognise there is no right to time off. What was intended to be a joint operation has become a unilateral operation.
In conclusion, I want to stress that we are not bringing in the whole of the present section. We are not trying to get back to the situation in which, for example, under Section 27(1)(b) there is the right to undergo training in all aspects of industrial relations approved by the Trades Union Congress or by independent trade unions of which the person may be an official. The amendment simply proposes to list the matters in the code of practice which are concerned with industrial relations in the place of work, but they are not to be unilaterally determined by the employer. They are to be jointly determined.
Finally, what has happened to the pledge which was made by the Government to leave the matter alone, as it were, in regard to the position where a trade union representative is not paid for time off? At present, payment for time off and time off is coterminous. Now the Government intend seriously to restrict the area in which there is to be a right either for time off or payment for time off. The Government intend to restrict the area for which a representative receives payment and they said in their original consultative document that they will leave alone the area covering time off without pay. However, no special provisions have been made.
In the light of those arguments I suggest that this is a modest amendment which should find support in the Committee. I beg to move.
Lord Rochester: This amendment, as has been said, proposes that the ACAS code of practice as interpreted by various court cases which followed its publication provides a reasonable legislative framework for determining when a trade unionist should be entitled to time off. In my view it does.
Any change of principle as proposed in Clause 12 may, as I understand it, involve the renegotiation of an organisation's entire negotiating procedure agreement, not to mention the revision of the ACAS code of practice. However, surely any arrangement relating to time off should be part of and not separate from a general procedure agreement. The ACAS code stresses the wide variety of circumstances and problems facing employers and unions in this respect. In it there is a strong recommendation to the management of large and small enterprises, besides the trade unions, to take these matters into account in reaching flexible arrangements.
As the Institute of Personnel Management put it, where is the evidence that the great majority of these sensitive and complex arrangements are not working? There will always be a few borderline cases that are taken to a tribunal. But, as the noble Lord, Lord McCarthy, has said, changing the rules to rest on a management-based recognition agreement

791
which this clause proposes will surely serve only to open up new areas of potential conflict.
The stated purpose of the present statutory provisions on time off is to aid and improve the conduct of industrial relations. I do not see how the Government's new proposals can be justified within that purpose. I therefore suggest that the Committee, by accepting the amendment, should decide in effect to leave well alone.
3.30 p.m.
Lord Callaghan of Cardiff: I hope that the Government will take this amendment seriously. It seems that the proposal they have made is likely to create friction rather than to improve industrial relations. You may have a very active and able trade unionist employed in a firm or company that does not recognise a union. He may still remain a member of his trade union. As part of his responsibilities he may be called upon to represent other fellow workers in a particular area. As I understand it, to insert the offensive words that he can only act in relation to the trade union recognised by the employer, means that he is not then able to represent people who are engaged in another firm. I do not know why the noble Lord, Lord Strathclyde, should laugh at that. This situation can arise in the case of smaller trades unions where officials have to represent people across a number of concerns. That has always been the case and such a procedure has been carried on, so far as I know, without any great friction.
The situation does not arise in the case of the Amalgamated Engineering Union or the Transport and General Workers' Union. The procedure I have outlined has fulfilled a need as regards the smaller unions. I urge that the matter be looked at again. Why not accept the amendment? I believe that most people who have studied these matters agree that ACAS has done a pretty good job. I am very glad to see that that opinion has received assent. It has a series of proposals as to the circumstances in which time off shall be given. They were enumerated by my noble friend Lord McCarthy. It is a reasonable group of suggestions in which a man might have time off not necessarily to represent someone in his own firm but in another. To deny that facility means weakening the smaller trade unions to a very marked degree and introducing a niggling nuisance and irritation into trades union and employer relations. If the Minister were to withdraw the words to which I think particular objection is taken and then accept the amendment which lays down a very modest series of circumstances in which this may happen, it will show that the Government are not, as so many people believe, afflicted in all their actions by anti-trade union prejudice. I sincerely hope that the Minister will consider the matter.
Lord Boyd-Carpenter: As always, the noble Lord, Lord Callaghan, has crystallised the issue and put it forward with his habitual clarity. However, his reasoning does not lead me to the same conclusion as it appears to lead him. As I understand it, what we are concerned with here is not just time off but time off paid for by the employer; namely, time
792
which the employer is paying for in the pursuit of his business. That is what we are involved with.
Frankly, I do not agree with the noble Lord, Lord Callaghan, that an employer who does not recognise, rightly or wrongly, a particular union, should, because he is employing a man who is working for that union in respect of other companies, pay for time so spent. Surely that is the point. I am subject to correction if I am wrong. However, as I understand the clause, if work is being done on behalf of a union with the employer affecting industrial relations or negotiations in the company then it is thought proper that the time the official spends should be and could be time for which the employer is paying for his work.
I always differ from the noble Lord, Lord Callaghan, with the greatest of hesitation because he has enormous experience. If you employ someone who carries out trade union activities in respect of other companies, I do not see why the employer should pay for the time that the official spends on those duties. Therefore, I believe the clause is about right.
Lord McCarthy: I wish to draw the attention of the noble Lord to Section 27(1) of the 1978 Act which provides a duty on an employer to permit an employee who is an official of an independent union recognised by the employer. If there is no recognition in the first place, then no rights adduce at all. We are talking about what happens when there is some recognition.
Baroness Phillips: Will the noble Lord, Lord Boyd-Carpenter, accept that a director is paid very much better than a man on the line and that the former will frequently indulge in some activity relating to the British Institute of Management, the CBI or the Institute of Directors? He will be involved in quite a number of discussions and negotiations which will take place during time paid for by his employers. What is the difference?
Baroness Seear: We on these Benches have supported a considerable amount of the Government's trade union legislation, but surely enough is enough. If we are to move into a more prosperous time, as we all hope, then it is absolutely essential that we should have a responsible trades union movement working collaboratively with employers though doing their proper job of representing employee interests. Why must the Government niggle at the trades unions in this way? They have gone far enough. Can they not show a little generosity with the broader concern and purpose of developing better industrial relations in this country?
Lord Campbell of Alloway: The noble Lord, Lord McCarthy, speaks of some recognition. Recognition has been the essence of some of the most difficult and complex disputes that have troubled trades unions, employers and the courts. My contribution has nothing to do with anti-union sentiment or with niggling away at small points. Some recognition is a meaningless, confusing and—with respect to the noble Lord—hopelessly sterile phrase. Trades

793
unions are either recognised or they are not. If they are, then I go along with much that my noble friend Lord Boyd-Carpenter has said. If the trade unions are not recognised then the obverse holds true.
For the life of me I cannot see what is wrong, anti-union, niggling or unacceptable about the Government's proposal in logic, in practice or in law.
Lord Strathclyde: The noble Lord, Lord McCarthy, said that this was a very minor amendment. The noble Lord, Lord Rochester, said that what the Government were proposing in Clause 12 was a fundamental change. The noble Lord, Lord Callaghan, said that it was an attack on small unions. All noble Lords opposite have essentially missed the point of Clause 12. I agree entirely with my noble friend Lord Boyd-Carpenter. This is not an attack on the fundamental principle of paid time off for officials. The effect of all these amendments is, in one way or another, to negate the effect of Clause 12.
As the legislation currently stands an employer can be required to grant paid time off for officials to carry out duties for which the employer does not recognise the union. For example, an employer might negotiate with the trade union over pay and conditions but might have no intention of negotiating with the trade union over, say, recruitment policy. Yet a shop steward could still claim paid time off to attend meetings about recruitment policy. This cannot be right.
The clause seeks to correct this anomaly by limiting the right of officials of recognised trade unions to paid time off for trade union duties to duties concerned with negotiations with the employer about industrial relations matters for which their union is recognised or allowed by the employer to carry out functions on behalf of employees. Similarly, paid time off for trade union training must, under the proposed clause, be relevant to duties which meet the same conditions. This is clearly a necessary change.
I turn specifically to Amendment No. 26. To leave out lines 7 to 12 of page 11 and insert the passage proposed in the amendment would remove the new concept of limiting time off to duties concerned with matters in relation to which the union is recognised. It would replace it with the examples of purposes for which an official should be permitted to take time off detailed in the ACAS code. This list provided some examples of purposes for which time off should be granted under the present legislation but it was not drawn up in order to define the conditions for the right to paid time off.
The clause does not attempt to place a specific limit on what purposes fall within the ambit of the legislation. This will depend on the terms of the recognition agreement, whether the time off is for duties concerned with negotiations and, of course, the test of reasonableness. I have no doubt that in the great majority of cases employers and unions will continue to agree mutually satisfactory arrangements for time off. It would be impracticable and not
794
conducive to good industrial relations for an attempt to be made to provide in the legislation for all the occasions where time off need, or need not, be allowed. The clause ensures that employers do not have to provide paid time off for matters in relation to which the union is not recognised. Where there is a dispute about whether paid time off should be allowed on a particular occasion, the appropriate place for this to be resolved is at a tribunal. The tribunal would be able to consider issues such as whether it would be reasonable to grant paid time off.
The fact that employers comply with the current law and give time off in the circumstances it provides does not mean that the law itself is at the moment equitable. The Government have not sought in this clause to change the principle of existing legislation but just to make it more equitable. Where employers and trade unions have reached mutually satisfactory arrangements there is nothing in the clause which will force them to change. What the clause does is to enable those employers burdened by the current law to limit time off to a more reasonable level.
The noble Lord, Lord McCarthy, specifically mentioned Section 28 of the 1978 Act. I have to point out to him that Section 28, which requires employers to provide time off without pay to union members for trade union activities, is not being amended. This is not a fundamental attack on anything that trade unions have been doing over the past 10 or 11 years. The amendment simply redresses the balance. For the reasons I have given I hope that the noble Lord will withdraw the amendment.
3.45 p.m.
Lord McCarthy: The noble Lord, Lord Boyd-Carpenter, seemed to be saying that our amendment was trying to give rights to the trade union official without recognition. We are not trying to do that. We are not trying to give any rights where recognition does not exist. We are going along with the present Section 21 of the 1978 Act whereby the rights arise for an official of an independent trade union which is recognised. That is the answer to the noble Lord's point.
Secondly, he seemed to be saying that if our amendment were accepted almost anything would be possible and that almost any area of industrial relations would be one for which the trade union could ask for time off. The answer to that is that the proposal is considerably narrower than the present joint ACAS code. That code extends into all kinds of areas which we are not seeking to cover; for example, education, TUC courses, courses at the behest of individual trade unions and all those areas which are largely outside the workplace. We are insisting on paragraph 13 of the ACAS code. Paragraph 14 dealing with training of officials in aspects of industrial relations and paragraphs 15, 16, 17, 18, 19 and 20 are not being included in the new definition. We are saying that just one paragraph of the jointly agreed ACAS code should stand. That is not an extreme position.
I am not certain that I understood the drift of the argument of the noble Lord, Lord Campbell of

795
Alloway. For part of the time he seemed to be saying that the term "recognition", or the area of recognition, was an extremely simple thing. At other moments he seemed to be saying that it had been much disputed. It was disputed at one time when there were laws giving trade unions certain rights of recognition. In fact the area of recognition and the boundaries of recognition make for a complicated issue. What it comes to in the end is that if an employer likes to say that this or that is not recognised, nobody can say that the employer is wrong. One cannot have recognition unless one has a prior act by an employer. Recognition means an act on the part of the employer. That is why we do not like the details of the boundaries of time off. We do not mind recognition being a qualification for any boundaries at all, but we do not like recognition to be the definition of what those boundaries should be.
Lord Harmar-Nicholls: Does the noble Lord recognise that what he is asking for would be granted if the tribunal was satisfied that it would be right to grant it. The tribunal would be there as an arbiter to decide whether or not a claim of unfairness was substantial. Does not the noble Lord recognise that?
Lord McCarthy: I do not recognise that, and I do not believe that the history of tribunals bears that out. It would be putting the tribunal in an impossible position if one expected it to say whether it was reasonable to recognise the union for this or that purpose. In the tribunal context, the tribunal is bound to take what the employer says are the boundaries of recognition. Without an investigation into what happens day by day in the plant, no tribunal could say whether de facto this or that was recognised.
If one has the term "recognition" in an Act of Parliament and one asks a tribunal to determine it, the tribunal is bound in practice and has, in defining managerial functions in other aspects of such work, to ask the employer what the employer does. If the employer says that it does not recognise for this purpose and that time off is not needed for this purpose, there is not much that a tribunal can do. All it can do is what we are suggesting the tribunal should be allowed to do —look at paragraph 13 of the ACAS code, go through sub-paragraphs (a) to (f) and see whether those are the purposes for which the individual shop steward wants time off. That a tribunal can arbitrate; it cannot arbitrate what a word such as "recognition" means.
So far as I understood the Minister he seemed to be suggesting that the only reason he cannot accept the amendment is that it would represent a burden on business. He actually used the phrase, "burdens on business". It is no answer to tell us that Section 28 gives certain rights without pay. Those rights are given to all employees. We are not talking about all employees. We are talking about trade union officials.
I took the consultative document to suggest that, if the Government were to legislate in that area, it would leave the rights of trade union officials—of
796
shop stewards with recognised members —in exactly the same position as they were before and would only narrow the area concerning pay. But the Government have not done that and have not provided any sufficient arguments. We therefore feel inclined to press the amendment to a Division.
Lord Campbell of Alloway: Perhaps I may ask the noble Lord one question before we divide upon the amendment. Let us suppose that an employer has recognised union A. There is an internecine dispute between union A and union B and the employer is not, or may not be, disposed to recognise both unions. Must the employer give time off to both unions?
Lord McCarthy: I am pleased that the noble Lord asks me that question, although I do not understand why he has not got the point. Section 27(1)(a) of the 1978 Act states that there shall be a duty on the employer to permit an employee who is an official of an independent trade union recognised by the employer to take time off. If the employer recognises trade union B but does not recognise trade union A, he has no need whatever to give any rights to the unrecognised union.
Lord Campbell of Alloway: Then what is the object of the amendment?
Lord McCarthy: The object of the amendment is to give the tribunals and shop stewards something less subjectively determined by the employer than the single word "recognition". That is the object of the amendment.
3.51 p.m.
On Question, Whether the said amendment (No. 26) shall be agreed to?
Their Lordships divided: Contents, 83; Not-Contents, 115.

DIVISION NO. 1

CONTENTS

Amherst, E.

Foot, L.

Attlee, E.

Gallacher, L.

Aylestone, L.

Galpern, L.

Banks, L.

Gladwyn, L.

Birk, B.

Glenamara, L.

Blackstone, B.

Graham of Edmonton, L. [Teller.]

Blease, L.

Bonham-Carter, L.

Grey, E.

Boston of Faversham, L.

Hampton, L.

Bottomley, L.

Harris of Greenwich, L.

Bruce of Donington, L.

Hatch of Lusby, L.

Callaghan of Cardiff, L.

Hooson, L.

Campbell of Eskan, L.

Houghton of Sowerby, L.

Carmichael of Kelvingrove, L.

Hughes, L.

Irvine of Lairg, L.

Carter, L.

Irving of Dartford, L.

Cledwyn of Penrhos, L.

Jay, L.

Cocks of Hartcliffe, L.

Jeger, B.

Dean of Beswick, L.

John-Mackie, L.

Donaldson of Kingsbridge, L.

Kings Norton, L.

Dormand of Easington, L.

Leatherland, L.

Ennals, L.

Listowel, E.

Ewart-Biggs, B.

Llewelyn-Davies of Hastoe, B.

Ezra, L.

Falkland, V.

Lockwood, B.

Fisher of Rednal, B.

Longford, E.

797

Lovell-Davis, L.

Seear, B.

McCarthy, L.

Serota, B.

Mackie of Benshie, L.

Soper, L.

Mais, L.

Stallard, L.

Mayhew, L.

Stedman, B.

Milner of Leeds, L.

Stoddart of Swindon, L.

Nicol, B.

Strabolgi, L.

Northfield, L.

Taylor of Blackburn, L.

Oram, L.

Taylor of Mansfield, L.

Parry, L.

Tordoff, L.

Peston, L.

Turner of Camden, B.

Phillips, B.

Underhill, L.

Ponsonby of Shulbrede, L.[Teller.]

Walston, L.

Wedderburn of Charlton, L.

Robson of Kiddington, B.

Whaddon, L.

Rochester, L.

White, B.

Sainsbury, L.

Williams of Elvel, L.

Scanlon, L.

NOT-CONTENTS

Airey of Abingdon, B.

Hylton-Foster, B.

Alexander of Tunis, E.

Johnston of Rockport, L.

Allenby of Megiddo, V.

Killearn, L.

Allerton, L.

Kinloss, Ly.

Alport, L.

Kinnaird, L.

Ampthill, L.

Lauderdale, E.

Annaly, L.

Layton, L.

Arran, E.

Long, V.

Balfour, E.

Luke, L.

Barber, L.

Lyell, L.

Belhaven and Stenton, L.

Macleod of Borve, B.

Beloff, L.

Manchester, D.

Belstead, L.

Manton, L.

Bessborough, E.

Margadale, L.

Birdwood, L.

Marley, L.

Blatch, B.

Merrivale, L.

Blyth, L.

Middleton, L.

Boardman, L.

Monson, L.

Borthwick, L.

Morris, L.

Boyd-Carpenter, L.

Mottistone, L.

Brookes, L.

Mountgarret, V.

Brougham and Vaux, L.

Mowbray and Stourton, L.

Buckmaster, V.

Munster, E.

Butterworth, L.

Murton of Lindisfarne, L.

Caccia, L.

Nelson, E.

Campbell of Alloway, L.

Norfolk, D.

Campbell of Croy, L.

Norrie, L.

Carnegy of Lour, B.

Nugent of Guildford, L.

Carnock, L.

Orr-Ewing, L.

Cawley, L.

Oxfuird, V.

Clanwilliam, E.

Pender, L.

Colnbrook, L.

Peyton of Yeovil, L.

Cottesloe, L.

Porritt, L.

Craigavon, V.

Radnor, E.

Craigton, L.

Rankeillour, L.

Cullen of Ashbourne, L.

Reay, L.

Davidson, V. [Teller.]

Renton, L.

Denham, L. [Teller.]

Renwick, L.

Effingham, E.

Rugby, L.

Ellenborough, L.

St. Aldwyn, E.

Elliot of Harwood, B.

St. Davids, V.

Elliott of Morpeth, L.

Savile, L.

Fraser of Kilmorack, L.

Seebohm, L.

Gainford, L.

Shannon, E.

Gibson-Watt, L.

Sharples, B.

Gridley, L.

Shaughnessy, L.

Haig, E.

Skelmersdale, L.

Hailsham of Saint Marylebone, L.

Strathcarron, L.

Strathclyde, L.

Harmar-Nicholls, L.

Strathspey, L.

Harvington, L.

Terrington, L.

Havers, L.

Teviot, L.

Headfort, M.

Thomas of Gwydir, L.

Henley, L.

Thorneycroft, L.

Hesketh, L.

Trumpington, B.

Hives, L.

Ullswater, V.

Hood, V.

Vaux of Harrowden, L.

Hooper, B.

Windlesham, L.

Resolved in the negative, and amendment disagreed to accordingly.
4 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 27:
Page 11, line 11, leave out ("and in relation to which the trade union is recognised by the employer").
The noble Lord said: I shall speak also to Amendment No. 28, which deals with a similar matter. The purpose of the amendment is to look further into the depths of the change to the wording of Section 27(1)(a) of the 1974 Act that the Bill makes. The amendment is not as ambitious as the previous one. Its purpose may be described as an attempt to retain some core of objective meaning in Section 27.
My noble friend Lord McCarthy had to struggle hard to prevent the Committee getting into a fine old muddle about the previous amendment because—it is a problem that affects us all—the Government are suggesting an amendment to an existing section, and we are suggesting an amendment to that amendment. Part of the difficulty, I apprehend, with the previous discussion may have been that the Committee did not have the original section in front of it. That section, as I believe we finally established, relates to two things: first, the condition precedent; secondly, a right.
The condition precedent is wholly in the hands, and has been since 1980, of the employer. It is recognition of the union. Since then, there has been no legal duty to recognise the union. Once the condition is fulfilled and the union is recognised, there appears in Section 27 a right; namely, a right of the union representative who is also an employee not to break his contract of employment, and to be paid for a certain amount of time off in connection with industrial relations between the union, his employer and associated employers.
I break off there to say that we wish to know whether the omission of the words "and associated employers" in the Government's new text for Section 27(1)(a) is accidental, purposive or meant to change the section in that respect. I put that to the Minister now because it is a matter to which we may wish to return on Report.
"Associated employers" is within the definition of recognition within Section 32 of the 1974 Act. The section will be odd indeed if it is left in the form that it now is. It would be ridiculous to change the notion that any time off could deal with industrial relations matters with the employer's associated employers in a small group of companies, for example. We wonder whether the Government really have that in their minds since they have taken out those words in one place and left them in in another.
That apart, the amendments attempt to retain, not as much as the previous amendment, but some core of objective meaning in the right. Let me explain why I put it that way: if the union is recognised, in all modern industrialised labour law systems of which I am aware, some kind of union representative will have a right to conduct trade union activity and industrial relations activity with a right to paid time off from the place of work. Most systems have a far more extensive right than we do.
All the amendment asks for—it may be that the next amendment will be needed to make sense of it—is that the definition should cover that basic area of employment matters which is within Section 29 of the 1974 Act. That of course is the section which lists the permissible subjects for a trade dispute; but there is no dispute, I apprehend, with the Government on this point since they use the section to point to the list of matters which are everywhere, by employers and unions alike, regarded as a basic employment area of industrial relations.
Once the condition is satisfied—it is wholly in the employers' hands—then the right should at least apply to the core basis and, of course, any other matters upon which the parties reach agreement. I pause to say that sensible and good employers, of whom there are many, reach agreement on matters such as time off, and of course that is much the best way to deal with the matter. However, for those employers who do not, but who recognise unions and rely upon, as it were, their basic legal obligations, we say that there should be a basic legal obligation.
The amendment which the Government wish to make to the section would not leave any right or obligation. Let us take the case where the condition is satisfied: the employer says, "I recognise the union", and the shop steward says, "I want paid time off. I have not had any this year". It must be a reasonable time. There has not been much difficulty about that. In fact, I pause again to say that the complaints of some of my colleagues who are practitioners in that area of employment law is that there are so few cases on this matter before the industrial tribunals that there is not much honey or luxury to be obtained by fees in that area. There are not many cases.
If the Government's amendment is accepted, the employer may say, "Oh, I have decided that I do not recognise you on that matter". Pensions have been much discussed. The recognition would normally at least allow for some negotiations or talk about pensions. The employer may suddenly say, "No I am sorry. I do not recognise you. I have decided not to. I have decided to withdraw." That has happened. Trade unions know that the willingness of an employer to continue to talk about pensions is a delicate matter.
If that is the situation, and the employer is entitled to act as I have described, the union representative has no right; because if I have a right to time off but the employer has the right to stop me taking time off, the right is nullified. It is a liberty of action which is conditional upon the employer's agreement. The Government's text means that even when the condition precedent is satisfied there is no right.
There is no right because the second half of the section is also completely in the employer's hands. He can say, "No, I do not recognise you for that matter. I have withdrawn recognition on that matter. I do not agree. You cannot go." "You cannot go" means also that—this is where the trouble will break out, and good employers will not thank the Government for this—he cannot go on the training course which is linked, via paragraph (b) and the definition of duties in paragraph (b), to the content of paragraph (a). One again feels like making
800
photocopies of the whole section because it would save so much time. Under Section 27(1)(b) the training courses have to be relevant to the carrying out of the duties in paragraph (a). Therefore, if the paragraph (a) duties are defined as wholly in the employer's hands, minute to minute, then training courses are also equally limited. That would be a great pity.
The TUC and trade unions will take that line. I believe good employers will take that line. I do not believe that many people will thank the Government for the disputes that will break out when management gets into a macho frame of mind and causes disputes. There will be more disputes on this issue if the Government's text is accepted.
As for clarity, perhaps I may say just two more things. First, there is, as I have suggested, little difficulty here with legal interpretation. The Court of Appeal this year heard the case of Adlington v. British Bakeries (Northern) Limited. In that case, the Court of Appeal again gave its approval to the test which has become, in the case of the 1980s, the central test as to whether or not there should be time off. I shall read part of one sentence which goes to the nub of the issue. The Court of Appeal stated:
"The test is whether the time off is required to enable the official"—
This is under the present law, of course—
"to carry out his duties in relation to a matter which arises in relations between the employees and management".
There will always be the odd case or two, but that test has now settled in and in previous cases such as the Beal v. Beecham Food case it has not caused a great deal of difficulty.
As for the burden on business, the CBI, it is true, has said that it wants to confine the right, although I am not clear that the CBI has claimed that it wishes to destroy the right as the Bill would do. Even the CBI's documents—I looked at what I could find—show that in 1986 it thought that the section was potentially damaging as a burden to business. They did not actually say it had damaged any particular business. I should like to know of cases where it has caused this enormous burden. It may cause management some inconvenience. However, good management will say that good industrial relations cause a bit of inconvenience but in the end it is worth it.
The Government's text would make massive inroads, because of its character, into those situations where union representatives and shop stewards come from companies which are either members of a wide group or of an area. Those situations are perhaps covered by the bargaining with the Confederation of Shipbuilding and Engineering Unions. It is quite clear that under this text the shop stewards would encounter greater difficulty if different employers in different parts of the industry put different limitations upon their recognition in order to prevent meetings which would come within this section.
There is no anomaly in the present law. Our contention is that there would be an anomaly if the Bill were passed as it is. The anomaly is that Section 27 would become a false prospectus. It would say

801
that if the precedent conditions were satisfied then employees would have a right. But in truth it would not be a right at all. There would be no right because the employer could always determine what the result should be.
Therefore these amendments are nothing more than an effort to say to the Government, "Will you not leave a small core of objective meaning, leaving your own words in the section, but omitting the words that give the employer the ability to determine, day to day, the content of the right according to whether the trade union is recognised?" I beg to move.
Lord Strathclyde: The first of these two amendments proposes to leave out the phrase,
"and in relation to which the union is recognised by the employer",
from line 11 of page 11. This would remove the concept of recognition so that the test would be simply whether the duty was concerned with negotiations related to or connected with a matter within Section 29(1) of the 1974 Act. The likely effect is that, if the subject of the meeting for which paid time off is claimed falls within the list of industrial relations matters in Section 29(1) of the Trade Union and Labour Relations Act 1974 and other provisions of the current legislation are satisfied, the employer would be required to provide paid time off. This is unacceptable. The Government's intention in Clause 12 is to place a more reasonable limit on the circumstances under which an employer is required to grant paid time off for trade union duties than that which currently obtains. The amendment would negate this.
Amendment No. 28 proposes to leave out "and" in line 17 of page 11 and to replace it by "or". The effect of this amendment would be to require employers to provide paid time off for a trade union official of a recognised trade union to perform functions on behalf of employees which had not been agreed by the employer. This would of course negate the purpose of this part of the clause which is an integral part of the whole clause. The purpose of this part of the clause is the same as that which I have already described for the whole clause—that is, to give employers more control over the matters for which they are obliged to provide paid time off.
The noble Lord mentioned particularly the case law concerning the Adlington v. British Bakeries (Northern) Ltd. case. I want to make it clear that that case law, which emerged during the Committee stage in another place, led us to introduce amendments at Report stage in another place.
The Government's intention over the clause have not altered during the passage of the Bill. The effect of the amendments was simply to preserve a point of law which was brought into focus by the case of Adlington v. British Bakeries. While not reversing the Beal decision, the Court of Appeal in this case confirmed that there was in Section 27 of the 1978 Act a concept of nearness to negotiations. This meant that the tribunals were required to decide whether the paid time off which the union wanted was
802
sufficiently relevant to negotiations with the employer to be covered by the time off provisions. This concept could have been lost with the original wording in Clause 12, so it was amended accordingly.
Lord Wedderburn of Charlton: I apologise to the noble Lord for interrupting, but I wish to be clear, because I may have misunderstood. The Minister says that the present wording was introduced because of the Adlington decision. Did I misunderstand that?
Lord Strathclyde: The original concept could have been lost with the original wording of Clause 12. It was because of that that the orginal clause was amended by the amendments which were brought in at the Report stage in the House of Commons.
The noble Lord mentioned training. I wish to point out that there will remain a requirement on employers to provide paid time off to trade union officials for relevant training. This is because the Government accept that relevant training for trade union officials can be an aid to the conduct of good industrial relations. However, the fact remains, as it has done throughout the debate this afternoon, that if a course is not relevant to industrial relations in the workplace, there is no good reason why an employer should be required to provide time off for the official to attend.
I hope that in the light of that explanation the noble Lord will allow us to continue and will withdraw his amendment.
4.15 p.m.
Lord Campbell of Alloway: This is not as complicated as it would appear from the speech of the noble Lord, Lord Wedderburn. I agree of course that there is no right to time off unless the union is recognised. The noble Lord says, "Oh, but it is open to an employer"—he did not use those words but that was the meaning—"to pretend that the union is not recognised when in fact it is". But, with respect, is it? There are ways in which a pretence of that nature could be and can now be dealt with.
This small core of objective meaning, as I understand it, is the ethos or the spirit behind the amendment which motivates the noble Lord's thinking. It is a small core of objective meaning which is directed to a pretence which is assumed and could otherwise be dealt with. With respect, I do not see the necessity for the amendment.
Lord Wedderburn of Charlton: The Minister confirmed some of the worst fears of those who are very concerned about this change. Perhaps I may say to the noble Lord, Lord Campbell of Alloway, that I do not agree that there should be no right to time off. There should be a right to time off. As a matter of fact, it is widely held these days that employers ought to recognise trade unions and bargain with them. That view is not held, I know, by the Government because they do not believe in collective industrial relations. They believe in decollectivised industrial relations. It has been said many times by Ministers that they believe in individualised industrial relations. They do not believe in trade unions taking part in collective

803
bargaining on wages. If they did, they would defend the canons of Professor Hayek. The Prime Minister would not like that. Of course that is their line.
If we examine the legislation since 1982 at any rate—the argument of the noble Lord, Lord Prior, is a more complex matter—it is clear that it has as a major theme the decollectivisation of British industrial relations. That means putting the trade unions in a corner and hearing as little from them as possible. It means taking them off tripartite bodies, getting them out, with decentralised wage bargaining so that there is no central trade union strategy. That is a perfectly logical, coherent strategy. We just happen to think that it is evil and does a great deal of harm to ordinary working people and their interests.
There is a difference of principle between us. It is quite natural for the Government to move such a clause. We have smoked it out and seen what it is. There is no right to time off after this clause. When there is no such right under Section 27(1)(a), let us be quite clear about it, there is no right to relevant training, which is wider than what is permitted by the employer after the Bill is passed, under paragraph (a). So the employer controls time off, recognition and training. I can see from the look on the Minister's face that he is happy. This he calls a more reasonable limit on Section 27 which concerns time off. There is scarcely another system in the world that would view the matter that way and very soon we shall put it right when the roles between us are reversed. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 28 not moved.]
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 29:
Page 11, leave out line 20 and insert ("any such duties or functions as are mentioned in paragraph (a) or upon which the trade union or the employer is seeking consultation and/or representation.").
The noble Baroness said: We have already had a substantial amount of discussion on this clause, but I wish to bring to the attention of the Committee an aspect which has not been completely covered. The objective of Amendment No. 29 is to try to establish that time off will be available for other matters apart from direct collective bargaining and negotiations.
As I think has already been indicated by my two noble friends, good industrial relations consist of more than simply direct collective bargaining, although of course that is very important. In particular there is training, to which my noble friend Lord Wedderburn has just paid some attention. On the question of training there really is a case for providing a right to paid time off for a range of responsibilities in connection with industrial relations which should not be dependent simply on recognition for full collective bargaining. Union officials elected by the workforce should be equipped to respond to changes in the working environment. The Government repeatedly emphasise the importance of training yet it would appear in this clause that they do not want to provide facilities for it to be properly undertaken.
There is on record at least one case where the Employment Appeal Tribunal ruled that a shop steward who took time off to attend a training course on pension schemes should be paid for the time taken. That decision was reached even though at that time the company pension scheme was not a matter for negotiation. However, it was ruled by the Employment Appeals Tribunal that it was a matter about which employees might quite rightly seek advice from their shop steward. Therefore in that particular case, which went to appeal as I have just indicated, a decision was taken that the shop steward should have paid time off for that function.
Unless an amendment along the lines indicated in Amendment No. 29 is adopted by this Chamber, a decision by the Employment Appeals Tribunal on these lines would no longer be possible, as I understand it. That would be quite unnecessary and quite restrictive. I share the views expressed by both my noble friends. I support in particular what was said by my noble friend Lord Wedderburn—that unless this clause is amended it demonstrates completely our view that the Government are intent upon removing rights from trade unions, in particular from active trade unionists, and are intent upon preventing them from carrying out effectively a good industrial relations system and scheme at the workplace level. It is of course important to have such a scheme at the workplace level. That is what these rights are all about, and that is why they are important to us. We have put down a series of amendments to try to protect the rights to some degree. I beg to move.
Lord Boyd-Carpenter: I think, with respect, that the noble Baroness has somewhat exaggerated the effect of the clause. I am sure she is quite wrong to read into it such governmental intentions as she apparently does. As I understand it, we are simply concerned here with what purposes should permit an employee to demand paid time off from his employer. As I understand it, there is nothing to prevent an employee performing the interesting training or other functions to which the noble Baroness referred in his own time. All that is at issue here is whether his employer should be bound to pay him for that.
Baroness Turner of Camden: Does not the noble Lord agree that if an individual has to lose money in order to pursue these activities, which can lead eventually to the employer's benefit, he is less likely to want to undertake them?
Lord Boyd-Carpenter: If the activities appear likely to lead to an employer's benefit, the latter might well be prepared to pay for the time off voluntarily. But is an employer to investigate in advance whether the studies are likely to be to his benefit? Has the noble Baroness also considered that if time off is to be taken for union purposes that have nothing to do with an employer it is the union which should pay? Unions have their own funds and if a man is to stop work in order to carry out work which the union wishes him to do, on ordinary principles I should have thought it was for the union to pay the man

805
sufficient to support him. What we are really concerned with here are not the substantial issues which the noble Baroness suggested but the simple fundamental rudimentary one of who pays. I think the Government are right in saying that the employer should not have to pay for union work, save where it has a direct relationship with a union which he recognises and deals with.
Lord Scanlon: I have listened with interest throughout the afternoon and I am grateful to the noble Lord, Lord Boyd-Carpenter, for at last coming clear on the issue. All afternoon I have wondered whether the issue concerns time off or who pays for that time off. We are now told that the issue concerns who pays. Have the Members of the Committee opposite considered for one moment that we are talking not only about trade unionists in manual occupations but also about staff workers on salaries? If time off is given one cannot deny pay to an individual without breaching his contract of employment if he is on a salary. The alternative therefore is to widen still further the differentials that exist between staff and non-staff. Surely that point must be taken on board by my noble friend.
Lord Strathclyde: Amendment No. 29 proposes to leave out line 20 of page 11 and to insert the proposed passage. This would require an employer to provide time off for trade union officials to receive training in relation to matters for which the union would like to be recognised, or in respect of functions which they would like the employer to agree they should perform on behalf of his employees even though in fact there is no such agreement. It would be quite inappropriate for an employer to be required to give time off for such training. Clause 12, most appropriately, gives a right to reasonable paid time off for training in aspects of industrial relations relevant to duties which are either concerned with negotiations with the employer about industrial relations matters or are concerned with the performance of functions relating to industrial relations matters which the employer has agreed the union may perform on behalf of his employees.
Members of the Committee opposite believe that the clause will have an adverse affect on the time off trade union officials are entitled to in order to undergo relevant training. As I have said, there will remain a requirement on employers to provide paid time off to trade union officials for relevant training. This is because the Government naturally accept that relevant training for trade union officials can be an aid to the conduct of good and sound industrial relations. However, the fact remains that if a course is not relevant to those duties of an official which are defined in Clause 12, there is no good reason why an employer should be required to provide paid time off for his official to attend it.
Just before he withdrew a previous amendment, the noble Lord, Lord Wedderburn, spoke to the effect that Clause 12 was an outrageous attack on trade unionism and followed a line that the Government had started in 1982. Other Members of the Committee opposite made similar comments.
806
I think that line of argument stretches credulity. It is quite obvious that the clause continues to provide trade union officials with the right to paid time off to carry out their duties and to have relevant training. All the clause does is to make a modest and sensible adjustment which merely carries a condition, already embodied in existing legislation, through to its logical conclusion.
As I said earlier this afternoon, it is clear that all of the amendments have the same purpose, namely to frustrate the very necessary aim of Clause 12, which is to link the right to paid time off for trade union duties and training to the extent of recognition. That would ensure that an employer is not placed in the position of having to grant paid time off to trade union officials relating to matters for which the union is not recognised.
In the light of those remarks, I hope that the noble Baroness will not press her amendment.
4.30 p.m.
Baroness Turner of Camden: I find that response extremely disappointing. The TUC's view is that the clause as it stands would place severe limits on the rights to paid time off both for trade union duties and for training. The TUC points out that the clause would do so by removing the qualifying term "industrial relations" from the present legislation and replacing it with employer agreement on the extent to which the union is recognised. That is the core of our argument.
As the clause stands, the employer could give general recognition but could say "We do not recognise the union as far as pensions are concerned. Therefore, if you want to attend a seminar or training course on pensions the union can pay for you to do so but we are not going to give you paid time off". That is not a satisfactory situation.
As I understand it, particularly in the light of the EAT decision which I quoted earlier, that is not a situation that would apply under the present legislation. The government proposal would have the effect of weakening the existing provisions on paid time off for trade union duties. I believe that we are eminently justified in being critical of the Government for introducing the measures since there is no evidence that the existing provisions have placed a tremendous burden on employers. Nor are there many industrial tribunal cases on record. Plainly employers have not felt that it was an enormous burden.
This is just another example of the Government's anti-union prejudice. I say that quite categorically. However, I do not intend to press the amendment at this time. I shall take it away and think about it again before Report stage. With those remarks, I beg leave to withdraw the amendment.
Baroness Phillips: Before my noble friend withdraws the amendment I believe that it would be fair for my noble friend Lord Scanlon to have a reply to the point that he raised. It was similar to a point which I made. The Government make great play about not attacking the trade unions. The Prime Minister loves the trade unions—so long as they are

807
in Poland. However, they attack trade unions all the time, in every piece of legislation.
If they are not attacking the unions, why will they not permit people who are "on the line", who are perhaps manual workers within the union, to attend to their duties during paid time when they will allow a director to carry out duties on behalf of his professional association, which is his trade union?
Lord Strathclyde: The point is that that is an agreement between the employer and the employee. Likewise, in the case of a director, it is up to the director to decide in conjunction with his managing director whether he should have paid time off, time off without pay or whatever he wants. We are not taking that away from current legislation. There is still a right to paid time off. If the noble Baroness suggests that we should do away with that right altogether and simply allow individuals to negotiate whether they should have paid time off, fair enough. But that is not what we suggest here. Therefore, there is no natural analogy between a director and another employee.
Amendment, by leave, withdrawn.
On Question, Whether Clause 12 shall stand part of the Bill?
Lord McCarthy: The Committee will not be surprised that we cannot leave the position as it stands. We have to oppose the Motion that the clause shall stand part of the Bill.
We have tried on three different occasions, in three different ways, to amend the clause. It is clear that we have not so far managed to carry the Committee with us on the distinction, so I must explain our position once again, briefly.
In the case of the first amendment we wanted to leave the situation in which, as my noble friend Lord Wedderburn termed it, the precedent conditions depend upon a prior act of recognition alone. We want to do that with all our amendments. We have focused not on the precedent conditions or the qualifications for trade union time off but on the area of time off.
In the first instance, we asked that instead of the present definition of the scope or the Government's proposal that the precedent conditions should be exactly the same as the definition of the area, both sides of the equation should depend upon recognition alone. We said that there should be a modest list of subjects which should be very largely related to collective bargaining in the firm. They have the legitimacy that they can be found in one paragraph of the jointly agreed ACAS code.
Had the Government said that that was not a very good form of words, as one speaker who participated in the debate said, because the words were not drawn up for that purpose, that would have been perfectly correct. Those words were not drawn up for inclusion in the statute. We chose them because they have a certain legitimacy and because they derive from a collective agreement between the two sides of the ACAS council. They have stood the test of time. There has been no complaint about them that we can see or that the Government can cite, although
808
they are much narrower than the present conditions. But the Government said no.
The Government said that that would be the same as the existing agreement. I do not believe that the Minister gave an indication that he understood how far we had narrowed the scope. He also said that, anyway, the employers must be allowed to decide the boundaries of the scope of time off—not simply the preconditions but the defined area.
My noble friend Lord Wedderburn tried to take out the reference to recognition as defining area. He said, why not accept what the Government had put in the rest of the clause, the definition of a trade dispute? That would be a matter that the tribunals could determine. However, the Government said that they could not accept that, for very similar reasons. They said that the new definition would impose certain conditions on employers. The Minister found a new argument: he said that the definition that the Government proposed would allow all kinds of matters that might not be allowed by the amendment that my noble friend moved. For example, he said that training might be included. He did not and could not deny that in the government provisions it would be the employer who would determine whether training was in or out. It would be the employer who decided whether anything was in or out. That is what we object to. That is the whole thrust of our amendments. However, the Government affected not to be able to see that.
Finally, and most recently, my noble friend Lady Turner suggested once again leaving qualifications aside and moving only into the definition of boundaries and allowing those areas where a union did not have recognition but in which it sought consultation and representation. In practice that would be a modest amendment. If an employer said, "I do not recognise this area and therefore you cannot have time off", a tribunal could ask the trade union whether it was seeking recognition or consultation in that area. If the union said that it was there would be a case for the tribunal to decide. However, for very similar reasons the Government would not have that.
The only new evidence in support of the clause which the Government have trotted out today is contained in Section 28.
The Minister says that there is some justification for what the Government said at Second Reading; namely, that they are not taking away time off without pay and that in Section 28 there are certain rights of time off without pay. But neither at Second Reading nor in the consultative document did they say that they were leaving the employees' rights alone—and that is the relevance of Section 28; it is about the employees' rights and not the shop stewards' rights. They suggested that they were leaving the shop stewards' rights alone—that is my interpretation of their words at least—and that all they were touching was the pay issue; namely, the question of rights in respect of paid time off.
We see from the Bill, however, that they are restricting both paid time off and time off without pay. All that they are leaving alone is the individual employee's rights. It is true that that is specified in

809
another part of the code of practice; namely, in section 21 of that code. However, if one examines those rights it appears absolutely clear that they are not the kinds of rights which are of much use to shop stewards. They very largely concern attending meetings, participating in ballots, taking part in union elections at the place of work and going to meetings in association with other employees. They are directly related to the employees. They do not deal with representation or consultation. They do not deal with all the issues which we are trying to persuade the Government to consider and which I believe a reasonable interpretation of their statements would suggest would be left alone so long as they were not covered by paid time off.
In those circumstances we feel we must press this matter to a Division.
Lord Strathclyde: It seems almost extraordinary that, having discussed four separate amendments over the past hour and a half, Members opposite still want to continue this discussion and oppose the Question that the clause stand part. The noble Lord, Lord McCarthy, has dealt with the unions for a great deal of time and naturally I understand that he feels very strongly about this matter. However, I believe that he is stretching the point and perhaps I may go through the clause yet again to explain exactly what we are doing.
This clause represents an aspect of our policy of deregulation that we have been pursuing for some years. Specifically it is part of our policy of deregulation in the field of industrial relations, especially employment protection and individual rights legislation. The Government's intention in Clause 12 is to relieve employers from requirements to grant paid time off for trade union officials to deal with matters in relation to which the union is not recognised by an employer. On this side of the Committee we have justified that remark time and again.
As I said, Clause 12 is just a small element of the deregulation and not a major step. We have always made clear that we have no intention of dismantling the whole framework of employment protection. That policy can be seen at work in this proposed clause. The basic principle of paid time off for trade union officials remains in place but we need always to ask ourselves why it is necessary to depart from the tenet that terms and conditions of employment are matters to be determined by the employer and the employees concerned in the light of their own individual circumstances.
Having asked ourselves that question in the case of the requirement for paid time off in Section 27 of the 1987 Act, we considered that while that statutory right was appropriate some minor change was necessary. We embodied that change in Clause 12.
This is a modest, useful and sensible clause. I commend it to the Committee.
4.44 p.m.
On Question, Whether Clause 12 shall stand part of the Bill?
Their Lordships divided: Contents, 109; Not-Contents, 81.

DIVISION NO. 2

CONTENTS

Abinger, L.

Lauderdale, E.

Alexander of Tunis, E.

Layton, L.

Allenby of Megiddo, V.

Long, V.

Allerton, L.

Luke, L.

Alport, L.

Lyell, L.

Ampthill, L.

Macleod of Borve, B.

Arran, E.

Manton, L.

Balfour, E.

Margadale, L.

Barber, L.

Marshall of Leeds, L.

Belhaven and Stenton, L.

Merrivale, L.

Beloff, L.

Mersey, V.

Belstead, L.

Middleton, L.

Bessborough, E.

Monson, L.

Birdwood, L.

Moran, L.

Blatch, B.

Mottistone, L.

Boardman, L.

Mountgarret, V.

Borthwick, L.

Mowbray and Stourton, L.

Boyd-Carpenter, L.

Munster, E.

Brookes, L.

Murton of Lindisfarne, L.

Brougham and Vaux, L.

Nelson, E.

Campbell of Alloway, L.

Norfolk, D.

Campbell of Croy, L.

Norrie, L.

Carnegy of Lour, B.

Northbourne, L.

Carnock, L.

Nugent of Guildford, L.

Cawley, L.

Orkney, E.

Clanwilliam, E.

Orr-Ewing, L.

Coleraine, L.

Oxfuird, V.

Colnbrook, L.

Pender, L.

Cottesloe, L.

Pennock, L.

Cox, B.

Peyton of Yeovil, L.

Craigavon, V.

Platt of Writtle, B.

Cullen of Ashbourne, L.

Porritt, L.

Davidson, V. [Teller.]

Radnor, E.

Denham, L. [Teller.]

Rankeillour, L.

Ellenborough, L.

Reay, L.

Elliot of Harwood, B.

Renwick, L.

Elliott of Morpeth, L.

St. Davids, V.

Ferrers, E.

Savile, L.

Gibson-Watt, L.

Seebohm, L.

Gridley, L.

Sharples, B.

Haig, E.

Skelmersdalc, L.

Hailsham of Saint Marylebone, L.

Strathcarron, L.

Strathclyde, L.

Harmar-Nicholls, L.

Strathspey, L.

Harris of High Cross, L.

Swansea, L.

Havers, L.

Teviot, L.

Henley, L.

Thomas of Gwydir, L.

Hesketh, L.

Trumpington, B.

Hives, L.

Ullswater, V.

Hood, V.

Vaux of Harrowden, L.

Hooper, B.

Westbury, L.

Johnston of Rockport, L.

Whitelaw, V.

Kimball, L.

Windlesham, L.

Kinnaird, L.

Wise, L.

Knollys, V.

Young, B.

NOT-CONTENTS

Airedale, L.

Callaghan of Cardiff, L.

Amherst, E.

Campbell of Eskan, L.

Ardwick, L.

Carmichael of Kelvingrove, L.

Attlee, E.

Aylestone, L.

Carter, L.

Birk, B.

Cledwyn of Penrhos, L.

Blackstone, B.

David, B.

Blease, L.

Dean of Beswick, L.

Bonham-Carter, L.

Donaldson of Kingsbridge, L.

Bottomley, L.

Dormand of Easington, L.

Bruce of Donington, L.

Ennals, L.

Buckmaster, V.

Ewart-Biggs, B.

811

Falkland, V.

Mayhew, L.

Fisher of Rednal, B.

Milner of Leeds, L.

Foot, L.

Mulley, L.

Gallacher, L.

Murray of Epping Forest, L.

Galpern, L.

Nicol, B.

Gladwyn, L.

Northfield, L.

Glenamara, L.

Parry, L.

Graham of Edmonton, L. [Teller.]

Peston, L.

Phillips, B.

Grey, E.

Ponsonby of Shulbrede, L. [Teller.]

Hampton, L.

Harris of Greenwich, L.

Robson of Kiddington, B.

Hatch of Lusby, L.

Rochester, L.

Houghton of Sowerby, L.

Sainsbury, L.

Hughes, L.

Scanlon, L.

Hylton-Foster, B.

Seear, B.

Irvine of Lairg, L.

Sefton of Garston, L.

Irving of Dartford, L.

Stallard, L.

Jay, L.

Stedman, B.

Jeger, B.

Stoddart of Swindon, L.

John-Mackie, L.

Strabolgi, L.

Leatherland, L.

Taylor of Blackburn, L.

Listowel, E.

Taylor of Mansfield, L.

Llewelyn-Davies of Hastoe, B.

Tordoff, L.

Turner of Camden, B.

Lockwood, B.

Underhill, L

Longford, E.

Walston, L.

Lovell-Davis, L.

Wedderburn of Charlton, L.

McCarthy, L.

White, B.

Mackie of Benshie, L.

Williams of Elvel, L.

Mais, L.

Resolved in the affirmative, and Clause 12 agreed to accordingly.
4.52 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 30:
After Clause 12, insert the following new clause:
("Assistance for proceedings by employers.
There shall be added to section 20(7) of the Employment Act 1988—
"(f) a complaint to a tribunal under sections 24 and 27 of the 1978 Act, or a complaint under section 67 of that Act where the ground, or principal ground, relied upon is a ground falling within section 58." ").
The noble Lord said: We thought it proper to put down this amendment to a Bill relating to employment. It is what I called yesterday a fairness amendment. It is a matter on which we believe that there is quite widespread feeling that the Government have got it wrong and have gone over the top.
I repeat what I said yesterday. The amendments in this category do not seek to set out the law as we would wish it but to centre on a matter of practical importance. It concerns a new institution, the need for which we say has never been made out; namely, the office of Commissioner for the Rights of Trade Union Members. The name is a bit of a mouthful. It is an office which in conferences on trade union law is being referred to as the CROTUM. The CROTUM was established in the Act of 1988 with the sole task of assisting members of trade unions to sue their unions in the High Court. That is the function of the office. A member can have legal advice and representation paid for.
The first report of this office has just been published. It covers only four months. I believe that the Government have made£2 million available for the budget of the office over the year. The Minister will correct me if that is wrong. However, if it is right, it is a sizeable percentage of the nearly£4
812
million available for the entire work of the Equal Opportunities Commission, and of the even larger sum that is available to the Commission for Racial Equality. These bodies disclose their budgets in their reports. It appears that this budget is to be put to the Commons in a separate paper.
It is also interesting to observe that the CROTUM may be hard pressed to spend all this money since the report discloses that in the first four months of business there have been only 10 applications for help, six of which were outside the terms of reference, and only two of which are being supported in proceedings at the outset. At this rate the clients of the commission will plainly be able to afford the luxury of funds to engage the most fashionable Queen's Counsel to represent them in court; or, if the Master of the Rolls does not use his veto, perhaps soon the most expensive solicitor.
Although we doubt the need for any office of this kind, we accept its existence. We still believe it to be a slur upon trade unions. Indeed, the commissioner has commented in her first report:
"If union members do not feel the need to come to me for assistance it may simply indicate that unions are respecting their members' rights".
That was from a report in the Employment Gazette.
The point of the amendment is this. The office exists. If all this money is to be spent on the defence of workers' rights in their capacity as trade unionists, should it not be spent a little more fairly? Our amendment is entirely concerned with trade union rights: the right to be a member of a union; the right to engage at work in the activities of an independent trade union; and the right to time off work for a representative of a trade union. Because of the form of the legislation that we are citing, it also covers the rights of non-unionists which are defended in the same sections of the 1978 Act. The matters concerned are discipline and dismissal on union-related grounds.
The addition that the amendment makes to the existing law is essentially this. While the 1988 Act afforded financial assistance through the CROTUM to union members to protect their rights against their own union, this amendment would give them parallel assistance by the same machinery to protect their trade union rights against dismissal or unlawful discipline exercised by their employer. We say that it is an unfair use of public money to protect trade union members in the one direction against alleged abuses by unions, and not to allow for protection in the other direction—against the alleged abuses of the employee members by the employers.
Indeed, the need in the second dimension is demonstrably greater. Whereas, in the first four months of the office, applications to the CROTUM numbered 10—even the total inquiries on the telephone numbered only 37—it appears that every four months in 1987–88 some 300 complaints related to union membership, dismissal or unlawful discipline were made to industrial tribunals. Such applicants have to bear the costs of the case. They have no legal aid, under the normal legal aid system, in the industrial tribunals in cases against the employer. Legal aid, together with assistance from

813
the CROTUM, is available in the parallel situation of High Court cases brought against unions by members, but the applicant in the tribunal defending his trade union activity rights against the employer has no help except from his union.
Lord Harmar-Nicholls; Hear, hear.
Lord Wedderburn of Charlton: The noble Lord says "hear hear", but perhaps he would also note that the sections cover non-unionists. This is not changing the dimensions of the legislation. He may throw the union members to the wolves and say, "Their unions can always support them". This does happen, but not always. However, he is then left with the non-unionists suffering what in our view is an injustice.
Out of 25,000 complaints of unfair dismissal in 1987–88—some of which certainly contained elements of trade union rights infringement other than those I have cited—only 2,400 were successful. Of the successful applicants, 54 per cent. appear to have been unrepresented. The precise details are very hard to ascertain on published statistics, but I believe that I have put a fair picture to the Committee. From that picture, how can one possibly justify the spending of the public money of this office in defence of trade union rights, in the broadest sense, against a union (where the complaint is against a union) but not making those funds available in cases where there is no legal aid and where a member or non-member who alleges a complaint may or may not receive assistance from a union or some other source?
Lord Harmar-Nicholls: Perhaps I may ask a question. I am rather confused. Surely a member pays his trade union contribution in order to get help from his trade union in circumstances such as that. If the trade union does not undertake that obligation, having received the prescription, that means that it does not think that there is a case to fight. Is that not the real situation?
Lord Wedderburn of Charlton: There are three types of situation and the noble Lord has rightly cited one of them. The one he cites may not be particularly relevant to my case; namely, a trade union member who complains about a breach of Section 23 or Section 27, if he is an official, and whose union takes up his case. I agree that that may well be so.
I say that there are two other types of case and they will certainly come to more than 10 examples in four months. The two other types of case are those who allege infringement by the employer of one or other of the rights in this congeries of sections, either in respect of trade union activity or in respect of their status as a non-unionist. No aid is given to them. Trade unions, indeed other bodies, sometimes decide not to support complaints. Where no legal aid is available not then to give any public money seems to me unfair when it is being given to the parallel case on the other side when legal aid is
814
available in the High Court. That is all it is. It would not perhaps cause a great deal of extra expenditure. As I said it is a limited amendment.
Our fairness amendments are limited and the noble Lord must not suspect them of having any ulterior purpose. They are straightforward. The provision would not apply to most trade union members, but it would apply to the trade union member who does not have the support of his union. When he does not get that support he is left on his own. He does not have legal aid and he does not have the CROTUM. Why not? It applies to the non-unionists who complain under these sections and they do not have the CROTUM against the employer. Why not? When a member complains against the union he does, even if he is very rich. Some unions have very rich members—not the Association of University Teachers, I hasten to add—but he may have great assets somewhere else or help from a friend—from the noble Lord, in some cases perhaps, not committing champerty, I am sure.
There is an injustice here and it is the kind of thing that the Government fall into. We think they fall into it quite honestly but with ideological blinkers. They are always giving aid against unions to people and we are saying that here is a case which concerns just a few people. We care about the individual and the test for the Government is whether they care about these few individuals who should be helped by the CROTUM. I beg to move.
5 p.m.
Lord Strathclyde: In moving this new clause the noble Lord, Lord Wedderburn, has returned to a matter which was considered by this House during the passage of what became the Employment Act 1988 when a rather similar amendment was moved at that Bill's Report stage.
The Commissioner for the Rights of Trade Union Members was established under the 1988 Act so that union members need not be at a material disadvantage in taking certain proceedings against their union, its officials or trustees. The relevant proceedings are set out in Section 20(7) of the 1988 Act.
The proceedings listed in Section 20(7) of the 1988 Act all 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 could take the form of monetary compensation such as a tribunal can award where unfair dismissal or denial of statutory rights to time off has taken place. They include matters such as a union's failure to hold a proper ballot before calling on members to take or continue with industrial action, to hold proper election ballots for certain positions in the union, or to accord members their rights to inspect their union's accounting records. None of these issues involves proceedings against an employer.
The proceedings which the new clause seeks to add are quite different. They would all be heard, at first instance, by an industrial tribunal, and relate to complaints that an employer has unfairly dismissed, or otherwise discriminated against one of

815
his employees, including where this has been done on grounds relating to union membership.
The purpose of the commissioner is to provide, on application, material assistance without which union members might be unable or unwilling to take certain proceedings which may be necessary to prevent abuse of union power against union members. Her assistance can redress the disadvantage union members might otherwise face in bringing High Court proceedings when faced with the superior resources and facilities available to their union. The case for establishing the commissioner was set out in these terms in the 1987 Green Paper Trade Unions and their Members.
The present provisions of the Employment Act 1988 are appropriate to this role. The Government have made no proposals, and have no plans, to extend the commissioner's assistance to any proceedings that would be heard, at first instance, by an industrial tribunal.
The industrial tribunal system, which is available to union members, and others, complaining about employers' actions in breach of the sections of the 1987 Act cited in the new clause is much less formal, and less expensive, than the High Court.
In addition, an individual contemplating a complaint to an industrial tribunal might be able to draw on assistance from various sources, such as the legal aid "green form" scheme to help prepare his case and, if the person is a union member, such help as his union might be prepared to offer.
For all those reasons there is simply no need to extend the commissioner's assistance, which involves help towards the much more substantial cost of getting legal advice and representations for certain High Court proceedings, as the new clause proposes.
It has been argued that since the commissioner has been involved in few proceedings to date, that in some way justifies extending the scope of her assistance as proposed in the new clause.
The commissioner's office is small, and its running costs are minimal—around£0.3 million a year for staff, premises and similar expenditure. Even though her office opened for business only in December 1988, however, there has been a steady, and increasing, stream of inquiries, as the commissioner herself pointed out when publishing her report on her work during the last four months of the 1988–89 financial year.
If the mere existence of the commissioner helps to ensure that unions do not deny their members' rights, without any assisted proceedings coming to court, the Government would be well pleased. I hope that the noble Lord will withdraw his amendment.
Lord Wedderburn of Charlton: The amendment has done one thing and that is to establish the Government's attitude. With great respect to the Minister, I thank him for his reply but just to tell me that this would extend actions against an employer as an objection, of course, is right. That is what it is for. To say that the parties would come together in an industrial tribunal and not in the High Court is,
816
with respect, a mere formality not worthy of debate. However, to say that the existing jurisdiction of the CROTUM cannot give rise to direct actions for compensation by the applicant is something that I accept. That is correct, and under the amendment it would extend to compensation actions in the industrial tribunals.
However, I must point out to the Minister that although that valid point has been made, it does not carry the Government very far, and I say that for the following reason. If they look at the types of action that will be brought in the High Court with support from the CROTUM and especially at an action which concerns a breach of the rules to recover union property contrary to the 1988 Act, that could equally found an action in some circumstances where compensation by way of damages might be a remedy available to a member within the compass of his written statement of claim in the High Court. Even within the present compass of the commissioner there is the possibility under a number of headings of an action in the High Court extending into a similar area.
The idea that we should not discuss it because it was discussed in 1988 reminded me of the advice in the famous book of Professor Cornford entitled Microcosmographica Academica. I cannot quote it but it goes roughly like this: "Thinking of not looking at it now for fear of what we might do, you should never cure a small injustice today for fear that you will take an even more just step tomorrow." The Minister appears to think that having got it wrong in 1988, if we went a little further today we might open up a most terrible justice. That may be right.
I shall naturally withdraw the amendment, but in doing so I wish to say that we shall keep an eye upon this matter. We hope that the Minister will say to his right honourable friend that the full report and the full budget of this office will be given the usual publicity. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 [Period of employment necessary to qualify for statement of reasons for dismissal]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 31:
Page 11, line 25, leave out ("two years") and insert ("nine months").
The noble Baroness said: Clause 31 extends from six months to two years the qualifying period of service needed for entitlement to a written statement of reasons for dismissal. Frankly, I do not understand the reasons for this. Ideally all employees should receive a written statement of the reasons for their dismissal. I understand that the proposal in the clause was originally put forward by the Government in the 1986 White Paper: Building Businesses not Barriers.
I expect that the Government will argue that the clause is being introduced because they wish to remove barriers and burdens on business. But I do not accept that providing a written statement of reasons for dismissal is a burden on business. Surely it is good management practice to do so. That

817
certainly is the view of the British Institute of Management and I understand that it opposes the clause.
Nor do I accept the argument also advanced by the Government that the qualifying period for a written statement should be the same as that for claims of unfair dismissal. That statement was made on Second Reading. In my view, that link is irrelevant. Individuals should have the right to know why their employment is being terminated. A written statement is valuable whether or not the individual is eligible to make a claim for unfair dismissal. There is a possibility that the real reason for dismissal could be sex or race discrimination or trade union activities for which no qualifying period is needed. However, without a written statement giving the employer's reason for dismissal the individual will be in a weak position to pursue a claim.
Not only the TUC and the British Institute of Management oppose the clause; the Law Society also does so. In its briefing on the Bill the Law Society states:
"It is our view that logically all dismissed employees should be entitled to a written statement of the reasons for dismissal".
However, in order to meet the Government part of the way I have tabled an amendment reducing to nine months the two-year period that they propose. From our standpoint that would be an improvement in the position. Two years appears to be an impossible time during which an employee would be without such an important right. For those reasons, I beg to move the amendment.
Lord Rochester: As the noble Baroness has explained to the Committee, the qualifying period for the right referred to in the clause has, by the Government's measure, become the same as that applying to complaints of unfair dismissal. The Government treat the matter merely as a technical change. However, it is not good enough to regard it as a tidying up exercise, particularly when one remembers that this Government raised the qualifying period for unfair dismissal to two years. In my view, this is another example, as was last year's Employment Act, of the way in which a Bill works to the advantage of the employer and to the disadvantage of the employee.
The provision is opposed by a number of reputable organisations. The Department of Employment Research Paper No. 53 of 1985, dealing with unfair dismissal and employment practice in the 1980s found:
"very little sign that employment protection legislation was inhibiting industrial recovery or contributing to the high level of unemployment by discouraging employers from taking on new people".
In the following year another survey concluded that the main barrier to employment was lack of finance and high interest rates. I suggest that instead of restricting the rights of employees still further, as in the clause, the Government will be better advised to concentrate their attention on those vital problems because today they are more crucial than ever to our competitiveness.
818
Finally, I submit that current legislation concerning the need for written statements giving the reason for dismissal is not onerous for employers. It may be helpful to employees in enabling them to explain their situation to prospective employers. In my view, the qualifying period for entitlement to statements as to the reasons for dismissal should be left as it stands. But at least let the Government accept the proposal that it should be extended from six months rather than to two years.
5.15 p.m.
Viscount Mountgarret: I do not support the amendment, although the suggestion for extending the period to nine months is most reasoned. The proposal does not appear to achieve the result which my noble friend and his colleagues desire. There are many areas in which employees are engaged on work which cannot manifest itself in a comparatively short space of time.
One must be fair also to employers. I recognise that there is a belief that there are no bad employees but only bad employers, but that is not generally true. Employers must be given a chance to ensure that the person whom they are employing is capable of and good at the job. For example, I know that in respect of a farm worker or gardener found in my walk of life it is difficult to assess within six months or nine months whether he is competent at the job. The efforts of that person can be seen only after a comparatively long time and it is only fair to the employer that he should be able to adjudge the situation.
Although I understand the reason, I hate the fact that one must give written warning to an employee. Once words have been spoken or written one cannot retract from the statement. If one warns an employee of bad work one has spoilt a certain relationship. It is not nice to feel that one must do that within a short space of time in order to remain within the law. An extension of the period to two years assists both sides in trying to assure, first, that the employee is competent at his job and, secondly, that the employer is satisfied. I do not agree with the amendment.
Baroness Gardner of Parkes: I understood the change in terms of bringing the period of time into line with that in respect of the industrial tribunal procedure. Under that procedure you cannot bring a case until you have been in employment for two years. Any written statement about why you were dismissed prior to that may be of benefit to you. However, it causes a great deal of work and has no effect on the tribunal because you are not eligible to bring a case if you have been in employment for only nine months.
Lord Strathclyde: My noble friend Lady Gardner of Parkes is right. I am pleased that the noble Baroness and the noble Lords opposite are prepared to go some way towards meeting our objectives by proposing a qualifying period of nine months instead of the current six months. However, the Government cannot support their amendment because it fails to address the primary purpose of the clause. It is to

819
align the qualifying period for the right to a written statement of reasons for dismissal with that for the right to complain of unfair dismissal to an industrial tribunal.
The purpose of the written statement provision is to help someone to decide whether or not he has a case for making such a complaint. It makes no sense for a person to have the right—
Lord Wedderburn of Charlton: No.
Lord Strathclyde: Perhaps the noble Lord would like to tell me what else it is for.
Lord Wedderburn of Charlton: The noble Lord invites me to interrupt him, so I shall do so with pleasure.When dealing with other amendments we shall make the position clear. The employee needs to know the reasons for his dismissal—that is quite apart from unfair dismissal—in order to obtain another job, vindicate his character, meet any charges and obtain social security benefit. We shall come to that matter later. Perhaps the noble Lord does not know about that. If he does not, I suggest that he informs himself. Is it not utterly preposterous for the noble Lord to say that the only occasion on which one needs to have the reasons for one's dismissal is when one is going to an industrial tribunal? That does not recognise life at all. Only 27,000 people go to the tribunal. Far more are dismissed and they want to know why. Is that unreasonable?
Lord Strathclyde: I knew it was a mistake to give way to the noble Lord, Lord Wedderburn. I shall come to those points in the course of the next few amendments. I am sure he is well aware of that.
With regard to existing employees I assure the Committee that although the implementation details have yet to be finalised, the Government have no desire to remove any protection which is already enjoyed. I believe that the noble Lord, Lord Rochester, mentioned the Law Society.
Lord Rochester: I did not, but I am happy to agree with the findings of the Law Society on this matter.
Lord Strathclyde: It has been suggested by the Law Society that without a statement of the reasons for dismissal some employees will find it harder to obtain another job. That was echoed by the noble Lord, Lord Wedderburn. Let me underline that we are changing the statutory requirements in relation to written statements. There is nothing to stop an employer giving such a statement to someone he dismisses despite the fact that there is no statutory entitlement.
Baroness Seear: The noble Lord can never have been inside a works. A foreman may become fed up. He has words with an employee and says, "You are out". If he has to put in writing why he is dismissing the man he will think before he says, "Get your cards and go". That is real life. I fear that the noble Lord has never been near real life.
Lord Strathclyde: I disagree with that statement entirely. As I said to the noble Lord, Lord Wedderburn, we shall continue to examine exactly what is meant by the written statement and what it is used for. Noble Lords opposite will contend that it is used for a whole range of things and I maintain that it is not.
Let us take the example of a reference which a former employer may be asked to supply to a prospective employer. Nobody will accept a dismissal notice as a reference. If an employer is to employ somebody, he will ask the former employer for a reference. After all, not every individual has a written statement of the reasons for his dismissal. The employer only has to give that if requested to do so by the dismissed employee.
I believe that I should refute that the lack of written reasons will affect claims for unemployment benefit. A person's entitlement to benefit can be affected by the reasons for his leaving his job. For example, if he left voluntarily or was dismissed for gross misconduct his benefit could be suspended for a certain period. Benefit offices are responsible for seeking from the claimant's former employer an explanation as to why the claimant left so that a decision can be taken on benefit entitlement. Those inquiries are carried out directly with the employer. There is no link whatever with the written statement provisions which we are now discussing. I assure Members of the Committee that the changes which we are making in employment protection legislation will not have any effect on the benefit entitlement of a recently dismissed employee.
I emphasise that there is no desire here to make it more difficult for a dismissed employee to obtain unemployment benefit. The dismissal note had no bearing on that fact before, has no bearing now and will have no bearing in the future when this becomes law. In the light of that, I hope that the noble Baroness will withdraw the amendment.
Baroness Seear: The noble Lord did not answer my point that this matter is of considerable importance in the internal operations of disciplinary and dismissal systems. This is a controlled exercise; namely, that an employer has to put in writing the reasons for dismissal. Now there will be no protection until two years have elapsed against arbitrary dismissal. As happens again and again, a foreman becomes fed up and tells someone that he must go. If he has to put that in writing he hesitates before doing so for no good reason. The noble Lord has not answered that point.
Lord Strathclyde: I do not follow that thinking. I do not see why that should be. Currently the written notice has no legal enforcement whatever. So why does it make any difference?
Baroness Seear: The noble Lord has been brought up in a totally legalistic system of industrial relations. However, he must understand that a great deal goes on inside industry which has not much to do with legal enforcement. However, these are valuable controls over the way in which people behave and for ensuring just dealings between people in positions of

821
responsibility and their subordinates. That is the point I am trying to make; I cannot make it more clearly.
Viscount Mountgarret: I wonder if my noble friend is really getting the point across. I do not wish to be impertinent in suggesting that he does not know his business, but this matter is rather confusing. There may be a feeling that an employee is dismissed and is then given written reasons as to why he is dimissed. That is not so. I hope that I shall be corrected if I am wrong. I believe that the current situation is, and will be, that before an employee is dismissed, he must receive not one but two written notices of why he is dismissed. Is the noble Baroness correcting me?
Baroness Seear: The point is that now a person has no access to a tribunal until two years have elapsed after starting the employment. His legal rights do not commence until that time. And that is what we are concerned about.
Viscount Mountgarret: I take the point of the noble Baroness. However, under present legislation there is no requirement upon an employer to give written notice of complaint or intention to dismiss up to six months. As I understand it the Government wish to extend that requirement to two years. The point I make is that it is desirable to extend it to two years because in many areas of employment it is difficult to ascertain whether or not an employee is actually proving his worth. As I said when I intervened, I find it rather sad that when an employer has to try to mark his card, he must put it in writing to an employee why he is dissatisfied. If you put it in writing or speak verbally you cannot undo it. You sow the seeds of mistrust. I prefer to have an opportunity of being given rather longer for a bedding-in period to ensure justice from the employee's and the employer's points of view. That is why I do not agree with the amendment.
Lord Wedderburn of Charlton: Perhaps the noble Viscount will accept that the situation which he describes is not one to which those supporting the amendment are insensitive. There is a problem in many employments as to the probationary period. There is a problem as to the probationary period within which a person shows more than reasonable proof that he is competent to do the job or that he is someone to be relied upon. I believe that that period will differ in many different employments.
Accepting that there is such a difficulty which the employer has to look to, a reason for the worker's dismissal in that period will exist. It may be a forecast that he will not be any good or that he has been found to be dishonest. It may simply be that the works can no longer afford a certain number of workers and he is redundant. Whatever the reason, is it not right that he should be given it straight? I appreciate and understand that both the employer and the employee may be embarrassed. But to tell someone that he no longer has a job without giving proper notice is unreasonable. That is what this is about. It is not about gumming up the probationary period. It is concerned with whether or not the
822
person who has lost his job should be given the honest reason—and it may be a perfectly good reason. Does that not meet half way the arguments of the noble Viscount?
5.30 p.m.
Lord Strathclyde: We are perhaps getting away from the essence of this discussion. The noble Baroness, Lady Seear, chastised me for not knowing enough about how industry works and how people are sacked. What we are talking about is a right that was introduced by the Labour Government in 1975. It is a right that had a fundamental link between the right to go to an industrial tribunal and the provision of written reasons for dismissal so that the employee could decide whether or not there was a case. That was all. There was no suggestion that perhaps the manager would have some thinking time if he had to write a letter. It was purely so that the employee could make the decision. That is all that we are talking about now.
The qualifying period to go to an industrial tribunal is two years. Surely it must make sense that the qualifying period to obtain a written statement must also be two years. That is all that is at stake.
Baroness Gardner of Parkes: We have drifted around on this subject. My noble friend Lord Mountgarret has perhaps tended to confuse the issue of the written warning that has to be given up to the two-year period. As I understand it, the amendment addresses itself purely to this: after you are dismissed—and you can be dismissed at any time up to two years without prior notice—it is then a question of when you are entitled to receive a written reason as to why you are dismissed.
I believe that the period of nine months is not enough but I am not sure whether two years is not too long. It is just a matter of Civil Service neatness to try to have two years in order to match the time within which one can take a dismissal to a tribunal. It might be advisable for the Government to consider a shorter period. We have also tended to overlook the point that someone who is dismissed can ask for the reason, whether or not it is in writing. I am amazed at how often, in industrial tribunals, when people are asked why they have been dismissed—these are people who are entitled to have the reason given in writing—they reply that they did not ask. Many people do not ask but just say, "That was it, and I went".
The noble Baroness, Lady Seear, made a valid point. People in this country, and perhaps throughout the world, do not like to commit themselves in writing to anything that is not soundly based. Perhaps such a requirement would prevent an employee being dismissed in, say, a moment of bad temper. However, I do not support the amendment. Nine months is too short but I do not see why the period has to be fixed at two years just for the sake of neatness.
Baroness Turner of Camden: I am disappointed with the Government's response to this amendment. As the Minister said, we have attempted to go some part of the way towards meeting a case made by the

823
Government with which we fundamentally do not agree. That is why we tabled an amendment reducing the period from two years to nine months; though we share the view of the Law Society and others that there appears to be no reason at all why individual employees should not have the right to know, in writing, why they are being dismissed irrespective of length of service.
I fail to see the link between the enabling period to go to an industrial tribunal and the question of providing reasons for dismissal. It is true that the two periods were the same in 1975 when the Labour Government first introduced this legislation, but there seems no real reason for maintaining that link because, as my noble friend Lord Wedderburn has already explained to the Committee, there are numerous reasons why an employee ought to be told why he is being dismissed quite apart from the possibility that he may feel he has a case for unfair dismissal to take to a tribunal.
There is the employee's feeling of self-respect, justification, and knowledge that he may not have performed effectively. He may need this knowledge if he is to pursue other jobs on the labour market, not just as a reference but for his own satisfaction in order better to pursue his career. As we said earlier, this is an employee's right. There seems no reason why it should not be a statutory right.
If, as the Minister said, the clerk concerned with social security receives from the employer the reasons why the employee has been dismissed, why should that employee not also receive those reasons. There is no logic in saying that those written reasons should not be available to the employee. Nor do I believe that it can be argued that it is a burden on business. In fact, as the noble Baroness, Lady Seear, indicated, it can sometimes be helpful to an employer to have an obligation placed upon those who supervise staff not to be too hasty. If the reason for dispensing with an employee has to be written down it would have a restraining influence on arbitrary actions in the employment environment.
For all those reasons I cannot accept that this is an unreasonable amendment. We have gone part of the way to meet a basic case with which we disagree but the Government have not been prepared to accept that. In those circumstances I have no alternative but to test the feeling of the Committee.
5.36 p.m.
On Question, Whether the said amendment (No. 31) shall be agreed to?
Their Lordships divided: Contents, 80; Not-Contents, 111.

DIVISION NO. 3

CONTENTS

Addington, L.

Bruce of Donington, L.

Airedale, L.

Campbell of Eskan, L.

Ardwick, L.

Carmichael of Kelvingrove, L.

Attlee, E.

Aylestone, L.

Cledwyn of Penrhos, L.

Blackstone, B.

Cocks of Hartcliffe, L.

Blease, L.

David, B.

Bottomley, L.

Dormand of Easington, L.

Brooks of Tremorfa, L.

Ennals, L.

824

Ewart-Biggs, B.

Mayhew, L.

Falkland, V.

Milner of Leeds, L.

Fisher of Rednal, B.

Mulley, L.

Foot, L.

Murray of Epping Forest, L.

Gallacher, L.

Nicol, B.

Galpern, L.

Northfield, L.

Glenamara, L.

Oram, L.

Graham of Edmonton, L. [Teller.]

Parry, L.

Phillips, B.

Grey, E.

Pitt of Hampstead, L.

Hampton, L.

Ponsonby of Shulbrede, L. [Teller.]

Harris of Greenwich, L.

Hatch of Lusby, L.

Rea, L.

Hooson, L.

Robson of Kiddington, B.

Houghton of Sowerby, L.

Rochester, L.

Howie of Troon, L.

Sainsbury, L.

Hughes, L.

Seear, B.

Irving of Dartford, L.

Sefton of Garston, L.

Jay, L.

Serota, B.

John-Mackie, L.

Stedman, B.

Listowel, E.

Stoddart of Swindon, L.

Llewelyn-Davies of Hastoe, B.

Strabolgi, L.

Taylor of Blackburn, L.

Lockwood, B.

Taylor of Mansfield, L.

Longford, E.

Tordoff, L.

Lovell-Davis, L.

Turner of Camden, B.

Macaulay of Bragar, L.

Underhill, L.

McCarthy, L.

Walston, L.

McGregor of Durris, L.

Wedderburn of Charlton, L.

McIntosh of Haringey, L.

Whaddon, L.

Mackie of Benshie, L.

White, B.

Mais, L.

Williams of Elvel, L.

Mason of Barnsley, L.

Winterbottom, L.

NOT-CONTENTS

Abinger, L.

Hood, V.

Ailesbury, M.

Hooper, B.

Allenby of Megiddo, V.

Hylton-Foster, B.

Allerton, L.

Johnston of Rockport, L.

Alport, L.

Kimball, L.

Arran, E.

Kinnaird, L.

Ashbourne, L.

Knollys, V.

Auckland, L.

Lauderdale, E.

Balfour, E.

Lawrence, L.

Belhaven and Stenton, L.

Layton, L.

Belstead, L.

Long, V. [Teller.]

Birdwood, L.

Luke, L.

Blatch, B.

Lyell, L.

Blyth, L.

McCoU of Dulwich, L.

Boardman, L.

Macleod of Borve, B.

Borthwick, L.

Manton, L.

Boyd-Carpenter, L.

Margadale, L.

Brookes, L.

Marshall of Leeds, L.

Brougham and Vaux, L.

Merrivale, L.

Caithness, E.

Mersey, V.

Campbell of Alloway, L.

Middleton, L.

Campbell of Croy, L.

Montgomery of Alamein, V.

Carnegy of Lour, B.

Morris, L.

Carnock, L.

Mottistone, L.

Cawley, L.

Mountgarret, V.

Clanwilliam, E.

Mowbray and Stourton, L.

Coleraine, L.

Munster, E.

Cox, B.

Murton of Lindisfarne, L.

Cullen of Ashbourne, L.

Nelson, E.

Davidson, V. [Teller.]

Norfolk, D.

Denham, L.

Norrie, L.

Elliot of Harwood, B.

Nugent of Guildford, L.

Elliott of Morpeth, L.

Orkney, L.

Gainford, L.

Orr-Ewing, L.

Gardner of Parkes, B.

Oxfuird, V.

Gibson-Watt, L.

Pender, L.

Glenarthur, L.

Peyton of Yeovil, L.

Gray of Contin, L.

Piatt of Writtle, B.

Gridley, L.

Radnor, E.

Haig, E.

Rankeillour, L.

Hailsham of Saint Marylebone, L.

Reay, L.

Renton, L.

Harvington, L.

Renwick, L.

Henley, L.

Rugby, L.

Hesketh, L.

Saint Albans, D.

Hives, L.

St. John of Bletso, L.

825

Savile, L.

Teviot, L.

Seebohm, L.

Thomas of Gwydir, L.

Selborne, E.

Trumpington, B.

Sharples, B.

Ullswater, V.

Skelmersdale, L.

Vaux of Harrowden, L.

Strathcarron, L.

Westbury, L.

Strathclyde, L.

Whitelaw, V.

Strathspey, L.

Wise, L.

Swansea, L.

Young, B.

Swinfen, L.

Zouche of Haryngworth, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.44 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 32:
Page 11, line 26,leave out subsection (2).
The noble Lord said: This amendment is a request for information in the sense that Clause 13(2) gives the Secretary of State a new power by adding to Section 149 of the 1978 Act. That affords the Secretary of State the power by order to vary or exclude certain parts of the 1978 Act. Most are either technical matters or those going to the exclusion or qualification of particular groups of workers.
I believe I am right in saying that the only orders made under Section 149 relate to redundancy payments for local government employees in 1983 and 1985 and the order of 1985 for the variation of qualifying periods as regards unfair dismissal. The Government are taking this new power under Section 149 giving the Secretary of State power to vary or exclude in respect of the section.
What is the purpose for which the Secretary of State wants this power? Is he going to vary the section so that the employer has no obligation to give reasons for dismissal to certain groups? Is the Secretary of State merely going to vary the two-year period by extending it? What does he have in mind? We are mystified as to why he should want this power as regards this section. I shall be happy if the Minister can explain.
Lord Strathclyde: This amendment would retain the current position whereby any change to the length of the qualifying period for the right to a written statement of reasons for dismissal has to be made by primary legislation. There are of course arguments of speed and convenience which can be made in support of the proposal to provide for any future changes made by statutory instrument. There is also logic in our proposal. The Secretary of State already has power to vary the qualifying period for the right to make a complaint of unfair dismissal by means of a statutory instrument subject to affirmative resolution. He has had that power since the unfair dismissal provisions were first introduced in 1971 in the Industrial Relations Act. Clause 13(2) simply means that the long-standing arrangements for making changes to the qualifying period for claims of unfair dismissal will also apply to any necessary changes in the qualifying period for the right to a written statement.
Any order to amend the qualifying period will have to be laid in draft and approved by a resolution of each House; so noble Lords will have the opportunity to consider and debate the detailed
826
provisions. The proposal does not reveal a hidden agenda of further proposals for changes in the qualifying period for the right to reasons for dismissal. Clause 13 will simply ensure that the rights to written reasons for dismissal and to claim unfair dismissal will be on all fours as regards the length of the qualifying period and the mechanism for making any future changes in the length of the qualifying periods. Our proposals are aimed at clarifying and simplifying the legislation. We have no plans at this stage for further changes in these qualifying periods.
With those reassurances I hope that the noble Lord sees that our proposal is logical and sensible and that he will not press this amendment.
Lord Wedderburn of Charlton: I am grateful to the Minister. I am not sure that we agree that the proposal is logical and sensible. But at least it is clear. This is an amendment to oil the mechanism. At the moment the Government have no plans to increase the period, but every year there are new Bills and I suppose that, every quarter, we can expect a few statutory instruments. It is quite clear that the Government have oiled the mechanism so that the change in the length of the qualifying period both for unfair dismissal and written reasons can continue jumping along from two years to we know not what.
I am happy that the Minister has explained the position carefully. I thank him again. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 33:
Page 11, line 27, at end insert—
("(3) Subsection (2) of section 53 of the 1973 Act shall not apply to an employee who:

(a) is summarily dismissed without any notice or is dismissed without lawful due notice, and within fcurteen days of such dismissal claims that he was unfairly dismissed or

(b) is denied unemployment benefit on the ground that he was guilty of misconduct.").

The noble Lord said: I intend to move the amendment briefly. I wish however to treat it with the intensity that it deserves. The amendment says to the Government, "Whatever else you do, surely there are two groups of people who are entitled to written statements of their dismissal". We are talking about the involuntary loss of the job of an employee at the decision of the employer. We are not necessarily speaking of unfair dismissal—simply of dismissal. The amendment refers to the case of the employee who does not receive a notice to which he is lawfully entitled; namely, at summary dismissal or at short notice.
A second type of case has already come before the Chamber and unusually, has been very clearly revealed. There is often some dispute but it appears to be common ground that where an employee is dismissed without notice and the employee goes to the social security office, the first question is whether he has made the necessary contributions. I am thinking of case that I know of.
The Committee will know of the matters to be gone through in that respect. If the employee jumps

827
that hurdle, the benefit officer may say, as has happened in a couple of these cases, "We have heard from your employer that you were dismissed for misconduct". I do not say that it is true in every case. Indeed I would say that it is not true probably in the majority of cases. I guess; one does not know. However, in a large number of cases the employer, not having given reasons to the employee, is bound to give reasons in a sense—and nearly always does give reasons—to the social security office.
And so, two things have happened. The employee has been dismissed without knowing why—I shall take the cases within the confines of my amendment; in this case there had not been proper notice —and/or goes to the unemployment benefit office and is told that he was guilty of misconduct and that that was the reason for his dismissal. He says "I've never heard of that. It's news to me". He is told, "Oh, there is an allegation that you have been fighting on the shop floor". He was the kind of person of whom that might well have been true. He looked as though he would fight. However, it was not true in this case. He eventually found out what the charge was but he did not receive his benefit. It was held up for a long time. Is it suggested that that kind of justice is proper?
We say, first, that where the employer is in breach of the contractual obligation or the obligation of minimum notice written in by the 1978 Act, the employee should be entitled to a reason, and a reason in writing. I appreciate the points that have been made and I was trying to be helpful when I interrupted the noble Lord who spoke earlier. Of course there are difficulties of embarrassment and difficulties in ending a probationary period, but the person dismissed is entitled to the reason in that circumstance.
Secondly, we say that he is entitled to a clear reason in circumstances where the employer is communicating with the benefit officer. If the employer can give the reason to the benefit officer, why on earth should he not be under an obligation to give it, and to give it in writing? Giving it in writing means that the person concerned can consult with an adviser over what has happened. If he goes to his trade union office or to his local citizens' advice bureau—I wish that Ministers would read more of the reports of the Citizens' Advice Bureaux; one which has just been published is relevant to such cases and to the whole Bill—and says, "My employer has told the local unemployment benefit office that I was fighting", the circumstances must be examined. However, if he goes along and says that he has been dismissed and shows a piece of paper which says that he was dismissed for fighting, at least the advice can start from something concrete. The piece of paper will show that the employer has said that and no doubt is prepared to substantiate it.
We have chosen two narrow areas. We have chosen people who have been thrown out on their ear without notice and people who are told that they are guilty of misconduct and are then deprived of unemployment benefit. It occurs to me that the drafting is open to challenge. Perhaps subparagraph (b) should read:
828
"is denied unemployment benefit on the ground that he was guilty of misconduct or of having left his employment without just cause".
We are putting the amendment forward as a matter of principle. I hope that the Government can be a little unbending in considering real people. One of the people I am thinking of is a single mother. She was thrown out of her job without notice and was later denied unemployment benefit. I cannot for the life of me see why the Government cannot accept that, whatever may be previous law and regardless of periods of probation and qualification, such a person, if she wanted it, should be entitled to a piece of paper saying that she was sacked because of incompetence or because she had been fighting. I cannot see how anyone could possibly oppose that in principle. It is in principle that I move the amendment. I beg to move.
Lord Strathclyde: I am not sure that I recognise the type of case referred to by the noble Lord, Lord Wedderburn, and the law as it stands today and the way he described it. It sounded like such an outrageous abuse that I would be more than happy to look into it further.
This amendment seeks to exempt two categories of employee from the requirement to serve any qualifying period in order to qualify for the right to a written statement of reasons for dismissal on request. First, it seeks to exempt those dismissed without any notice or without lawful due notice provided that they claim within 14 days that they have been unfairly dismissed. This is misguided. Those who do not have two year's continuous employment will generally not qualify for the right not to be unfairly dismissed, but under the amendment tabled by the noble Lord in order to qualify for a written statement of the reasons for dismissal many employees will no doubt submit a claim of unfair dismissal although it has no prospect of success. I cannot believe that this is what the noble Lord intends.
Secondly, the amendment seeks to provide those who have been denied unemployment benefit on grounds of misconduct the right to written reasons for dismissal without serving the normal qualifying period. This is based on a serious misconception. Although we have touched on this point this afternoon, perhaps I may re-emphasise that the provisions on written statements of reasons for dismissal have no bearing on a person's entitlement to unemployment benefit. The regulations on unemployment benefit are completely separate and entirely different.
The legislation provides that anyone who leaves his employment voluntarily without just cause can be disqualified for up to 26 weeks from receiving unemployment benefit. The legislation also provides that benefit may be disqualified in cases where a person loses his employment through his own misconduct. Whether these rules apply is a matter for the independent adjudicating authorities. They are the adjudicating officer in the first instance; on appeal, the Social Security Appeal Tribunal; and on further appeal on a point of law, a social security commissioner. When a person first makes a claim for unemployment benefit a standard inquiry form

829
is sent to the last employer seeking reasons why the claimant left his employment. Claimants are allowed to comment on those statements given by their former employer. A case will be referred to adjudication only where the employer has given written confirmation of the reasons for dismissal. Where, despite reminder, this is not given, benefit would be paid in full, including any necessary arrears.
I hope that I have cleared up this problem of losing unemployment benefit and that, in the light of my remarks, the noble Lord will be able to withdraw his amendment.
Lord Wedderburn of Charlton: I am grateful to the Minister for one thing—for his offer of help in the case to which I referred. It has been looked into. It is complicated, but matters are now much better than they were. As a matter of fact, as often happens in life, there were mistakes in what happened as much as evil purpose. It would have been much clearer if at a certain point the person concerned could have asked for a statement of the reasons for dismissal. That is how real life works. The Minister described to me the jurisdictions of the adjudication officers, the appeal tribunal and the social security commissioner. That does not help me to follow his argument that a written statement of misconduct has no bearing on unemployment benefit. Why, because he says so. I can tell him that it has a bearing on unemployed persons. They want to know.
Then the Minister says that, after the employer has told the adjudicating officer, the unemployed person is allowed to comment on the reasons that have been given in secret. Has he ever heard of natural justice? Does he know what its requirements are? To put it in its broadest terms, they are notice of the charge, an opportunity to reply to the charge and a fair opportunity of advice within an unbiased setting. But the procedure does not meet the terms of natural justice. Where an issue of misconduct is raised in regard to those who are without jobs and who, from their bedsitting rooms, do not look forward with any great joy to appeals to commissioners which take considerable time, one cannot say that there is no value in their knowing the reason for their dismissal. They want to know, though, as has been said this afternoon, it is quite true and extraordinary that a number of people who are dismissed accept dismissal and do not ask the reason. That has been my experience and is the experience of others with much greater experience whose work I have read.
The submission of unfair dismissal claims has nothing to do with the amendment. Paragraph (a) of the amendment touches not on cases concerning unfair dismissal, but on those concerning failure to give notice. In law, that is a matter of wrongful dismissal, which falls within the jurisdiction of the county court and the High Court, not of the industrial tribunal, at least until the Government make the order to transfer those actions to the industrial tribunal. It may be that someone who is summarily dismissed will bring an unfair dismissal claim in the tribunal, but, if people do not know the
830
reasons for their dismissal, it is highly likely that they will fill in Form 1 in order to see the reason for their dismissal. I have heard people talk of such cases. Where no reason is given, people say "It wasn't fair that I was dismissed. I don't know why I was dismissed. I'll fill out Form 1 to get the respondent's answer and then we'll see what the employer says". But it is a waste of time if there is a good reason.
It is absurd to cite such arguments. We shall withdraw the amendment, but this is a matter that tests the Government at a different level. They always prate about the individual, as though he was their concern. Here is the individual, and they are not particularly concerned, judging from the answer that the Minister gave us. We must look again at this matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 34 not moved.]
Clause 13 agreed to.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 35:
After Clause 13, insert the following new clause: —
("Secondary action by employees.
The Employment Act 1980 shall be amended as follows—At the end of section 17(2) there shall be added the words, "and if no associated employee of that employer is such a party".").
The noble Lord said: This is another fairness amendment, which relates to the Employment Act 1980 and to secondary action which has now become a term of art in our law. Perhaps I may preface my remarks by again saying that the amendment does not attempt to produce the law as we would see it.
This is an area where many people think—and, as I shall show in a moment, it is considered internationally—that the Government have gone too far. The problem arises because Section 17 of the 1980 Act defines secondary action in relation to a trade dispute when a person, especially the union, induces a worker to break a contract of employment, but, under that contract of employment, the employer is not a party to the trade dispute.
The amendment does nothing to change that structure, but there are two ways in which real life gives it a rather different meaning from that which it appears to have. In real life, a business is organised as a group of companies with each company separate from the others, each company is a separate employer and, if workers take action against one company rather than another, they will normally be found to be taking secondary action. If they take action in a situation in which all the subsidiaries are involved, they frequently find that employers are involved who are not employers under the contract of employment of workers party to the trade dispute with their own employer. The situation has been manipulated, although that may not have happened often. It was manipulated in the famous Wapping dispute, one of the fiercest industrial battles of recent times. When the employers moved their work, set up 11 subsidiaries and never denied the suggestion that the reason for having the distributive company, the supply company, the printing company and

831
various other companies for different purposes was to inhibit the legality of industrial action which was successful in certain respects.
In 1980, in reply to that suggestion, the noble Lord, Lord Prior, said that there was an exception in the section. There were in fact three exceptions, but only one is relevant here; namely, what is sometimes called the gateway to legality, where secondary action is permitted if it interrupts the contract with a first supplier or first customer of the employer in dispute. When the noble Lord, Lord Prior, was Secretary of State, he brought to his press conferences great charts—we all remember them—that showed how the exception would operate.
We are now some nine years on and it is right to say that it is generally accepted that that exception has never been known to operate in any major industrial dispute or major legal case. It is defeated by a congeries of reasons, the most important of which is exactly the same point as the first; namely, that the exception does not operate where the business is organised as separate subsidiaries in a group of companies or as separate companies—associated companies or employers, as they are called in the Act and in our amendment. That merely means companies that are under the same control or where one controls the other.
That was so in 1984 in the case of Dimbleby v The National Union of Journalists. If the union had taken action, as it thought it had, in a form that would interrupt the contract between Dimbleby and another enterprise, it would have been within the exception. However, it was found that the contract between Dimbleby's and the enterprise of T. Bailey Forman was with a different subsidiary from the company which was the employer in dispute and which had sacked the journalists. The variety of subsidiary companies therefore prevented the application of the exclusion.
I am happy to go into the facts of the Dimbleby case if the Minister wants me to, but I do not think that he will deny that, in that case as in a number of others, the definition of secondary action includes only the employer to the trade dispute. It does not include as a party the associated employer of that employer. That makes it almost impossible to satisfy what were said in 1980 to be the purposes of subsection (3) of Section 17, which has never been operative; namely, to allow a form of secondary action where there is a direct link between the enterprises.
That was very much at the core of the view of the Conservative Party itself in 1958 when, in a well known document on trade union law called A Giant Strength—one of the pillars of the historical literature on the subject—the Inns of Court Conservative Society, whose anonymous authorship is well known to include those who are now most eminent lawyers in the land, said:
"Once it is conceded that the strike is necessary to place countervailing bargaining power in the hands of a workman against his master, it is difficult to see why it is improper for the workers in industry A to use their power in support of the workers in industry B in the expectation or on the assurance that the workers in industry B will reciprocate in due course; … Further,
832
the old conception of a separate industry, and certainly of one industry isolated from the rest of the economy, is outmoded".
It continues:
"The power to strike sympathetically is politically, socially and economically justified if, without it, employees will have insufficient bargaining power; but not otherwise. On this test, in conditions of full employment and a delicately balanced economy … it is almost certainly unnecessary".
The society tests it. It does not say that it is out of the question. The same approach would lead to saying that at least it should be allowed where one faces the real employer. I use that phrase as the title, as it were, of the second part of my argument. It is found in the report of the committee of experts of the International Labour Organisation, an agency—the Minister said something; I am not sure what it was—of the United Nations which cannot just be put aside by the Government. I understand that the Government have not yet made their formal answer to that document, but it deserves to be looked at by the Committee.
In April this year the committee of experts looked at our law on this matter in relation to Convention No. 87 on freedom of association and protection of the right to organise. It said, having looked at the changes in the law, especially to Section 17:
"Taken together, these changes appear to make it virtually impossible for workers and unions lawfully to engage in any form of boycott activity, or 'sympathetic' action against parties not directly involved in a given dispute. The Committee has never expressed any decided view on the use of boycotts as an exercise of the right to strike. However, it appears to the Committee that where a boycott relates directly to the social and economic interests of the workers involved in either or both of the original dispute and the secondary action, and where the original dispute and the secondary action are not unlawful in themselves, then that boycott should be regarded as a legitimate exercise of the right to strike. This is clearly consistent with the approach the Committee has adopted in relation to 'sympathy strikes'. It would appear that more frequent recourse is being had to to this form of action … because of the structure or the concentration of industries…. The Committee considers that a general prhibition of sympathy strikes could lead to abuse and that workers should be able to take such action provided the intial strike they are supporting is itself lawful".
The committee later says that it asked the Government to introduce amendments:
"which enable workers to take industrial action against their 'real' employer and which accord adequate protection of the right to engage in other legitimate forms of industrial action such as protest strikes and sympathy strikes, as guaranteed by Articles 3, 8 and 10 of the Convention".
That is why I used the phrase "the real employer". I may be able to sum this point up. There is a parallel with the previous debate on time off at a different level of industrial relations.
The amendment is not an attempt to get rid of the Government's section on secondary action. It leaves that as it is. It says that if we are to have such a rule, then is not the ILO committee of experts reasonable when it says that it should operate with respect to the real employer. The real employer is the company, with its associated companies. It is either those that it controls or those that control it. The legal personality of each company is frequently put aside by the law. It is put aside every week in tax law. It is put aside in other areas of the law when legislation demands or courts decide.
It so happens that in the Dimbleby case this place decided that it could not judicially make an

833
exception, rightly or wrongly. I say that workers are entitled to have their collective rights, whatever the Government may think of them, and that they should operate on the basis that the ILO has suggested; namely, in respect of their real employer. The real employer is the economic entity—the group of companies: the employer and the associated employers with that company. That is the purport of the amendment.
I doubt whether the Government will accept the amendment. Perhaps they will comment on it. It will be interesting to see what line they pursue in resisting what we believe, on the basis of the ILO report, to be an unanswerable case. I beg to move.
6.15 p.m.
Lord Rochester: I have some sympathy with the amendment in so far as its aim is to draw attention to the actions of employers that, by the expedient of setting up what may be a number of associated companies, can claim, successfully that they are being subjected to secondary action in a way that I do not believe the Government intended in their earlier legislation. That was the situation, as the noble Lord, Lord Wedderburn, has reminded us, which obtained in the celebrated dispute at Wapping. There have been other similar instances. It may be that that point will be better dealt with in the Bill that we are promised in the next Session of Parliament, when it may be possible to deal in greater detail with the whole question of secondary action; but, like the noble Lord, I shall meanwhile be interested to hear what the Minister has to say on the matter.
Lord Brightman: I also appreciate the merits of the proposed amendment, provided that "associated employer" means only that one employer is a wholly owned subsidiary of the other employer. I should like to ask the noble Lord, Lord Wedderburn of Charlton, whether that is his understanding of the amendment. If so, I suggest that "associated employer" should be defined in the amendment.
The expression "associated employer" embraces a large spectrum, and if an amendment along those lines is to be put into the Bill it is necessary that it should be explained. My understanding of the amendment is that it is intended to apply only where there has been manipulation; that is to say, that one employeer is a wholly owned subsidiary of the other employer.
Lord Strathclyde: The new clause seeks to extend the scope for lawful organisation of secondary action. The Government believe that there can be no case for such a step, and the new clause is therefore unacceptable.
The present law on immunity for inducing secondary action was introduced in order to tackle one of the most unacceptable features of industrial action during the 1970s—the indiscriminate inducement of industrial action among workers whose employer was not party to the trade dispute as a means of bringing pressure to bear on the employer in dispute.
834
It is worth recalling that the law still enables the inducement of industrial action to have immunity form civil proceedings if it takes place in contemplation or furtherance of a trade dispute between workers and their own employer. It is sometimes all too easy to forget that fact. In any circumstances in which there is such a dispute, immunity for inducing interference with contracts will be available.
Section 17 of the 1980 Act, however, removes the statutory immunities which might otherwise be available for inducing interference with contracts from inducement of certain secondary action. Such action is defined in Sections 17(1) and 17(2). Section 17(2) provides that inducement of secondary action, in relation to a trade dispute, takes place only when it involves interference with a contract of employment and the employer under the contract is not a party to the trade dispute.
Other provisions in Section 17 provide for exceptions to that rule; for example, if the inducement is targeted in certain specified ways and the action is likely to achieve the relevant purposes the statutory immunities may still be available.
In particular, the section makes immunity possible for inducing industrial action by workers at an associated employer of an employer in dispute, or at the associated employer's customers or suppliers, where both the following conditions are satisfied: first, the principal purpose of the action is to prevent or disrupt the supply of goods or services which, but for the dispute, would have been supplied by or to the employer in dispute; and, secondly, the action is likely to achieve that purpose. This is very far from giving carte blanche in terms of immunity for organising industrial action among employees of an associated employer of the employer in dispute.
The new clause seeks, in effect, to extend the scope for lawful organisation of secondary action so that it would be available for inducement of employees of any employer associated with the employer in dispute. This would be a very significant extension, and one for which the Government see no justification.
What is meant by "associated employer"? The answer is to be found in Section 30(5) of the 1974 Act, which states:
"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".
There is nothing in this that would necessarily imply that events relating to a trade dispute in one company would be of direct relevance to the affairs of an associated company. Noble Lords opposite may argue that this is always and invariably the case and attempt to justify the new clause on this basis. But that is in reality mere surmise on their part. The better test is whether the inducement of industrial action among employees of an associated employer satisfies the relevant tests set out in Section 17, which I have already described.
We have heard much from the noble Lord, Lord Wedderburn, about cases which demonstrate—so it is claimed—that employers have split up existing

835
companies or set up new companies in order to reduce the scope for lawful inducement of industrial action against them. I have to say that mere assertion does not make a case. Employers may have a multitude of reasons for organising or reorganising their businesses; for example, to create separate profit centres or to devolve managerial authority in respect of particular operations. Nothing I have heard has convinced me that industrial relations legislation has played any really significant part in the nature of such decisions.
The noble Lord may find it offensive that companies should be allowed lawfully to organise their businesses as they see fit in order to ensure that their prosperity and secure employment can be provided, but this Government do not.
The noble Lord also went on to argue that the International Labour Organisation has in some way condemned United Kingdom law on immunity for organising secondary action. Such assertions are far from the truth. An ILO committee of experts commented on aspects of UK compliance with ILO Convention 87 in a report issued earlier this year. Such committees frequently make similar observations and remarks about legislation in a number of countries, including several of our EC partners.
Lord Wedderburn of Charlton: Will the Minister allow me to intervene? Would he name those countries in the EC and the issues on which they have been condemned?
Lord Strathclyde: I am sure that I shall be able to do so, but perhaps the noble Lord will permit me to continue. The UK Government are sure that nothing in this legislation is incompatible with the guarantees afforded by ILO Convention 87. The Government are in the process of responding to the ILO committee's report, and as part of this response explain why its views may have been based on misunderstanding or misinterpretation of the relevant law and the context in which it operates.
Perhaps I may briefly respond to the intervention of the noble Lord, Lord Wedderburn, concerning our European Community partners. I cite, as one example, West Germany and the right to strike. Of course, at the root of all this are the views of the Labour Party towards secondary action as a whole. The conference that we saw a couple of weeks ago included the new concept of a genuine interest. I do not propose to cover that argument now.
Our belief is that there is no justification for making it easier to organise secondary action than is currently the case under the law as it stands. If the noble Lord is determined to press this new clause, he will be seeking to make it easier to organise more and more damaging strikes. Unless that is his true intention, I hope that he will see fit to withdraw the amendment.
Lord McCarthy: Before the noble Lord sits down, in the light of what he has just said will he answer this question? If the Government were finally to be condemned by the last committee in the ILO which
836
considers the matter, so that there is nowhere else to go, would they take any notice and repeal the legislation, or would they ignore it?
Lord Strathclyde: That is an entirely hypothetical situation. We shall have to wait to see what the response of the Government is.
Lord Wedderburn of Charlton: The Minister's last remark is rather alarming because either the Government will take action on it or they will have to do what the employees in the Foreign Office would tell them to do —that is, to honour their international obligations by denouncing the basic convention on freedom of association. I cannot believe that Her Majesty's Government are contemplating that. I do not know.
Perhaps I may start by saying how grateful I am to the noble Lord, Lord Rochester. He is quite right in saying that in some respects the matter would be better dealt with under the next Bill which we now know will be coming. The only trouble is that when I was drafting the amendment we did not know that there would be another Bill. These Bills arrive so fast and furious now that one never knows quite when to put the amendments in. No doubt we shall come to it again.
I appreciate the point of the noble and learned Lord, Lord Brightman. The Minister has already read out the definition in Section 30(5) of the 1974 Act. I apprehend that there is exactly the same definition in Section 153 of the 1978 Act. It is a rather curious definition because it only includes companies. As has been found in a number of cases, other employers do not come within the purview. It concerns companies and the text is control —the holding of a subsidiary company. A recent decision of the Employment Appeal Tribunal sticks to the notion of 51 per cent. in recognisable hands. That is where control of different companies is distributed among different members of a family and one cannot find quite 51 per cent. in both companies. These were not said to be associated companies. However, we all know that these definitions have a habit of producing such problems.
Control of a holding and subsidiary character, or two subsidiaries with one controller of companies, is the test. I appreciate the point of the noble and learned Lord, Lord Brightman, that some narrower, delimiting definition should be used here. With respect, I would resist his definition of "wholly owned", because it would be so easy to put it aside by stepping outside the wholly owned character; that is even if one defined it in what I might call a taxation way, to be loose at the edges.
However, it may be that some sensible definition could be formed. For example, it seems to me, with great respect, that the only point the Minister had was when he touched upon but did not develop the point that groups of companies holding subsidiaries may be conglomerates. It may well be that the interests in one company of their employees may be wholly different from those in another. I was interested that one of the major points made by the Minister was that our amendment might allow for secondary action where—if I may use the example of

837
a group—the employees of a subsidiary had interests which had no direct relevance to the interests of the employees of the holding company who were, let us say, primarily in dispute. That interested me very much.
This is all from the point of view of the Minister. I can see from his point of view that it is a very interesting test. It rather implies that if there is direct relevance, what the Inns of Court Conservative and Unionist Society said in 1958 still has a great deal of sense. It was that that is secondary action which should be allowed. We may hear more about direct relevance in the future debate; it is a very important phrase.
As regards Section 17(4), the exception in the 1980 Act for associated employers was a special one, as made clear in the Dimbleby judgments, especially by the late Lord Diplock. It requires substituted goods and a contract at a time when the supply is interrupted. That is a particular area and was always meant to be. The point we are making is more general. That leads me to say a few more words about the ILO. I am sure that many people, not merely in this Chamber but also in Geneva, will read Hansard with great care.
I am grateful to the Minister for answering my question as regards which other European partners have got into difficulty, let us say, with the ILO committee of experts and freedom of association committee. I had forgotten the example that the Minister produced. It was the example of the civil servants—the Beamte—in the Federal Republic of Germany who do not have any right to strike. I had forgotten that as I am not accustomed to cases where workers have no right to strike. But that is where we have got.
Frankly, the Minister is only trying to make me cross when he says there is no criticism of the Government in the ILO report. He has read the report; he knows that it recommends that the Government should change the law. That is what the report is about. It is not just an odd comment off the cuff late at night after a good bottle of brandy in Geneva. This is a direct request—it is true that that is forwarded to the other ILO bodies—to change the law not merely on Section 17 but also on Section 29 which defines a trade dispute as the law now stands. It also asks for a change on something as outrageous as Section 3 of the 1988 Act where a union is unable to apply its rules, even after a ballot in which the vast majority have voted for a strike, to dissociate itself from the minority who have remedies in court. The report has some extreme comments on that situation. All the comments add up and the ILO sees the relevance of all these things as one picture.
The Government know very well that they have been criticised. They should not try to sidestep that criticism. They should try and answer it if they can, not simply try to defend every scintilla of every word they have put on the statute book since 1980. I should have thought that by now the Government would get the feel of things. I should have thought the Government would realise that people are fed up, especially in this area, with the Government's
838
attitude of not giving way one iota. We shall pursue matters in future in this area with the benefit of the Minister's reply but not, in my view, with the benefit of the great wisdom of the Government's policy. I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
6.30 p.m.
Clause 14 [Redundancy payments: assimilation of age limits for men and women]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 36:
Page 11, leave out lines 32 to 43 and insert—
("(1) An employee shall not be entitled to a redundancy payment if he or she has before the relevant date attained the age of 65.").
The noble Baroness said: We now enter a different arena altogether. With the leave of the Committee, I wish to speak to Amendments Nos. 36 and 37, although they are not grouped together, as they cover pretty much the same ground. I am indebted to Age Concern for briefing on the issues covered by the amendments. I am sure that it will be well known that this organisation has already achieved a great deal for our older citizens and has interested itself in the position of the older employee.
Clause 14 introduces into redundancy law the concept of a normal retiring age contained in the Employment Protection (Consolidation) Act 1978, Section 64(1)(b). In operation this is a complicated concept, so complicated that many industrial tribunals and many personnel and trade union officials, let alone workers, find some difficulty in understanding and applying it. As properly understood, the concept can create significant injustice as part of an exclusion rule can deprive older workers of the protection available to younger employees. Where an employee is deemed to be over normal retiring age, he can be arbitrarily excluded from any right to redundancy payment without the protection of the law.
The concept has created hardship in practice. Judgments have accepted that employers are entitled to raise or lower the age at which employees are to be mandatorily retired. So long as reasonable notice is given and the new policy is carried out, the reasonable expectations of employees are taken to have changed and the new retiring age is then put into policy. One particular case which Age Concern quotes is Hughes v. the DHSS 1985 where this view is upheld.
There would be nothing to stop an employer arbitrarily changing the retirement age from 60 to 55, or perhaps even lower, and thereby depriving employees of their right to redundancy payments. The purpose of Amendment No. 36 is to ensure that all employees under the age of 65 have the same treatment in redundancy law. The purpose of Amendment No. 37 is to define the words "normal retiring age" so that employers cannot lower it as a means of bypassing the protection for older workers envisaged in the previous amendment.
We had some debate about discrimination on age grounds last night. Unfortunately, the debate took

839
place rather late at night and for that reason the amendment was not pressed by the noble Baroness, Lady Seear, and her noble friends. Nevertheless, I had the impression that the Government were reasonably sympathetic to issues of age discrimination. Certainly, in view of the changing demographic situation to which reference has been repeatedly made during discussion of the Bill, there is a necessity to do something to ensure that the older worker has some protection. With those comments, I beg to move.
Lord Boyd-Carpenter: The noble Baroness oversimplifies this issue by simply suggesting that redundancy payments should be available to anyone under the age of 65, provided they are discharged in the ordinary way. There are quite a number of occupations which have an earlier age of retirement. I shall refer to one obvious example which I am sure the Committee will be aware of. In our foreign service, retirement—in my view, most misguidedly—is insisted upon at the age of 60 by the Foreign Office. If someone is retained beyond the age of 60, as occasionally happens in the case of ambassadors of considerable quality and then he is dismissed, it would be rather odd that he should then receive a redundancy payment, having already passed the age at which he might be expected to be retired.
I believe the Bill as it stands deals with this complicated matter as effectively as possible. I am quite sure that simply substituting a blanket age of 65, regardless of the normal age of retirement of the person concerned, would cause far more injustice and difficulty than can be expected from the present law. I hope, therefore, that the Committee will reject the amendment.
Lord Strathclyde: The aim of this amendment is to make a redundancy payment payable to an employee up to the age of 65, whether or not he or she has passed the normal retiring age in his firm. However, a redundancy payment is paid to compensate an individual for the loss of a job which he or she had a reasonable expectation might continue. When an employee reaches retiring age that expectation no longer exists, so there is really no loss which falls to be compensated. Of course it would be unusual anyway for a person to be made redundant after passing retiring age. Normally, such a person would have retired and left.
It is increasingly common for people to retire at an age below 65, and when such an age is reached it is right and logical that redundancy entitlements should cease provided that age is non-discriminatory between men and women, as is the case with unfair dismissal.
In order for an age limit below 65 to apply there must be a normal retiring age applicable within the firm and to the particular job. For instance, if a firm has a normal retiring age of 62 for all its executive and clerical staff but that age does not apply to cleaners and catering employees, then those ancillary workers will be covered by the 65 age limit.
840
I should like to echo the words of my noble friend Lord Boyd-Carpenter. Our proposal fairly reflects the purpose and spirit of the statutory redundancy scheme. Therefore I do not believe that the amendment should be accepted.
Turning to Amendment No. 37, initially I had some difficulty in understanding .he meaning of the new clause. I am grateful to the noble Baroness for explaining the intention. I note that when the Bill was in Committee in another place the Opposition brought forward similar amendments to the concept of a normal retirement age in relation to unfair dismissal claims. If the intention of the Opposition is to repeat their proposals, with some variations, Amendment No. 37 goes only part of the way.
As drafted, the amendment would make sense only if at the same time amendments were made to Sections 57 and 64 of the 1978 Act to allow for the "reaching of retirement age" to be one of the reasons an employer must give to justify dismissal. That alone would be reason enough for me to urge the Committee to reject the amendment on the grounds that it would increase the risk of an employer having to defend complaints of unfair dismissal from employees who had simply been retired.
Let us look more closely at the amendment. It seeks to define the concept of normal retirement age by reference to the reasonable expectations of the employees in the occupation concerned. The noble Baroness claims that there is a good deal of confusion about the meaning of "normal retirement age" and that a definition is needed to reduce uncertainty. I do not agree with that assertion. It is for industrial tribunals to determine the meaning of "normal retirement age" in a particular case, and in doing so they will doubtless take account of the conclusions of the House of Lords in the Waite v. GCHQ case in 1983. In that case it was concluded that if there is a contractual arrangement on retirement at a specific age the presumption will be that that is also the normal retirement age, but that if in practice employees holding the same position as the complainant regularly retire at a different age, such employees could reasonably have come to regard that different age as their normal retiring age. I am not, however, aware of a significant volume of cases in which the uncertainty is such as to require changes to the law. Moreover, I believe that the amendment would tend towards greater confusion and uncertainty, for both employers and employees alike. Therefore I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness Turner of Camden: It is not my intention to press the amendments tonight. I am grateful for the explanation given by the Minister for opposing them. I shall study his explanation with some care and decide whether or not we should proceed further on those questions at Report stage.
I believe that there is some misunderstanding as to what the second amendment seeks to achieve. Our intention is to prevent a situation whereby an employer can decide on a certain normal retirement age for a particular individual which might not apply

841
to other employees. I thought that the amendment made it very clear that:
"'normal retiring age' means the age at which those employees, in the same position as that employee, reasonably expect to be retired as on the same day on which this Act is passed".
In other words, we do not want rights that an employee might otherwise have to be bypassed simply because the employer arbitrarily alters—as he can now—the normal retirement age. That was why we put down the amendment and linked it with Amendment No. 36, which sought to ensure that employees could not be robbed of entitlement to redundancy payments if they were deprived of employment on redundancy grounds below the age of 65.
However, in view of what the Minister said, I shall not press the amendments but I shall look carefully at what he said and take further advice. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 agreed to.>
[Amendment No. 37 not moved.]
Clause 15 [Abolition of redundancy rebates]:
6.45 p.m.
On Question, Whether Clause 15 shall stand part of the Bill?
Lord Rochester: I shall speak very briefly to the Motion, of which I have given notice. Employers with fewer than 10 employees are at present entitled under the 1978 Act to rebates on their statutory redundancy payments, which they can recoup from the Redundancy Fund to which they have contributed. My noble friends and I were not happy when earlier legislation confined payment of redundancy rebates solely to those very small firms, feeling that they should be of more general application.
Now the relevant provisions of the 1978 Act are to be repealed so as to remove the entitlement altogether. It is such a short clause that the best way of obliging the Government to justify their action seemed to be to question the inclusion of the clause in the Bill. That is what I am now doing.
In the Explanatory and Financial Memorandum to the Bill the abolition of redundancy rebates for employers with fewer than 10 employees is estimated to result in savings to the Redundancy Fund of £7.5 million per annum. That represents only 5 per cent. of the overall total paid in rebates to employers in 1986–87, which is the last year for which I have figures. Yet in future no help of that kind will be available to the small firms involved.
Might that not be damaging, for a number of reasons? The business concerned might be harder to sell. In some cases firms might even be forced into bankruptcy when they would otherwise be contemplating only a few redundancies. It might even be that some small businesses, seeing that rebates were suddenly to stop, would conclude that if they were to receive any compensation from the Redundancy Fund they had better act quickly and
842
put the redundancies through as soon as possible. That would help nobody.
It is with those points in mind that I must ask the Government how they justify the inclusion of the clause in the Bill.
Lord McCarthy: It is with considerable pleasure that I support the noble Lord who has just sat down. I am very pleased that the party that he represents has thought fit to put down the Motion. If they had not done so—because we might have thought that the topic had been debated again and again both in this Chamber and in another place —we might not have had an opportunity to ask the Government why they propose this measure at this particular time. When one looks through the various statements which have been made it is remarkable how rarely the Government have been forced to give any explanation for what they now propose to do.
It is worth retreading the ground that we have covered in order to reach this point. As the noble Lord said, from 1965 we had a bipartisan policy on redundancy payments. It was started by a Conservative government although passed into effect by a Labour government. It was a bipartisan policy which provided that industry in general would contribute to a redundancy fund, and those employers who felt it necessary to declare workers redundant would be able to withdraw from that fund.
At the time when this measure was introduced, the pay-back was 75 per cent. The pay-back has been consistently reduced: from 75 per cent. at the beginning to 50 per cent. in 1969, 41 per cent. in 1977 —it is not only Conservative governments which have reduced the pay-back—35 per cent. in 1985, and, as we know, in 1986 it was abolished altogether for all firms employing more than 10 people. We have never been given a serious answer to the question of why this pay-back has been first reduced, then almost wholly abolished and finally even that small remaining amount of pay-back given to firms employing fewer than 10 people is about to be scrapped.
This provision in the Bill was not even mentioned at Second Reading in this Chamber when the Bill was introduced by the noble Lord, Lord Trefgarne. It was not explained in any way by the Secretary of State, as recorded in Hansard of 11th January 1989 at col. 861. He merely told the other place that the Government were doing it. I may have missed the passage somewhere, and if I have it is because it is a very small entry, but so far as I know there is nothing in the authoritative tome Burdens on Business that prepares us for it at all. Until this moment the only reason why we have any animation of the Government's ideas is because during the Committee stage in the other place the Member for Ludlow tabled an amendment (which we might have put forward in this Chamber if we had thought about it) in which he tried to continue this redundancy payment clawback on a small scale for two years.
The reason he gave was to me the perfectly acceptable one that the Government had said when they retained it in 1986 that they did so because

843
small businessmen, as the noble Lord said, might very well be declaring people redundant in a near insolvency situation. In fact he was quite frankly particularly representing farmers and the National Farmers' Union, which had made special representations on this matter because it felt that in the current state of the agricultural industry many farmers might find it necessary to declare workers redundant—small farmers who might come well within the bounds of the 10 worker criterion and who might require the quite small but still significant assistance from the redundancy payments measure.
It is interesting that the Minister of State, Mr. Cope, admitted that the payment was retained in 1986 for those reasons. He admitted that the conditions under which it was retained still applied and that the Government had had representations from the National Federation of Self-Employed and Small Businesses, the Country Landowners' Association and the National Farmers' Union. Yet he said that he could do nothing.
At this point it is worth quoting his remarks. He said that the arguments about small firms—those which had been placed before us—with which he sympathised, centred on whether we should still be involved in the social engineering from which the practice of subsidising solvent employers arose 20 or more years ago. Of course. The explanation followed. He said that that time had passed and we should close that chapter in our financial history. In the end there is in fact no reason at all.
Why help only the insolvent, near bankrupt and bankrupt employer? Why should the employer be driven into bankruptcy to claim from the redundancy fund? In fact, why not let this last remaining piece of bipartisanship stay where it is for a few more years in order to help some people who are stuck in a redundancy situation? I support the motion.
Lord Strathclyde: I appreciate the aim of noble Lords who oppose the Question, That this clause stand part. I can see why they regard what we are doing away with and creating as a financial burden on small firms. However, I believe that that is based on a misconception. The noble Lord, Lord Rochester, asked for a justification. I sincerely hope that I shall be able to give him one.
As the noble Lord, Lord McCarthy, pointed out the rebate was done away with in 1986 for all employers except the smallest (those with less than 10 employees). The reason was that, in our view, the rebate amounted to a subsidy for the making of redundancies which we felt was no longer appropriate in current labour market conditions.
At that time we made an exception for small firms, feeling that some relief might be helpful; however, I would stress that the sums of money at stake are relatively small. As I have already said, the rebate payable at the moment on an average statutory payment is of the order of £490. I doubt whether such an amount is of more than marginal significance to any small company.
However, the point that I particularly wish to impress on the Committee is that there already
844
exists within the legislation provision for redundant employees to be paid directly by the department where the employer is unable for any reason to make the payments to which the workers are entitled under the Act. If an employer disappears, dies or has gone insolvent, on the other hand—and perhaps this is the most relevant situation—if the employer is still trading but has serious cash flow problems, then the payments can be made direct from the Redundancy Fund.
In 1988–89 —I appreciate that the noble Lord, Lord Rochester, did not have these figuresߞ24,500 such direct payments were made, at a cost of £32 million, not merely to small employers but right across the board. I feel that this procedure is the right way to deal with the problem to which I presume this argument is directed.
I trust that I have said enough to persuade the Committee that the clause should be allowed to go through.
Lord Rochester: I am grateful to the noble Lord, Lord McCarthy, for supporting me in persuading the Minister to explain the reason why the Government have included this clause in the Bill. I am not altogether satisfied with the explanation that he has given, relying as it does so much simply on the sums of money involved. However, we have more important clauses in the Bill to discuss. Having succeeded at least in getting the Minister to offer some explanation as to the reasons for including this clause in the Bill, I do not now propose to pursue the matter further.
Clause 15 agreed to.
Clauses 16 and 17 agreed to.
Clause 18 [Pre-hearing review of proceedings before industrial tribunal]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 38:
Page 14, leave out lines 11 to 14 and insert ("by the tribunal itself.").
The noble Baroness said: The object of Clause 18 is to provide for pre-hearing reviews of industrial tribunal cases in place of the present pre-hearing assessments. At present, pre-hearing assessments are comparatively rare but when they take place it is possible for tribunals to give a costs warning to the applicant. No doubt the reasons why they are not widely used is that, generally speaking, they seem to have served little purpose.
The tribunal is very reluctant to give a costs warning after a brief hearing where arguments are put without hearing any evidence. ACAS has expressed concern about how far the proposed system of pre-hearing reviews would resolve the problems said to arise with pre-hearing assessments. Obviously the Government want to weed out cases that they think should not go to ITs at all. However, if the use of pre-hearing reviews spreads, it could seriously impede the conciliation process generally and lead to a two-tier IT system. Moreover, it is by no means unusual even now for cases regarded as non-starters at pre-hearing assessments to go on to

845
a full IT hearing and to be won. However, what is even worse is that, as the Bill stands, it makes provision for the pre-hearing review to be conducted,
"by such a person as may be determined".
In other words, it is by a single individual, usually the chairman sitting alone.
The purpose of my amendment is to ensure that if there are to be pre-hearing reviews they should be conducted by the tribunal. It is not satisfactory that such a hearing should be left to a single individual, no matter how highly qualified. As it stands, the clause would appear to give industrial tribunal chairmen sitting alone the powers to determine jurisdictional questions. These issues are often of considerable importance to employees because they affect the scope of the protection offered by employment law. The proposal to eliminate the two industrial tribunal side members from pre-hearing reviews could also seriously undermine the tripartite nature of the IT system.
The Law Society and the TUC have serious doubts about it. The Law Society states:
"There will be few cases where it could be appropriate for a Chairman sitting alone to determine questions on jurisdiction, the burden placed on Chairmen being too great, and therefore cases where jurisdictional questions arise should continue to be dealt with by the full Tribunal sitting to resolve them at the outset, as is presently the practice so that the views of the lay members may be given".
These are serious considerations put forward by people who have a close knowledge of the present system. On those grounds I beg to move the amendment.
Lord Rochester: I should like briefly to support the noble Baroness. In addition, it may be worth adding that the British Institute of Management feels that it would be better if the present system of informal discussions were retained—those informal discussions which often now take place before a tribunal goes ahead—rather than have the formalised structure set out in the Bill.
However, if we are to have an institutionalised pre-hearing review, then I agree with the noble Baroness that it should be undertaken by an appropriate body. That body should be the tribunal.
Lord Strathclyde: Let me remind the Committee of the purpose of this clause. It enables the Secretary of State to give industrial tribunal chairmen, or, if appropriate, a full tribunal, the power to conduct a prehearing review of a case and to require a party to pay a deposit of up to£.150 as a condition of proceeding further with or defending the application. We intend that this new power should be used only where the case is thought to have little prospect of success or to be frivolous, vexatious or otherwise unreasonable. When the unfair dismissal provisions were orginally introduced the expectation was that industrial tribunals would provide a cheap, speedy and informal means of resolving certain disputes in the employment field. The tribunals have lived up to those expectations and provide a highly effective and speedy means of resolving a whole range of employment issues.
846
The proposals in the Bill are intended to make the tribunal procedure even more streamlined than it already is, by tackling directly the problem of ill-founded cases. By introducing a method of weeding out the small number of cases where there is an abuse of the system, we shall be concentrating resources more directly on the genuine cases.
The Opposition's amendment would restrict the new regulation-making powers of the Secretary of State. He would be unable to provide for the new pre-hearing reviews to be carried out by a tribunal chairman sitting alone. PHRs and the making of a deposit order could therefore only be carried out by a full tribunal.
The amendment would therefore frustrate to a substantial extent the Government's intention of ensuring that there are effective powers to deal with the problem of ill-founded cases. These proposals were the subject of a consultation exercise last year and a wide number of organisations responded with their views. I will not deny that there were some dissenting voices among those who commented. Nevertheless, there was sufficient general support for the idea for us to decide to proceed with implementing it.
The main purpose of the PHR will be to clarify the issues in dispute and to identify cases which seem unlikely to succeed. Such issues do not normally require the practical expertise of the lay members of industrial tribunals and can be dealt with more speedily and effectively by chairmen sitting alone.
Nevertheless, I must emphasise that we recognise that in some exceptional cases—perhaps where the issues involved are particularly complex or contentious—it may be appropriate for a full tribunal to conduct the PHR; and we have provided for that possibility in new paragraph lA(1)(a)(ii) of Clause 18.
The whole point of this clause is to make life easier for the industrial tribunal in dealing with genuine cases where there has been a problem. The amendment does nothing to help that cause. I therefore hope very much that noble Lords opposite will think further about the amendment.
Lord Wedderburn of Charlton: Before the Minister sits down, will he elaborate on one very important matter? The clause makes provision whereby regulations allow for more important cases to go to the full tribunal. Is it envisaged that the regulations would place among those more important cases those in which there is a jurisdictional issue, about which my noble friend Lady Turner spoke?
This matter has disturbed a large number of people. Jurisdictional issues include the exclusion of the jurisdiction of the tribunal in cases of industrial conflict, lock-outs, industrial action and a large number of other matters. It is the view of many people that those issues should certainly be heard by the tribunal. It would be quite wrong for the chairman to hear those on his own. Is the Minister prepared to say anything about those matters being put at least to the full tribunal?
Lord Meston: Before the Minister replies, is it intended that there should be a right of appeal from the single chairman to the full tribunal? In important matters such as jurisdiction cases, a chairman may decide that an application is out of time and that time should not be extended. In my view, there should be a right of appeal to the full tribunal.
Lord Strathclyde: The noble Lord, Lord Wedderburn, asked about the jurisdiction aspect of the tribunal. It will be up to the chairman of the tribunal to decide where he has jurisdiction and when a full tribunal should be asked to look at a case. On the point about appeal, yes, in all cases there will be methods of appealing against any decision.
Lord McCarthy: Will the Minister tell us what he means by methods of appeal? How do appellants appeal? Do they go to the tribunal? Do they go to the EAT: What do they do?
Lord Strathclyde: I shall have to look into the methods of appeal and let the noble Lord know.
Baroness Turner of Camden: I am not very happy with the Minister's response. I thought that we had made a fairly strong case on this side of the Chamber. We contend that it is unfair to an individual applicant, in a situation where he may feel that he had a good case, simply to be subject to the decision of a chairman sitting alone. As has been pointed out by a number of noble Lords on this side of the Committee, there is the major question of jurisdiction, which has already been raised by the Law Society. With respect, I do not believe that the Minister answered that satisfactorily at all.
Concerning appeals, I do not know what a method of appeal is. What is a method of appeal? I know of rights of appeal. But how do methods of appeal come into this legislation? I believe the Government are over-reacting to what they believe to have been a stream of ill-founded cases. My experience, including some experience in this area as a union official, is that, generally speaking, unions are loath to take cases on behalf of members unless they feel such cases are well founded. For an individual, going to a tribunal is quite a daunting experience. Only the most highly motivated individual is likely to go to a tribunal without backing from some quarter, either from his own resources or from a union. It is a myth to maintain, as the Government do, that there seem to be so many ill-founded cases that we have to introduce this new system to streamline the operation of the legislation. In order to do that we have to give one individual, the chairman, powers to make these decisions at pre-hearing reviews.
I do not intend to press the amendment this evening. We shall however think carefully about this. I feel there is scope for further amendments on Report. Having made those comments, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Cullen of Ashbourne): If this amendment is agreed to, I cannot call Amendment No. 40.
Lord Rochester Lord Rochester moved Amendment No. 39:
Page 14, leave out lines 18 to 35.
The noble Lord said: The requirement that parties wishing to continue to participate in industrial tribunal proceedings after a pre-hearing review should pay a deposit, as proposed in the clause, raises a major matter of principle. The right of free access to industrial tribunals has long been regarded as an essential element in the fairness of the system. Until now no one has been able to claim that lack of money imposed a check on the search for justice. Once the principle is breached, the amount charged is open to variation and to accusations of political motivation, which may reduce respect for the system's impartiality.
It is noteworthy that the British Institute of Management and the Engineering Employers' Federation have both expressed reservations about the imposition of a deposit of up to £150 as proposed in the clause. It is true that in its submission the Institute of Personnel Management was concerned about the amount of time and money which could be spent by employers in dealing with frivolous cases. But the institute saw an improvement in the uniformity, the quality and the effectiveness of pre-hearing procedures and remedy, rather than the premature authorisation of orders requiring payment of a deposit.
Once a revision of those procedures has taken place it will be time enough to consider deposits of much less than £150, I should have thought, to be paid by applicants wishing to proceed against the advice of those conducting the preliminary hearing or by those who, perhaps at the last minute, withdraw or fail to appear within, say, 48 hours of a hearing. That is very far from what is proposed in subsections (2) and (3). And that is why I suggest to the Committee that those subsections should be left out of the Bill. I beg to move.
7.15 p.m.
Lord Wedderburn of Charlton: It seems right and sensible to us that we should support the noble Lord's amendment and not move our separate Amendment No. 40. It is clear that the amendments concentrate upon the same matter. It is perhaps the meanest part of a mean Bill to suggest that an applicant to an industrial tribunal should contribute to alleviating the burdens on business. The chairman, even when sitting alone, can decide that the applicant should pay 150 deposit as his entrance fee to the tribunal of justice. It is an ignoble and petty proposal. As the noble Lord has said, it will be a boomerang provision because it will bring the tribunals into disrepute.
What are the figures? The Minister may produce some more, but the only evidence that we have concerning the tribunals appears in the Employment Gazette. The tribunals have been able to impose costs since 1980 whenever there is a case they deem frivolous, vexatious and unreasonable. There are pre-hearing assessments to warn people that they may do so. It was interesting to hear the Minister on the amendment moved by my noble friend speak of the target. He spoke of cases that were vexatious,

849
frivolous or had little chance of success. So the extra that the Government want to get at are those cases that have little chance of success and that are not vexatious, frivolous or unreasonable.
As has been said, there are already the pre-hearing assessments. In 1986ߝ87 only 294 cases are on record in which costs were ultimately pronounced out of 39,000 complaints. In 1987–88 costs were awarded in only 205 cases out of 34,000 complaints. In 1987–88 there were 781 pre-hearing assessments of which only 341 were warned that they might risk a costs award and some of which, a handful it is true, nevertheless went on ultimately to success.
An even more interesting figure is how the pre-hearing assessments come about. They can be brought about either by the demand of a party to the case or by the chairman of the tribunal. The number of cases in which the chairman decided tribunals ought to demand a pre-hearing assessment was only 281. Out of thousands of cases these are significant indicators. They are not proof. We have no figures sufficient for that. They are indicators that the picture of industrial tribunals clogged up by unreasonable claims brought by unprincipled people against burdened employers is a fantasy. It is a fantasy as anyone will say who knows anything about industrial tribunals. It is not true. So there is no need whatever for this type of clause.
There may be a need, as the noble Lord and the Minister have said, to consider the pre-hearing assessment arrangements and perhaps to improve them. But access to the tribunal on a deposit would seem to breach a golden principle. It is a principle which the Government have pronounced in all other areas. What did they do in respect of the Employment Act 1988? In a situation where there was little proof that union members had been debarred from going to the High Court in cases against their union, they nevertheless insisted on having a clause in the Bill—which we did not resist although we believed it to be unnecessary—providing that members should have access to the court no matter what the union rules. The Government did so because access to the courts was their principle.
When a multinational corporation goes to the High Court with a bad case but not one which can be struck out in accordance with normal rules—that is to say, because it is frivolous, vexatious or discloses no reasonable cause of action (which is exactly the same as the present tribunal situation)—judges are rightly reluctant to strike out causes of action because the view is that the person or company is entitled to the day in court. There must be a good argument for striking out and in any event those involved would go to the Court of Appeal.
Is it proposed that a High Court judge should have the power to impose a monetary condition upon the large company which appears with a case which is poor but not frivolous? If not, why not? As the noble and learned Lord the Master of the Rolls has made clear, there are problems in parts of the High Court and the Court of Appeal where it is difficult to deal
850
with a large number of cases at a proper rate. Are there to be monetary deposits as a condition to litigate? Once that appears in the tribunal is it to spread, and if not why not?
We are now talking about cases which the Government have chosen to target for the imposition of a deposit. Let us remember that it was only because of the outcry that they were prevented from imposing a fee. Their original proposal was to impose a fee of £25. Of the bodies which responded the only ones which agreed to a deposit of £150 were those which did not like the fee. They wanted a deposit which the man or woman could recover. Therefore, the Government have already put forward a preposterous proposal and now they have put forward a proposal only minutely less than preposterous.
Further, the Committee should not forget that under the clause the Minister can vary the amount. It will not remain at £150 for ever. A survey reported in the Guardian in August showed that 75 per cent. of claimants involved in unfair dismissal cases in industrial tribunals are still unemployed. It does not mean that they will not obtain another job, but that is the position. It is from them that this special deposit is required in order to go to a tribunal of justice.
Were the issue not about employment law the Committee would throw out the proposal without a moment's hesitation. Were it about the ordinary courts of justice no one would consider it. But it is about industrial tribunals and employment law and it appears that we can take liberties with principle. I suggest that the Committee supports the comments of the noble Viscount on this sensitive and important matter.
Baroness Gardner of Parkes: I wish to see the Bill remain as it stands. My experience in industrial tribunals shows that at a pre-hearing assessment the person involved is warned that if he loses the case costs will be awarded against him. When costs are implemented after the case has been fully heard he then explains that he is living on unemployment benefit and can pay nothing. It means that in the end the costs do not exist because in many cases it is impossible to collect the money.
Yet employers may have sat through a case for many days, perhaps weeks. Often they have taken many members of staff to sit in court and present their case which, as a result of the pre-hearing assessment, was determined not to be sound. I do not comment upon the proposed figure, but it is right that there should be some way of making people prove the seriousness in advance of bringing the case after a pre-hearing assessment has decided that there is no good reason.
I must mention a particular case in principle because I cannot go into details at this stage. I am referring to the case of someone who has brought 60 to 70 such cases. At a public hearing I said, "According to this documentation you have brought your case 16 or 17 times?". The reply was, "No, many more". I said, "How many times?". The answer was, "Sixty to 70 times against employers from all over the country". It is a waste of time to have people

851
sitting in court on each occasion re-justifying the decision that the case was not a fair case to bring.
I ask the noble Lord opposite whether there is a way in which people can be ruled out as being vexatious. Chairmen of tribunals have said that it is impossible, yet everyone has said that an ordinary legal case can be classified as being vexatious and therefore not heard. I shall be interested to hear the answer because the noble Lord, Lord Wedderburn, implied that there is already provision to deal with vexatious litigants. I should like to know more because at tribunals I have been informed that there is no such power. I believe that the principle behind the clause is good.
Lord Wedderburn of Charlton: Before the noble Baroness sits down I must apologise because I did not hear everything she said. However, I believe that she asked me whether the tribunal has equivalent powers to those of the High Court to strike out a case. Without going to the books I apprehend that its power is not equivalent to that of the High Court. However, it would be another matter if we were discussing a proposal concerning the tribunal's powers in respect of vexatious and frivolous cases and striking out. I should willingly join her in such discussions, but it is a different position from that of imposing a deposit of money on an unemployed person as a right to go to a tribunal.
Baroness Gardner of Parkes: The case I am making is that at the moment this appears to be the only type of power capable of dealing with such cases. I have asked a number of Members of the Committee who I thought would know the answer. They have told me that they believe there to be no parallel between the tribunal and the court of law. I should be interested to hear whether anyone in the Committee knows whether there is such a parallel.
Lord Meston: The noble Baroness is right; the tribunal has no power equivalent to that of the High Court to declare someone a vexatious litigant. I have had experience of people who have brought to tribunals numerous claims and who cannot be stopped, however vexatious. She is right in saying that there is a problem. Perhaps there should be an equivalent power enabling the tribunal to allow such people to continue only with leave. That may be a solution but it is only part of the solution to the problem. The fact that there is a problem is beyond doubt and I support the amendment.
It is a sad fact that a large number of applications to industrial tribunals fail completely. As the noble Baroness, Lady Turner, said, the other side of the coin is that a number of cases which appear to be non-starters succeed triumphantly. It is a question of balance, of making sure that the cases with merit go ahead and those with none are stopped painlessly, quickly and with the minimum of expense.
I have had to sit through an enormous number of hearings of hopeless, or near hopeless, applications to industrial tribunals. They are often conducted by unrepresented, angry and determined litigants. "Angry" and "determined" are only two adjectives;
852
sometimes they are verbose, obsessive and have elaborate conspiracy theories and cannot be controlled. Cases of discrimination are particularly prone to that. They can be used by people who are still employed, and who have no complaint of unfair dismissal, as an opportunity publicly to air their grievances which turn out to have nothing to do with racial or sexual discrimination.
I have often tried to think of a better sifting and screening procedure but one must look at the issue in perspective. Many cases do not reach hearings but are settled by conciliation through ACAS. The stronger cases have the help of the unions or bodies such as the Commission for Racial Equality and the Free Representation Unit. However, there is still a hard core of cases—and this is the problem which must be addressed—where applicants are not attracted by conciliation. They want their day in court before the tribunal. Those are people with weak cases whose weaknesses they will not acknowledge. They do not have the help of their union because the union has better things to do with its time and resources and they do not have the support of responsible bodies like the Commission for Racial Equality, which equally is not tempted to part with its limited resources to back weak cases.
Another source of the problem is this. However weak or strong a case, no applicant can have legal aid. In other areas of the law and litigation, legal aid is a valuable way of sifting out cases without merit. Legal aid will help an applicant identify and articulate his best points, get rid of his worst points and settle. This is now a very sophisticated area of the law, like it or not. However with no lawyer to guide or give unpalatable advice that it is pointless to go on, these people go on and on and on. Those are the problems. It is no kindness to applicants with hopeless cases to allow them to go on. As has been said, it is expensive and time-consuming for the respondent. Frankly, racial discrimination is wicked but it is also hurtful and unfair to people who are unjustly accused of racial discrimination. I have seen people who are very hurt to be accused publicly of racial discrimination. Of course, those cases hold up the cases which have merit. Those are the problems.
What are the remedies? At present we have this optional pre-hearing assessment system and a power to give costs warnings. However, it is a fact that the pre-hearing assessment is seldom used and cost warnings are not always given. When they are given they do not deter the most determined applicant who has little to lose. However, I suggest that Clause 18 is not an answer. A maximum deposit of £150 will not deter. First, that is a relatively small amount; secondly, it is a maximum amount and there will have to be exceptions for those on social security or unemployment benefit; and, thirdly, as the noble Baroness, Lady Turner, mentioned a few moments ago, at that stage the tribunal will only have limited information and so cannot make a proper assessment.
Therefore, I suggest that the Government should look again at this clause and that the answer is not to require that people show money. They should show merit. The real answer is to make more and better use of the pre-hearing assessment and cost warnings.
7.30 p.m.
Lord Strathclyde: In his opening remarks the noble Lord, Lord Rochester, talked about justice. In this clause there is no sense of perverting justice in any shape or form. It is no good the noble Lords, Lord McCarthy and Lord Wedderburn, trying to pretend that there is because that is not so.
Perhaps I may explain. This amendment would frustrate our intention of giving tribunals stronger powers to deal with the problem of ill-founded cases. Since it substitutes no alternative proposal tribunals would be left with their existing powers to issue a costs warning where they believed that a case had little prospect of success or was frivolous, vexatious or otherwise unreasonable. My noble friend Lady Gardner of Parkes explained exactly what is wrong with the present system.
We made quite clear in our consultation exercise last year that the PHA and costs warning procedure had not worked well and needed to be replaced. For a start, the award of costs can obviously only be made after the hearing once the unnecessary expense has been incurred; and frequently the award of costs is ineffective because the employee does not have the resources to meet the bill. The new power to order a deposit will act as a deterrent to those bringing ill-founded cases before the case reaches a full hearing.
I really cannot see what are the objections to our proposal to enable tribunals to order deposits; and I must emphasise that they are deposits only. A deposit order will only be an option where a case appears at the pre-hearing stage to have little prospect of success or is thought to be frivolous, vexatious or otherwise unreasonable; and where a deposit is ordered it will be left to the discretion of the tribunal chairman carrying out the pre-hearing review to determine the exact level of deposit. The noble Lord, Lord Meston, made the point that £150 is a maximum. In some cases the deposit may be as low as £5 where that is considered appropriate.
Tribunals will be able to order either party to pay a deposit, so the new power will therefore apply to both employers and employees; and it is our intention that a deposit will only be forfeited if the person required to pay it loses the case and has an order for costs made against him. In other words, he will only forfeit the deposit where the tribunal carrying out the full hearing considers that the case was indeed frivolous, vexatious or otherwise unreasonable. In such cases the deposit will be paid to the other party in part settlement of the costs. In all other circumstances the deposit will be returned at the conclusion of the case to the person who paid it. I really do not see what the Opposition finds so objectionable about this proposal.
I have been asked what evidence there is that the problem of ill-founded cases exists and requires treatment. We made quite clear in the consultation document that the pre-hearing assessment procedure was not working as well as expected. The figures for the number of PHAs carried out in 1987–88 show a further decline. Under the new streamlined procedure chairmen will normally carry out pre-hearing reviews sitting alone without the lay
854
members and this will enable PHRs to be carried out more swiftly than before. In absolute terms the number of ill-founded cases is not large; but employers regularly complain about the cost and management effort involved in defending such cases and our proposals address that problem directly.
The noble Lords, Lord Wedderburn and Lord Rochester, questioned the degree of support for our proposals, particularly among employers. It is accurate to say that there were some dissenting voices among those who responded to our consultation exercise on this subject last year. That is hardly surprising, and indeed it might be rather worrying if that were not the case. But there was sufficient general support for our proposals to enable us to proceed with implementation.
Perhaps I may be allowed to quote some examples. The CBI welcomed,
"the broad thrust of the proposals set out in the consultation paper on industrial tribunals".
The Institute of Personnel Management saw the proposals as,
"a definite move in the right direction,"
and supported them all broadly. There was also support from the Institute of Directors, the National Chamber of Trade, the Association of Independent Businesses and the British Retailers Association, among others.
I reject entirely the argument that this proposal is a tax on justice. Surely the noble Lords on the Opposition Benches recognise that time and money spent defending and hearing ill-founded cases is a drain not only on employers' resources but also on the public purse. It is also ultimately unfair to those who wish to bring genuine cases to the tribunal. As things stand at present, an employee rarely has anything to lose by making a complaint to the tribunal and we are not changing that state of affairs. Our proposals simply aim to weed out unreasonable cases by making people think twice before they pursue them. By acting on the small number of people who abuse the system we shall ensure that it can work more effectively for the majority whose complaints are genuine.
Let me remind the Committee again that we do not expect there to be a pre-hearing review of every single case; nor do we expect a deposit to be ordered in every case which is the subject of a pre-hearing review. Furthermore, in ordering the deposit the tribunal chairman will have total discretion to set it at a level which he believes to be appropriate for that case.
Those are the fundamental facts of the case. It has nothing to do with perverting justice and it is nothing for any genuine applicant to be worried about. I do not see what the Opposition finds so objectionable about this proposal and I very much hope that the noble Lord will withdraw his amendment.
Lord Rochester: I shall try not to detain the Committee unduly because I am conscious that we have now reached the dinner hour. I am grateful to all noble Lords who have taken part in this short debate, particularly the noble Lord, Lord Wedderburn of Charlton, who denied that many

855
unreasonable claims were being brought to industrial tribunals and who supported me in saying that, in his view, there was no justification for requiring people—some of them very poor—to pay deposits. The amount now contemplated is not the fee of £25 which was originally considered but a deposit of up to £150.
The noble Baroness, Lady Gardner of Parkes, was concerned about the number of vexatious claims which could be brought. I am grateful to my noble friend Lord Meston, with all his current experience of these tribunals, for saying that what is needed are adequate ways of dealing with frivolous claims rather than introducing the concept of paying a deposit. I was particularly interested in my noble friend's point concerning legal aid as being a good way of eliminating unreasonable claims.
The noble Lord, Lord Stratchlyde, said, among other things, that in appropriate cases deposits would be returned to the claimants. Perhaps he would be good enough to answer a question on that point. Where deposits are returned to claimants is it the Government's intention that the claimants should receive interest on those payments, given the high rates of interest which now obtain? The noble Lord may need guidance on that point.
In my initial speech I did my best to anticipate most of the points that were made by the noble Lord, Lord Strathclyde, in his concluding remarks; but perhaps he is now in a position to answer my question.
Lord Strathclyde: I understand there are no proposals at the moment to pay interest on the deposit. Furthermore, I understand that only a relatively short space of time of about three months is involved. I have not been able to work out the interest that would be due on £150, but perhaps I can put the argument this way. If someone is willing to put down that sort of deposit in the first place I am sure he would not mind forfeiting what must be a relatively small amount of money over three months.
Lord Rochester: I am not very convinced by that answer. My understanding is that more than a few months can elapse in cases going before a tribunal and I am not at all happy that no undertaking can be given that interest will be paid. There are a number of other points on which I am not satisfied, as must be plain to the Committee. In the circumstances, a good way of introducing the dinner break would be for me to divide the Committee.
7.44 p.m.
On Question, Whether the said amendment (No. 39) shall be agreed to?
Their Lordships divided: Contents, 42; Not-Contents, 67.

DIVISION NO.4

CONTENTS

Airedale, L.

Broadbridge, L.

Ardwick, L.

Carmichael of Kelvingrove,L

Barnett, L.

Blease, L.

David, B.

856

Dean of Beswick, L.

Nicol, B.

Donoughue, L.

Parry, L.

Dormand of Easington, L.

Phillips, B.

Ewart-Biggs, B.

Ponsonby of Shulbrede, L.

Falkland, V.

Prys-Davies, L.

Galpern, L.

Robson of Kiddington, B.

Graham of Edmonton, L. [Teller.]

Rochester, L. [Teller.]

Seear, B.

Grey, E.

Shepherd, L.

Hampton, L.

Stedman, B.

Llewelyn-Davies of Hastoe, B.

Stoddart of Swindon, L.

Strabolgi, L.

Lockwood, B.

Tordoff, L.

McCarthy, L.

Turner of Camden, B.

McIntosh of Haringey, L.

Underhill, L.

Mackie of Benshie, L.

Wedderburn of Charlton, L.

Masham of Ilton, B.

White, B.

Mason of Barnsley, L.

Winchilsea and Nottingham, E.

Meston, L.

NOT-CONTENTS

Abinger, L.

Henley, L.

Arran, E.

Hesketh, L.

Astor of Hever, L.

Hives, L.

Balfour, E.

Hooper, B.

Barber, L.

Johnston of Rockport, L.

Beaverbrook, L.

Kimball, L.

Belstead, L.

Long, V.

Blatch, B.

Mackintosh of Halifax, V.

Borthwick, L.

Macleod of Borve, B.

Boyd-Carpenter, L.

Mersey, V.

Brookes, L.

Monson, L.

Brougham and Vaux, L.

Morris, L.

Byron, L.

Munster, E.

Caithness, E.

Napier and Ettrick, L.

Carnegy of Lour, B.

Nelson, E.

Carnock, L.

Oxfuird, V.

Cork and Orrery, E.

Radnor, E.

Craigavon, V.

Rankeillour, L.

Crathorne, L.

Reay, L.

Crickhowell, L.

Renton, L.

Cullen of Ashbourne, L.

Seebohm, L.

Davidson, V. [Teller.]

Selborne, E.

Denham, L. [Teller.]

Sharples, B.

Elles, B.

Skelmersdale, L.

Elliot of Harwood, B.

Strathclyde, L.

Elliott of Morpeth, L.

Strathmore and Kinghorne, E.

Ferrers, E.

Gardner of Parkes, B.

Teviot, L.

Glenarthur, L.

Thomas of Gwydir, L.

Greenway, L.

Ullswater, V.

Gridley, L.

Vinson, L.

Haig, E.

Westbury, L.

Harvington, L.

Wise, L.

Headfort, M.

Zouche of Haryngworth, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.52 p.m.
[Amendment No. 40 not moved.]
Viscount Long: I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage of this Bill begin again at 8.50 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Licensing and Clubs (Amendment) (Northern Ireland) Order 1989
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Skelmersdale)The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Skelmersdale) rose to move, That the draft order laid before the House on 25th July be approved.
The noble Lord said: My Lords, I beg to move that the Licensing and Clubs (Amendment) (Northern Ireland) Order 1989, a draft of which was laid before this House on 25th July 1989, be approved. The order is short, but it contains important changes, one of which is designed to reduce the availability of off-sales alcohol late at night. This is a most serious matter in Northern Ireland, where there is a great deal of concern about the abysmal behaviour of many who drink in public in the later hours. I hope that your Lordships will support these changes.
The guts of this order are to be found in Articles 3 to 6, and I shall come to those soon. First, I shall briefly explain each article in sequence. Article 3 concerns ancillary businesses on licensed premises. The present law restricts public houses and off-licences to the business authorised by the licence, which is the sale of alcohol. However, it also allows them to sell cigarettes, crisps, nuts and other items which go naturally with selling alcohol. Whilst the Government do not currently intend to make any changes to the statutory lists, it seems more than strange that such changes can only be made by primary legislation. This article therefore simply gives a power allowing any future changes to be made by regulations.
Article 4 is wholly beneficial. It provides for extension licences and special authorisations when New Year's Eve falls on a Sunday. This occurs on average once every seven years, and next New Year's Eve will be one of those occasions. The present law prevents alcohol being sold in licensed premises or registered clubs after 10 o'clock on Sunday. The Government have been persuaded by representations received that the special nature of New Year's Eve merits a modest relaxation of the law. The effect of the article therefore will be to enable hotels, restaurants, and pubs of an approved standard, as well as registered clubs, to sell drink beyond the normal time of 10 in the evening on that particular Sunday, up to one o'clock in the morning on the Monday, provided—and this is an important safeguard—they obtain the requisite licence or authorisation.
I turn now to Article 5 which introduces a ban on the sale of alcohol from all off-sales outlets after 9 p.m. It is the most important part of the order, and is really an extension of provisions in the Licensing (Northern Ireland) Order 1987, which banned sales from freestanding off-licences after 9 p.m. The ban did not extend to off-sales from pubs or the off-sales outlets attached to them, which were able to continue with off-sales to 11 p.m.
That restriction was aimed at reducing the alcohol available to those persons, mainly in the younger age group, who persist in drinking in public and generally behaving in a most offensive way. It was apparent that these people had been buying their drink mainly from the freestanding off-licensed premises. The 1987 change helped to alleviate the problem but there remained substantial concern that futher restriction was needed, since they were turning to the other outlets for their drink.
In passing, may I commend the no alcohol pubs. Armagh, Ballymena and more recently Dungannon, have introduced these to encourage young people away from an alcohol related environment. There was another factor to be considered. The 1987 ban affected the viability of some of the off-sales shops, who claimed that the loss of two hours' trading was having a disproportionate effect on their business. Following a review of the position in the light of various representations received, the Government were persuaded that some of these shops were indeed trading at a disadvantage.
In order to meet all these concerns the Government decided that the most sensible answer was to put a ban on all off-sales after 9 p.m., including those from the off-sales outlets attached to pubs. That is the purpose of this article, which also bans off-sales over the bar in pubs. Article 6 deals with offences involving minors. I know your Lordships are concerned, as I am, about under-age drinking. I have already mentioned the encouraging move towards no alcohol pubs. However, we still have to keep a tight rein on licensing offences involving minors. This article creates a new ground of defence for a person charged with selling alcohol to a minor, requiring him to prove that he had used all due diligence to prevent the offence from ocurring. The same defence will apply to a person charged with allowing a minor in the bar area of a pub, or in an off-licence.
The noble Baroness, Lady Masham, and her group, in their report on young people and alcohol, recommended that the onus in these circumstances should be placed firmly on the licensee. I agree wholeheartedly, but believe that we must get the balance right. On the one hand, licensees must know their responsibilities. On the other, we must have a sound defence for the conscientious licensee who makes a genuine mistake. I believe that the new defence, which is identical to comparable ones in the rest of the United Kingdom, strikes a sensible balance. The next few minutes will show whether I have gone into sufficient detail in this order. As usual I shall be delighted to answer such questions as your Lordships may have. In the meantime I beg to move.
Moved, that the draft order laid before the House on 25th July be approved.—(Lord Skelmersdale.)
8 p.m.
Lord Prys-Davies: My Lords, I thank the Minister for explaining the provisions of this short but important order affecting the licensing laws of Northern Ireland. It seems that the order can be viewed as the third package of the recent reform of the licensing Acts in Northern Ireland, the other two having been introduced in 1987.
I shall be brief and merely comment on three of the provisions of the order. First, and for the reasons given by the Minister, I welcome the wording of the defence that will be made available to a licensee in a prosecution brought against him in respect of the sale to a minor of intoxicants on licensed premises. That will bring the law in Northern Ireland on this matter into line with the law not only of England

859
and Wales, but also of Scotland which, I believe, first introduced this defence as long ago as 1976.
I myself have no brief for harmonisation unless there is a real need for it. However, I am sure that everyone will agree that the terms of the new defence contained in Article 6 should be made available in Northern Ireland.
Secondly, I wish to raise a small point about Article 8(5). I understand and fully agree with the reason for paragraph (5) which extends the definition of the word "resident" to include a guest who receives overnight accommodation in a public house. According to the wording of the paragraph, a resident means inter alia a person who,
"has in writing engaged a room for the succeeding night".
I am not aware that this phrase has been construed by the courts. Neither am I aware that there is a precedent for this phrase in other legislation. However, I may well be wrong on that point. I wonder whether the phrase should have been more closely defined. I am a little worried that the provision as worded could raise problems. For example, would a written record of a telephone booking amount to a written engagement by the guest? I am not so sure that it would. When does the written document become an engagement? If there is a written record but it is unsigned by the guest or the traveller, does that amount to an engagement? I raise those two questions as evidence that there could be problems with the wording of the paragraph.
Thirdly, I want to refer to Article 3. As the Minister has explained, this article empowers the department by regulations, subject to affirmative resolution, to modify the list of the ancillary businesses which may lawfully be carried on in licensed premises. Until I had read the article I had not appreciated that an Order in Council could provide a safe legal route for modifying the scope of primary legislation in respect of a specific matter which is itself covered in primary legislation. I am not an expert in this field and it is with considerable diffidence that I refer to this point of constitutional propriety. Perhaps the noble Lord can confirm to me, if not tonight then in writing, that there is no possible conflict between Article 3 of the order and the primary legislation contained in Section 28(7) of the Licensing Act 1971. If the noble Lord confirms that it is legitimate to use the Order in Council to authorise a way around a specific provision contained in primary legislation, that would be a further cause of concern about the government of Northern Ireland by Orders in Council.
My comments may not be of much help to the Minister. I shall follow his reply with interest and, subject thereto, we support the order.
Lord Blease: My Lords, my noble friend Lord Prys-Davies has as usual dealt thoroughly and ably with the contents of this amending order. I fully support the views he has expressed from the Opposition Front Bench. I welcome the Minister's statement of concern about under-age drinking in Northern Ireland. It is worth noting that in June the Minister's own department issued a report of a
860
survey that indicated that there are fewer under-age drinkers in Northern Ireland than in the rest of the United Kingdom, though I do not mean to express that we are in a better position in Northern Ireland in regard to under-age drinking. Indeed the noble Lord has indicated that there is still great concern in Northern Ireland and that efforts are being made to curtail that sad habit.
Can the Minister explain the proposed extension of the licence to registered clubs, hotels and public houses for New Year's Eve when it falls on a Sunday? He has indicated that on average this occurs once in seven years. As I understand it, the extension applies only to the sale of intoxicating liquor for consumption on the premises. The extension is limited to three hours, until 1 a.m. on Monday, 1st January. Therefore, purchases of alcohol should cease at 1 a.m. Does this mean that public houses will continue to have the additional 30 minutes for what is commonly known as the clearing up period during which barmen can do their work about the premises and whatever alcohol has been bought can be consumed? It is important clearly to understand the closing hours from the point of view of enforcing the legislation. It has been a contentious point for many years.
This is the first occasion in the House on which I have addressed the noble Lord since his appointment as a Northern Ireland Minister of State. We all recognise that ministerial responsibilities in Northern Ireland are not the easiest of government portfolios. The holder of any Northern Ireland ministerial position is deserving of every possible understanding and goodwill. I wish to add my good wishes to those already expressed to the Minister from all sides of the House and also to indicate my support for all earnest efforts to promote peace and prosperity for the people in Northern Ireland. I support the order.
Lord Skelmersdale: My Lords, I agree with the noble Lord, Lord Prys-Davies, that this is a genuinely beneficial and helpful order. Article 8(5) almost exactly duplicates Section 84(1) of the Licensing Act (Northern Ireland) 1971, the only difference being the reference to cover pubs which of course can, since the Licensing (Northern Ireland) Order 1987, provide accommodation. Therefore, it has quite a long precedent. The noble Lord asked whether the way one deals with a telephone call and so on has ever been tested in the courts. I do not know but I anticipate—this is purely an off-the-cuff statement—that the proof of the pudding, so to speak, would be in the signing of the residents' book when one gets the key of one's room. If I am wrong I shall write to the noble Lord.
The noble Lord asked about Article 3. I too find this process rather confusing. I am advised that, so far as concerns Northern Ireland, and for all I know more generally, Orders in Council are primary legislation, and so it is "cricket", so to speak, to amend existing primary legislation by new primary legislation. That is what we are doing throughout the order.
I appreciate that that brings a rather wider and very much larger subject into the debate. The noble

861
Lord may have noticed that the noble Lord, Lord Hylton, has a Starred Question down for answer on Wednesday next week which will cover that precise point. With the agreement of the noble Lord, we can perhaps develop the thinking then.
Why have we changed the defences for offences relating to minors? As I said earlier, that stems from a recommendation made by the group chaired by the noble Baroness, Lady Masham. As the law stands, it is too easy for a licensee to claim that he did not know the age of a customer, and all too difficult for the prosecution to prove otherwise. The onus will now shift to the licensee to either persuade the court that he had no reason to suspect that the person was under 18 or that he exercised all due diligence to avoid commission of the offence. He might do the latter by, for example, asking the customer for proof of his age or by making sure that his staff are fully conversant with the law in that area.
The noble Lord, Lord Blease, whom I am delighted to welcome back to our debates—this is the second debate that I have had the honour of handling from the Dispatch Box—asked about the record of the consumption of alcohol by minors and what the department was doing about that. As he said, a recent DHSS report on drinking among school children showed that a large proportion of young people—66 per cent. of boys and 80 per cent.of girls—either do not drink or do so only a few times a year. However, a small proportion drink frequently and consume significant amounts of alcohol. Indeed, the drinking habits of young people seem to mirror the pattern of adult drinking in Northern Ireland. I am sure that the noble Lord will agree that that leaves a certain amount to be desired. That confirms that the attitudes of young people to the use of alcohol are clearly influenced by the example set by parents in particular and by adults in general.
For that reason, the department is convinced that, while it is important to provide health education for young people on all aspects of alcohol, it would be wrong to concentrate solely on that group. A health education promotion awareness campaign aimed at all groups in society is required and the department intends that the issue of its health promotion strategy for the prevention of alcohol misuse in Northern Ireland should be the first step in that direction. The new Northern Ireland health promotion unit has been asked to develop a health education programme for the whole community as a matter of urgency.
I am glad to say that the Department of Education is supporting and encouraging a broad and balanced health education programme in schools. Programmes of study in the compulsory and contributory subjects in the new school curriculum will include guidance on alcohol and alcohol misuse. Schools will be expected to include activities which develop healthy lifestyles and increase pupils' understanding and awareness of the social and physical hazards associated with alcohol misuse. The emphasis in all of that work will be on preventive measures.
Because of the apparent flouting of the law by some young people who claim that they are able to drink in pubs and clubs and buy alcohol from
862
off-licences, the RUC is reviewing the present handling of under-age drinking and associated offences. It is proposed to initiate a number of measures to ensure a standard and effective approach to the problem throughout the force. These will include close monitoring by sub-divisional commanders of local stations of all incidents of under-age drinking and associated offences, and the submission of regular returns to RUC headquarters. That will be supported by a publicity campaign to help raise the general level of public awareness of the problem and advise parents, those in the drinks trade and those at risk of offending that existing laws will be rigorously enforced.
This is a genuine problem in Northern Ireland, and in my view the order will help to crack it. With those words, I commend the order to the House.
On Question, Motion agreed to.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until 8.50 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.16 to 8.50 p.m.]

Employment Bill
House again in Committee.
Clause 18 agreed to.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 41:
After Clause 18, insert the following new clause:
("Dismissal of employees in strikes or other industrial action
The following words shall be added to section 62(2) of the 1978 Act—
"or
(c) that the complainant had taken part in a strike or other industrial action in respect of which a ballot had been held which satisfied section 10 of the Trade Union Act 1984, and that the employer had acted unreasonably in dismissing the complainant
or
(d) that the complainant had taken part in a strike or other industrial action at the end of which the employer had refused to reinstate the complainant and during which the employer had engaged one or more new workers to do work which was the same or substantially similar to that done by the complainant" ").
The noble Lord said: It was my fate during the 1982 &1984 Bills on employment law and trade unions to move the first post-prandial amendment and, once again, I rise after dinner to an excited and crowded Chamber to move the amendment.
This is another of the amendments that we have called the fairness amendments. They are, as I have already said, particular points upon which we believe that at this stage the Government should think again about their employment and trade union legislation. The amendment before us concerns the dismissal of employees who are taking part in industrial action or who are locked out. That is to say, it concerns Section 62 of the 1972 Act.
At the moment, if I may summarise it baldly, the position is that unless an employer selects or victimises one or more of those who are taking part, who are locked out or who have a direct interest in the dispute or lock-out, no jurisdiction exists for an industrial tribunal to adjudicate upon a claim by one of those taking part in industrial action who have been dismissed that the dismissal was unfair.
The two areas where we say that that provision should be reviewed and where some small amendment should be made are, first, where there has been a valid ballot and the employer has acted unreasonably, and, secondly, where there has been industrial action and the employer has refused to reinstate after the end of the dispute or the lock-out and has taken on a substitute workforce during the dispute.
One of the reasons why we put these points—I am sorry again to weary the Minister with this source of our concerns—is the report of the committee of experts of the International Labour Organisation of April this year. The report reviewed carefully, against the backdrop of the freedom of association convention, the present state of the United Kingdom law on this matter. Although the Minister was able to produce one other area of review that led to adverse criticism of one other member of the Community—namely, the Federal Republic of Germany, with regard to the law that we previously debated—I suspect that in the area of the dismissal of those taking industrial action, there is no equivalent case. The report begins with the committee fully recognising,
"that the reform of the law on labour relations is both legitimate and necessary in order to ensure that the industrial relations system operates in an equitable and efficient manner, and that it adequately reflects current social and economic needs".
There is a long passage where the committee accepts the need to review and reform the law on those matters according to the country's policies. The committee goes on to say that looked at against the background of the law on freedom of association, according to minimum international standards as set out in the convention, the dismissal of strikers to the extent that we allow it is inconsistent with that minimum standard. I quote part of the conclusions:
"The Committee considers that it is inconsistent with the right to strike as guaranteed by Articles 3, 8 and 10 of the Convention for an employer to be permitted to refuse to reinstate some or all of its employees at the conclusion of a strike, lock-out or other industrial action without those employees having the right to challenge the fairness of that dismissal before an independent court or tribunal".
The refusal to reinstate without right to challenge forms part of our amendment. I am well aware that that would lead to the tribunal in such a case having to review the reasonableness of the dismissal. In other words, I am well aware that the bipartisan policies of 1971 and 1974—I do not include the present Government because they have gone far beyond them—which said that we must keep all the merits of industrial disputes outside the tribunal's purview, would be put aside. I accept that in the two cases I have mentioned the tribunals would have difficult decisions to make.
If one looks at the ILO's report and at what is done in other countries, it seems to us that this is not an impossible task and that it is necessary to bring our law up to international standards. The committee of experts says that whereas the employer may lawfully treat the employment relationship as at an end without more ado, in English law it accepts:
"This happens only infrequently in practice. But it can happen, and the Committee is aware that there have been a number of situations in recent years where employers have used the fact that their employees were on strike as an excuse for dispensing with the services of their entire workforce, and recruiting a new one".
The committee comments that that cannot be acceptable or consistent with any kind of right to strike. It concludes that Section 62 of the Employment Protection (Consolidation) Act 1978 as amended by Section 9 of the 1982 Act leads the committee to consider:
"that this latter provision does not provide adequate protection for the purposes of the Convention: (i) because it still permits an employer to dismiss an entire workforce, even where the employer has initiated a lock-out or has provoked a strike through entirely unreasonable behaviour"—
the unreasonable behaviour is reflected in one part of our amendment, and—
"(ii) because an employer can re-hire on a discriminatory basis so long as there is a gap of three months between the dismissal of the 'victimised' workers and the re-hiring".
That of course is one of the consequences of the Government's amendments to the relevant legislation in 1982. The committee continues:
"Consequently, the Committee asks the Government"—
this is not just a comment—
"to introduce legislative protection against dismissal, and other forms of discriminatory treatment such as demotion or withdrawal of accrued rights, in connection with strikes and other industrial action so as to give effect to the principles set out above".
The amendment is more limited than the ILO's request in that last sentence. It does not deal with lock-outs. It deals only with dismissal and not with demotions or other disciplines. It does not make dismissal automatically unfair when exercised in retaliation or on provocation of the employer. It asks that two groups of employees should have an elementary right consistent, as the committee shows, with the international convention which has been ratified by this country, which the Government have not shown any signs of wishing to renounce. We all hope that they will never show any signs of wishing to renounce it as the basic international standard of freedom of association. It is true that that would alter aspects of the law as it has been in the past. We are not afraid to review what we have said in the past and find that part of it at least must be reviewed and, if necessary, amended.
There are two approaches to the other aspect of the amendment, ballots. One is to regard them as an expression of a democratic majority by which the minority must abide, at least in major respects, and to which it must owe some obligation. Of course the Government's approach is quite different. In their 1988 Act they have shown that ballots mean nothing as regards the minority if the majority is doing what the Government do not like. The ILO committee has declared this state of affairs to be a breach of freedom of association of the majority members of

865
the union, as well as the other aspects which I have cited.
It would be very unwise for the Government to rely upon these matters not being decided the same way by the Freedom of Association Committee if the issue goes there in the ILO, because the committee of experts is able to rely upon the approach of that committee in the past in reaching its conclusions.
In consequence, I quite expect that the Government will not accept this amendment. It is not in a sense moved in the spirit of wanting them to accept it as it stands. Indeed, when one examines it again, there are drafting problems. But I put it to the Government that this is the way in which international standards move. This is the level below which this country now falls. It is the only country in the Community which falls below that level. The law in Greece has posed problems, but my information is that it does not now fall below the level in the way in which some people said it did. The Government will not be able to continue in the Community with this isolated stance on matters of this sort, even this difficult one where English law leads to the notion that strikers can simply be dismissed en bloc at will. I hope that the Government will show some willingness to re-examine the problem in these two areas of the amendment. I beg to move.
9 p.m.
Lord Strathclyde: I was glad to hear the noble Lord, Lord Wedderburn, say that he did not expect nor even want the Government to accept the amendment. That makes my job slightly easier. Furthermore, the noble Lord spent a certain amount of time talking about the ILO. We have already touched on it so I shall not repeat what I said earlier. He also said that this country was now at the bottom of the international standard regarding employee rights. Does he not agree that if that is so, one of the reasons for it might well be that in the past we have had the most powerful, the most dangerous, the most ugly unions of any European country over the past 20 years? That has led us into the severest economic decline.
Noble Lords: Shame!
Lord Strathclyde: It is only since that has been overcome that this country has begun to perform efficiently economically. The proposed new clause, if accepted, would create a gross imbalance in the law by significantly restricting employers' ability to dismiss or refuse—
Lord McCarthy: Will the noble Lord give us a single piece of evidence for the astonishing things that he said? He said we had one of the worst, most dangerous trade union movements in the world. What scrap of evidence will he adduce for this at five past nine? I know—nothing.
Lord Strathclyde: I do not know whether the noble Lord spends any time outside his office or whether he travels up and down the country. I have to admit that when the reign of the noble Lord's unions came
866
to an end in 1979, I was still relatively young. However, I have certainly heard of the disgraceful antics of those unions. How much has changed today in a whole range of industries! The noble Lord was right: at five past nine perhaps we should not be getting into such an argument. However, the principle of what I said stands.
This new clause would create a gross imbalance in the law by significantly restricting employers' ability to dismiss or refuse to re-engage those who choose to take industrial action against them. Section 62 of the 1978 Act, as amended by the Employment Act 1982, provides that individual employees shall have the usual legal protection—through claims to an industrial tribunal—against unfair dismissal in cases where there has been selective dismissal during, or selective re-engagement following, industrial action. If in such a case the dismissal of an employee was found to be unfair, an industrial tribunal has its usual powers to provide a remedy.
At present an industrial tribunal may consider claims of unfair dismissal while taking part in industrial action—or refusal to re-engage following industrial action—only if an employer discriminates between those involved in the industrial action by dismissing, or subsequently offering re-engagement to, some but not others of those involved.
The new clause seeks to provide that a tribunal may, in addition, consider such claims if the complainant had been taking part in industrial action in respect of which there had been a proper union ballot producing a majority in favour of the action, or if the employer had taken on one or more workers to do the complainant's work or similar work during the industrial action. For employees to take industrial action—any sort of industrial action—is a serious matter. Employees who take such action know that they put their jobs at risk.
Provisions in UK law (Section 16 of the Trade Union and Labour Relations Act 1974) specifically prevent a court making any order for the specific performance of a contract, or issuing art injuction to compel an employee to do any work or attend at any place to do any work. This guarantees employees' freedom to take industrial action.
On the other hand, our law in this country has always enabled an employer to take various measures up to and including dismissal against any of his employees who choose to take industrial action. To impose undue restrictions on an employer's ability to dismiss risks leaving him at the mercy of those who are prepared to continue industrial action indefinitely and thereby drive him out of business unless he settles the dispute on their terms. The new clause would impose just such restrictions and thereby create a gross imbalance in our industrial relations law as it affects the parties to a dispute.
Let me address each element of the new clause in turn. First, there is reference to,
"a ballot … which satisfied Section 10 of the Trade Union Act 1984".
What is the purpose of such a ballot, and what does it require? The relevant law provides that if a union is to retain immunity for organising industrial action

867
which would interfere with contracts it must hold a proper ballot in which a majority of those voting have answered yes to the appropriate question or questions. In requiring the union to hold such a ballot the law ensures that union members can expect to have a vote in a proper secret ballot before being induced to take industrial action by their union.
Such a ballot, and the casting of such a vote, does not oblige any individual to take such action. What is that question or questions that must be put in such a ballot? The question is simply whether the voter is prepared to take part in, or continue with, industrial action—either a strike or some other form of industrial action. The result of such a ballot is therefore completely irrelevant to the merits of the dispute to which it may relate, and should give no special protection to those who may subsequently decide to take or continue with industrial action.
Secondly, a further element in the proposed new Section 62(2)(c) refers to the assessment of whether the employer has acted unreasonably. I am afraid that I cannot see how this really helps matters. The use of a term such as "reasonable" or "unreasonable" in this context is simply too vague to be meaningful. By what criteria is a tribunal to assess such reasonableness?
I believe, therefore, that the inclusion of this part of the new clause is little more than window dressing for the real intention of the Members of the Committee who put down this amendment. That intention is to make it impossible for an employer to dismiss those who take industrial action if that action follows a ballot. As I have already explained, whether there has or has not been a ballot is really quite irrelevant to the merits of the dispute, or to the choice which those taking industrial action have made.
If a claim of unfair dismissal may be heard by a tribunal, the tribunal will consider the claim on its merits. To intrude a new concept of reasonableness, which I presume would be in some way detached from consideration of the fairness or unfairness of dismissal, simply serves to confuse.
Thirdly the proposed new Section 62(2)(d) seeks to constrain an employer's ability to take on workers to do the work which is not being done by those who have chosen to take industrial action, or even to do work substantially similar. It is not difficult to see the stranglehold over the employer that this would give to those taking industrial action. They could place him in an impossible position simply by ending their action and demanding their jobs back—even though those jobs were being done by others who had not behaved so irresponsibly as they had done. Unless he gives way to their demands, the employer would risk being taken to an industrial tribunal and forced to pay out substantial compensation.
Baroness Turner of Camden: Why did the Government take the trouble to introduce a series of pieces of legislation requiring ballots before industrial action, and that such ballots should render unions able to claim immunity, if such ballots did not also give any kind of protection to the employees
868
participating in the strikes? Does not the Minister appreciate that, without a clause of this kind, the employer is free to victimise people who take part in a quite properly convened strike following a quite properly conducted ballot?
Lord Strathclyde: What about victimisation of the employer? I think the noble Baroness misunderstands that the purpose of the ballot for unions was to prove that a sufficient majority within the unions approved of the executive's decision on whether or not there should be strike action.
Baroness Seear: The noble Baroness speaks from a considerable trade union background which might possibly be held to give her a biased view in favour of unions. However, I can only say that I am absolutely appalled—I do not come from a trade union background, although I have belonged to one—to hear what the noble Lord has to say. I have been frightened by some of the Government's trade union legislation although earlier on I backed it. The Minister appears to me to be saying that strikes are an improper action to be taken by trade unionists, even after a ballot. If it is never proper to take strike action, how can there be an appropriate balance of power between the union and the employer? That is what it is all about. Freedom of association, which is a basic freedom, is meaningless unless at the end of the day, if no satisfaction is reached through the negotiating process, members of trade unions or for that matter non-members of trade unions, have the right to withdraw their labour. If they do not have the right to withdraw their labour, the whole thing is a farce. If trade unions can be sacked wholesale because they have taken part in a properly conducted strike, the whole basis of freedom of association and all that it means is torn apart.
Lord Strathclyde: I think that the noble Baroness misunderstands the situation as it exists and always has existed. The law in this country has always enabled an employer to take various measures up to and including dismissal against any of his employees who choose to take industrial action. We are not introducing anything new here.
We have to consider the real world effects of this new clause, by which I mean the likely effect it would have in the context of our country's industrial relations systems and traditions. As such, it would in practice amount to a striker's charter, and completely distort the balance of our industrial relations law, particularly that balance that we have sought so hard to redress over the past 10 years.
9.15 p.m.
Lord Wedderburn of Charlton: Perhaps I should say more about the subject since, as could be seen from the interventions of the noble Baroness, Lady Seear, and my noble friend Lady Turner, the Minister's speech has turned into a major debate. If anything were needed to prove to the International Labour Organisation Freedom of Association Committee that the United Kingdom Government are not only below the international minimum

869
standards on this matter but also insist on remaining there, it was the speech of the Minister. It is a most important document and will be pored over, I am sure.
It is no good saying, in a moving world, "These are the international standards and we think that you are below them". It is no good to say that our law has always been like that. The Minister said that half a dozen times. I appreciate that the Minister said that he had learnt about the horrible events of 1979 and that we could debate those on some other occasion.
Instead of talking about that the Minister ought to look at four other countries: France, where it is elementary that the employer cannot take on temporary workers to substitute for a workforce on strike; Italy, where there are more rights in terms of rights to strike and trade union strength than he or his grandfather ever thought of; Sweden, where unions and management manage the labour market in ways which this country could well look at, with a right to strike well in advance of the minimum standards (and when it comes to training we ought to keep that country in mind too); and Germany, which has a clear right to strike well above the minimum standards, with co-determination with trade union rights—and a great deal of antagonism at times between workforce and employers—and with a structure which is reviewed from time to time to keep it up to date.
It has been at the root of debate upon this subject for many years that some people take the view that amendments like this one cannot be accepted. They seem to believe that there is a peculiar vice in Britain—economic, social, cultural, trade union or industrial—which means that unless we beat trade unions into the ground and insist on remaining below international standards on freedom of association, we cannot survive economically. No wonder our competitors regard us as rather odd. We are very insular. We do not go and look at them. The Minister should.
The basic issue on which the Minister touched briefly, and on which I agree with him, is that this is the only country in Western Europe—and perhaps soon in parts of Eastern Europe (what a contrast between the Government's attitude to Solidarity in Poland and what happens here)—where industrial action is almost automatically a breach of the contract of employment and not a suspension of it. I do not say that the law in the other countries is the same, but in most of them industrial action is a suspension while in this country it is a breach. One day we shall have to face that. If that is what the Minister was concerned about he should take an even longer trip and look at all the other systems as well. I should like to go with him, because it would be rather nice.
That is not what the amendment is about. It represents a tiny step towards the day when we confront that issue. I am proud that my party has confronted that issue in its policy review. People talk about the policy review as though there were nothing important in it. It contains a most important
870
matter in confronting that issue afresh. The Government will not confront it. The Government will not even look at our tiny amendments. The Government appear to be going to bring forward another Bill to make the matter worse, but we shall deal with that issue when we can. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 [Removal of requirement to notify local authority of storage of celluloid film]:
On Question, Whether Clause 19 shall stand part of the Bill?
Lord McCarthy: We now turn from the unsubstantiated and offensive allegations of the Minister about the British trade union movement to the actual small-mindedness of the Government. We turn to Clause 19, which is all about the storage of nitrate film.
In some ways that is a strange matter to find in an Employment Bill. It has nothing to do with employment; even the Government do not say that it has. It has nothing to do with sex discrimination, training, trade unions, and it does not even have anything to do with Sikhs. No reason has ever been advanced for it, even in terms of our old friend the burdens on business.
In itself the clause is a modest one. It is a modest clause because it removes a very modest item. As the Committee will know, under the present position, as a result of the 1922 Act, if one keeps inflammable nitrate stock one is supposed to tell the local authority and to pay the sum of £2 in order to register it. There is a great deal of old nitrate stock hanging around. It is not used any longer and has not been produced since 1952. We know where most of it is. It is in the National Film Theatre, the Imperial War Museum, the London Transport Museum, the Yorkshire Film Archive and so on.
At the moment, if one sells such stock or if it is disposed of, the buyer who buys that stock, if he knows about the law, is under the obligation to inform the local authority, who inform the local fire brigade that some of that 189 million feet of explosive stuff which is lying about somewhere belongs to him.
We are told that the older it gets the more dangerous it gets, and in fact it is becoming increasingly flammable. Some of it is virtually a candidate for spontaneous combustion. The present law says that if you have it or buy it or know of it you should write to the local authority, register it and pay the sum of £2. Goodness gracious me! Why not? It has been there since 1922. In all, conscience, it is an insignificant enough issue.
We are not proposing to the Committee at twenty past nine that there should be a Royal Commission to go into this matter. We do not suggest that the Health and Safety Executive should be alerted. We simply ask why the Government cannot leave it alone. On what possible explanation can they base their position? How conceivably could it be a burden on business? Which civil servant had to list 17 ways

871
of deregulating the economy and only got to 16, so that before he went out to lunch he had to find another one? What on earth are the Government talking about? Why cannot they take this away and forget it?
Lord Strathclyde: I have to say I was a little surprised when I saw that the noble Lord would speak against this clause. The plain answer to his question, "Why get rid of it after all these years?" is that it is simply to remove an outdated requirement from the statute book. Raw celluloid which contains cellulose nitrate is not now commonly used in industrial processes. It was used in the manufacture of cinematograph film, but this of course is no longer the case. The film which is manufactured today is of the non-hazardous cellulose acetate type, and action is being taken to copy archive material onto this type of film. Therefore, the present requirement to register is regarded as redundant.
About 90 per cent. of the old film in the country is in the National Film Archive and the Imperial War Museum. The National Film Archive was granted an exemption from the requirements in Section 1(1) of the Celluloid and Cinematographic Film Act 1922 by the Health and Safety Executive under Regulation 2 of that Act and its exemption regulations of 1980. Very few other premises, because of the small quantity of nitrate film stored in them, come within the scope of the 1922 Act. I think it is worth emphasising that we are not proposing to repeal the 1922 Act but only the redundant requirement to notify. There will thus be no diminution of existing standards of storage. These will continue to apply, as will obligations under the Health and Safety at Work, etc. Act 1974.
Maybe the noble Lord is right. Perhaps we should not tidy up the statute book as we go along and perhaps we should leave old statutes to lie around as long as possible; but I do not believe it is out of place. This Bill is concerned with getting rid of much unnecessary legislation in the field of operation of the Health and Safety Commission and it is sensible to take advantage of this opportunity to tidy up the law in this way. I very much hope that the Committee will approve this clause.
Lord McCarthy: I am glad that the noble Lord has explained to the Committee why the Government have not given any explanation. It is because there is not one. He says that this measure is outdated. He does not know whether it is outdated. He means that there has not been a fire lately. He does not know whether there has not been a fire lately because of the regulations. He has absolutely no idea. He does not care, anyway. He is going round the treadmill. He is on automatic pilot again. There are 16 regulations to be abolished before lunch time. That is what this is all about.
Lord Dormand of Easington: I support my noble friend in what he has just said. Perhaps I may remind him that he is a member of the Parliamentary Labour Party Films Group. I wonder whether he has remembered that.
872
The noble Lord has not given an explanation to the Committee as to why this course is being taken except as a means of tidying up. Those are his words: it is to tidy up the legislation. Some of us believe that it is not simply tidying up. There is something of value here. I rise to my feet simply to remind the noble Lord of the old newsreels—both Pathé and Gaumont British—which are now stored at Elstree. Some of us visited the storage unit about six months ago. Television is now using those old newsreels more than ever in programmes, or to illustrate news which happens to be current. I believe that I heard the Minister state that one of the reasons is that the films could be transferred to new film which would not be capable of causing a fire.
When we visited the old newsreels store at Elstree I asked the director of the film library why it did not do that. He looked at me as though I were a simpleton, which I am on some things, and simply said, "There is so much film here"—there was millions of feet—"that it is too expensive". I hope that the Minister will accept that fact. Members on the other side of the Chamber are always talking about market forces. The director said, "We should love to do that, but we cannot." In those circumstances is it not part of the nation's heritage? We are a filmgoing nation. The Minister may shake his head. It happens to be one of my minor interests. The cinemas are now getting to the stage at which they used to be when I visited them two or three times a week.
Lord Strathclyde: Yes.
Lord Dormand of Easington: The Minister agrees with that. There are millions of feet of early film which are part of the heritage of the country and which ought to have protection. The silly reason given is that this is about tidying up legislation. The Minister ought to consider the matter again.
Lord Strathclyde: I am amazed by the interest that has been taken in this subject. I know that it is important. I had no idea that the noble Lord had such a great interest in films. Nor did I realise that the noble Lord, Lord McCarthy, had played a part in films in the past, as I understood someone to mention.
Celluloid is not now used to make films. It has not been used since 1952. The very few permanent stores which exist are known to the HSE, which is satisfied with the standards of safety provided. Because of its chemical nature, celluloid film eventually becomes completely useless as a visual record. Therefore images on the old stock continue to be transferred to safer, non-inflammable acetate films, which are more durable, and the old film is destroyed. Perhaps there is a confusion here. Perhaps the old film is not being kept but that what the noble Lord, Lord Dormand, is seeing is new film carrying old images.
The registration requirement does not achieve any particular health and safety purpose, therefore. The Health and Safety Commission has said that it is content for it to be removed. Yesterday we spent a great deal of time discussing whether we ought to

873
accept recommendations from the Health and Safety Commission. We are accepting this recommendation. But noble Lords opposite are complaining.
Lord McCarthy: It is not whether the noble Lord agrees with the Health and Safety Commission; it is when it agrees with him. I see the position.
Clause 19 agreed to.
Clause 20 [Dissolution of Training Commission]:
9.30 p.m.
Lord Strathclyde Lord Strathclyde moved Amendment No. 42:
Page 15, line 1, leave out subsection (2) and insert—
("(2) Subject to subsection (2A), all the property, rights and liabilities to which the Training Commission was entitled or subject immediately before that date shall on that date become property, rights and liabilities of the Secretary of State for Employment.
(2A) Any liability in respect of pensions, superannuation allowances or gratuities which, but for the passing of this Act, would have arisen or existed on or after that date as a liability of the Training Commission to or in respect of the chairman or any former chairman of the Commission shall instead be a liability of the Paymaster General.").
The noble Lord said: We now come to the part of the Bill for which I know many Members of the Committee have been waiting. It is the list of amendments on the Training Commission and later the amendments on the industrial training boards.
In moving Amendment No. 42, I should like to speak also to Amendments Nos. 43, 47 to 54 en bloc, 62 and 69. The long list of amendments derives from a single simple primary purpose: to transfer land currently held by the Training Commission to the Secretary of State for Employment on the dissolution of the commission.
As noble Lords will be aware, most of the civil estate is held by the Secretary of State for the Environment through the Property Services Agency. This group of amendments in no way affects the general principles underlying these arrangements. They are simply consequential upon the dissolution of the Training Commission.
The commission has always had power to hold title to both freehold and leasehold land and buildings, which it has exercised, in particular, in respect of significant proportions of the skills training agency sites and of the Jobcentre network. These mainly specialised buildings have never formed part of the civil estate managed through PSA. When the commission is dissolved, this property must be transferred to a new owner, and pending decisions about its destination, the Bill was drafted to provide for a Minister to be designated by the Secretary of State to hold the land title.
Direct land holding powers within the department will provide more direct accountability and responsibility for the Secretary of State and facilitate greater operational and administrative efficiency. For these reasons we have concluded that the title to commission land should be held by the Secretary of State for Employment.
To enable him to hold land the Secretary of State must first be constituted a corporation sole, and that is the effect of the main amendment in this group, Amendment No. 49. The other amendments simplify the current drafting, which had to differentiate between property going to the Secretary of State and land going to the designated Minister. The amendments provide that everything, with all the associated rights and liabilities, will transfer to the Secretary of State for Employment. There is only one exception, which relates to pensions, superannuation allowances and gratuities due to the chairman and former chairmen of the commission. The second half of Amendment No. 42 and Amendment No. 53 ensure that payment for these will be the responsibility, as usual, of the Paymaster General, while administration of the pensions remains with the Secretary of State.
Finally, I should draw the Committee's attention to Amendment No. 69, which extends the incorporation of the Secretary of State's office to Northern Ireland. I beg to move.
Baroness Turner of Camden: As the Minister rightly said, this commences the series of amendments to which we took some exception yesterday when we protested that the amendments went far beyond what we thought was proper for a Bill of this kind and should really form the basis of an entirely separate industrial training Bill. That is still our position, although tonight we do not intend to oppose the amendments in the Lobbies. Nevertheless, I should like to take the opportunity to raise a few questions with the Minister and to make a few comments.
First, as regards Amendment No. 42 there is reference to steps to be taken to protect liabilities to the chairman or to any former chairmen of the commission. What steps are being taken to protect the rights, contracts and so on and the superannuation rights of members of the Training Commissions's staff, who presumably will be transferred under the new arrangements? I believe that the reference somewhere in the amendments to the transfer of undertakings' regulations will give some cover as regards employment contracts, but I am not aware that those transfer regulations relate to pensions. I should be grateful if the Minister would let us know what is intended there.
Secondly, when the amendments were first published we were puzzled about what was meant by corporate status. The Minister has explained that it is to enable land, property and so on to be transferred. We had a suspicion, which I voiced at the time, that it might perhaps be a basis for attempting at some future time to spin off the training arm into a private company. I should like to know more about the Government's intentions.
I should also like to make a few comments which may possibly be more appropriate in the debate on clause stand part. However, in passing I should say that the Opposition do not feel that it was necessary to do away with the Training Commission. We believe that it has performed a useful function and would have continued to perform a useful function had it been permitted by the Government to do so.

875
Over the years it has been involved in a number of extremely useful projects. It had a tripartite nature. It had the support of all sections of industry and commerce and there seems no reason to have terminated it in the arbitrary and abrupt fashion adopted by the Government.
The commission had widespread support. It was engaged on a number of important projects including some for women with which I was personally associated and which were important. It did not have the support from the Government that it should have had. We on this side of the Committee feel strongly that the Government's actions will not assist training in this country and may well have a reverse effect. It is with great regret that we observe the Government persisting with their attitude towards training. They are doing so in this half-hearted and half-baked way through a series of amendments which should have formed the basis of a separate Bill. That would have enabled both Houses of Parliament to have a proper debate on training and properly scrutinise the Government's intentions in this important field.
Baroness Seear: I fully realise that there is little we can effect at this stage because once again we are being presented with a fait accompli. I wish to put on record my great disapproval of the way in which training is being and has been handled for more than a year. The Manpower Services Commission was set up by an Act of Parliament and it was abolished overnight while Parliament was in recess. Therefore, there was no debate, proper or improper, about its work or its successor body. That was a year ago. The way in which it was torn apart was disgraceful. I know as a fact that the change was made in such a way that the commission's staff heard about it on the five o'clock news because the people to whom they reported had had no time to tell them what was to happen.
Furthermore, it is an insult to Parliament when a body as important as the Manpower Services Commission, dealing with training and set up with great care by a Conservative Government, is abolished overnight thereby providing it with no opportunity to influence its successor body. Now the Training Commission is being abolished, and without proper discussion and opportunity to contribute we are given what I agree is a half-baked substitute. We are handing over training to people who in the past have shown that they do not take training seriously. Training in this country was never needed more than now in order to make up for our never having done anything about it in the past. This is a disgraceful performance.
Lord Dormand of Easington: I rise to ask the Minister for clarification. In moving the amendments he appeared to say that their contents would in no way change the principle or organisation of the Training Commission. Did the Minister say that? If so, will the whole of the employment training scheme be affected?
Lord Strathclyde: I do not know what I said that may have given the noble Lord that impression.
876
The Training Commission will be dissolved. We are talking only about the transfer of land to the Secretary of State, who will look after it. The noble Lord and I may have misunderstood each other. If so, I shall write to him and explain exactly what I said.
Lord McCarthy: We may be talking only about the transfer of land in respect of these amendments. However, the Minister has tabled a vast number of further amendments which are even more complicated. There are Amendments Nos. 47 and 48; they go on for pages. In relation to those, is the Minister talking only about land? Will he tell us what he is talking about when he reaches the point; or will he rise and say that he has already done so? Are we to have an explanation of the rest of the amendments, and will it be about land?
Lord Strathclyde: In my opening remarks I said that I was speaking to all the amendments in the group. They are Amendments Nos. 42, 43, 47 to 54, 62 and 69. As I said, essentially these amendments derive from a single primary purpose; that is, to transfer land currently held by the Training Commission to the Secretary of State for Employment on the dissolution of the commission. There is nothing untoward or underhand about that.
The noble Baroness, Lady Turner, asked some specific questions as regards liabilities and about the civil servants who have worked for the commission. Because other members of the commission have never qualified for a pension, the chairman's pension and the past chairman's pension are covered by the provisions. Of course, the staff remain civil servants and continue to be covered by the usual Civil Service pension arrangements as well as other terms and conditions of employment.
Perhaps I could continue on the plans to sell land. I am aware that the noble Baroness was worried that land could be turned into separate companies and sold off. Within the Department of Employment there are a number of important initiatives under way including the sale of the Skills Training Agency. That is all public knowledge. The provisions which we are instituting today will help the efficient completion of that project by reducing the number of parties involved when the Skills Training Agency comes to receive parcels of land.
As to the general attitude towards training which both the noble Baroness, Lady Turner, and the noble Baroness, Lady Seear, mentioned, I think there is a temptation to believe that everything done in the past towards training was good and effective. I am not sure that that is entirely so. We have to look ahead, in view of the demographic changes we have already talked about, to see what can genuinely be done to help training in this country. The proposals which we have put forward, including the training agency and the new initiatives which are coming about, are a genuine step forward to help not only young people to become better trained but also to help people throughout their careers. I hope that that answers the general points.
Baroness Seear: It does not. The Minister has made an assertion. He says that things will be better but has not given a single reason why that should be. We need an analysis and information as to why there will be an improvement. The Government Front Bench are constantly doing this. They stand up and make assertions and hardly ever produce any factual evidence to support them.
Lord Strathclyde: We believe, and I think the noble Baroness will agree, that training in the past has not been as effective as it might have been. We are trying something new. We believe that industry should be more responsible for training because industry knows more about what kind of training is required and therefore will be in a better position to control the sort of training provided.
Baroness Seear: The noble Lord really cannot get away with this. There has been nothing to stop industry doing that for the past half century. It has not done so. That being so, what evidence is there—and we are asking for evidence—that it will now do something different?
Lord Strathclyde: Perhaps the noble Baroness has missed the fact that we are setting up the TECs organisations which are proving so successful. The whole focus on employment training and YTS are very genuine commitments to training for the future. The noble Baroness asks why industry has failed apparently to train people in the past. When we reach the next group of amendments on the industrial training boards, we shall no doubt be told by the noble Lord, Lord McCarthy, why they have been so successful. Perhaps at that stage I shall be able to demonstrate rather more as to what is at the back of the Government's mind.
9.45 p.m.
Lord Dormand of Easington: We do not need to wait for anyone else because there has been a recent internal review. I have an article from the Guardian as recently as 14th October which states:
"The £1.45 billion Employment Training scheme faces considerable problems and has been launched 'in haste and uncertainty,' according to the first internal review".
I presume the Minister knows about that.
The article continues:
"The report, commissioned by the Training Agency, reveals many people have left the scheme early because they are frustrated at the way it has been operating in its first year.
"The review … suggests the quality of the managers and agents running the scheme for the Training Agency leaves much to be desired. There was no adequate information on why people left the scheme and the reasons given by those in charge of ET 'showed a poor understanding of the seemingly legitimate concerns of the client group whom they serve' ".
The report gets worse as it goes on. I said that was in the Guardian of 14th October. In the Guardian of 16th October it is apparent that someone has been taking notice because an article begins:
"A review of the Government's £1.45 billion Employment Training Programme has been launched by ministers after its poor record in its first year".
878
The Government themselves are saying that.
Finally, the Minister correctly said that the new principle involved with training is with industry itself, and that is the case. Industrial training in the past has had its successes and its failures with government schemes, some supported by the Labour Party. There is no doubt that under the new scheme proposed by the present Government, and which they are implementing, some of the schemes will be successful. I cite the engineering industry. There is no question but that the scheme will be a good one. I also believe that the building trade scheme will be successful. However, I put this direct question to the Minister. There will be some sectors of industry which will simply not provide a training scheme. That is a fact of life. Will the Minister say what is to be done about training in those sectors?
Lord Strathclyde: I shall first speak about employment training. ET is the largest and fastest growing adult training programme ever launched in this country. It aims to provide a flexible package of high-quality training for longer-term unemployed people which is locally planned and delivered to help them obtain and keeps jobs.
Nearly 450,000 people have started training on ET since the programme began and 208,000 people are currently training under ET. The article cited by the noble Lord included a comment about the report which was commissioned by an area office to provide local feedback to help operate ET mere efficiently and effectively. It was undertaken in February and March this year when ET was only six months old and 42 trainees, three training agents and five training managers were interviewed. The research identified a number of early teething troubles where there was a need for, first, better communications; secondly, better understanding of clients' needs; and thirdly, better systems. In the intervening months those have been addressed and eliminated. Drop-out from the training programme, although unfortunate, is much less than in previous training programmes.
I know that the Opposition is obliged to pick holes in whatever this Government do and to view employment training with a great deal of suspicion. However, this is a genuine commitment to getting longer-term unemployed people back to work by offering them effective training.
The noble Lord, Lord Dormand of Easington, made a point that sectors of industry would not provide training. I am not as pessimistic as the noble Lord. I do not believe that in the highly competitive labour market of the 1990s any sectors of industry in this country will be able to afford to ignore their obligations to their employees in respect of training. As I said earlier, that goes for young people right through their careers, when training will have to be provided for them.
Lord Dormand of Easington: I ask the Minister to refer to an answer that I was given on the same point just before the Summer Recess. I regret I do not have the date to hand. His noble friend sitting beside him, who now has responsibility for Northern Ireland, will no doubt recall and confirm what I am about to say. He said then that he thought that was

879
a reasonable view for me to take and he would investigate it. I believe the present Minister is bound to say that that is more than likely to happen. I hope he will take the matter seriously.
On Question, amendment agreed to.
Lord Strathclyde Lord Strathclyde moved Amendment No. 43:
Page 15, line 17, leave out subsection (5) and insert—
("(5) References in this Act to property, rights and liabilities of the Training Commission are references to all such property, rights and liabilities, whether or not capable of being transferred or assigned by the Commission.").
On Question, amendment agreed to.
On Question, Whether Clause 20, as amended, shall stand part of the Bill?
Baroness Turner of Camden: I do not want to repeat what I have already said as regards the preceding amendments, but we are given the opportunity of saying again that we are totally opposed to what the Government are doing regarding the Training Commission. I repeat that in our view there is little evidence that training will be any better handled under the arrangements that the Government are proposing rather than under the Training Commission.
On the contrary, it is my view that, despite the criticisms that have been levelled at it and at what has happened in the past, the commission has endeavoured to raise the standard of training in this country and has had some success in that regard. It has had to oversee some government schemes that have been far from adequate. ET has been quoted by my noble friend. In my view, it is being increasingly seen as a means of providing employers with cheap labour rather than providing high quality training.
The reason for the dissolution would appear to be no more than the Government's ideological opposition to anything tripartite. The Training Commission actually had trade union representatives on it as well as employers. The trade union representatives attempted to play a very full part in the work of the commission. I was a member of the TUC General Council at a time when the representatives of the council used to make regular reports back to the general council itself and attempted to involve the whole trade union movement in support for what the Training Commission was endeavouring to do.
Apparently tripartism is not acceptable to the Government. When there was a decision at the 1988 Trades Union Congress against some of the government schemes (although that decision was quickly reversed) that was made the excuse for closing down the commission and for taking into the hands of the Secretary of State all arrangements for future industry training. The decision had scarcely been made before the Minister's honourable friend made the public announcement that the commission was to be no more.
We have already said what we feel about the amendments. We repeat that we are very much in favour of a widespread effort in the training field.
880
We know just how necessary that is from the standpoint of both industry and potential trainees themselves. We are particularly anxious that there should be suitable programmes for certain disadvantaged groups, for women and for women returners to industry. In that respect, and to my own knowledge, the Training Commission, in association with the EOC's WISE campaign—"Women into Science and Engineering"—was beginning to make some real progress.
We have grave doubts whether that progress will continue to be made under the arrangements now to be handled entirely in-house by the Secretary of State. For those reasons, it is our view that the clause should not stand part of this Bill.
Lord Strathclyde: This clause is an important one which provides for the dissolution of the Training Commission. As the Committee knows, the commission was established by statute under the Employment and Training Act 1973 and therefore can only be dissolved by primary legislation. Let me remind the Committee of the reasons why we are having to go through the process of dissolution and the very sorry and unhappy role that the TUC played in bringing it about.
It is just over a year now since the TUC decided to oppose the employment training programme. The programme was to be run by the Training Commission, and the commissioners, among them three commissioners nominated by the TUC, were to be responsible for ensuring its successful operation. Indeed—and what has not been said by the noble Baroness—the TUC commissioners, along with the others, had designed and agreed the programme. But when the TUC decided on its boycott it was clearly not possible for commissioners committed to opposing ET to sit on the body responsible for running that programme. The Secretary of State's concern was to safeguard the operation of the programme and he took immediate steps to remove the TUC's responsibility for a programme it was committed to oppose. That he was right to do so was demonstrated again only this weekend with three unions' irresponsible call on local authorities to withdraw from ET.
However, most of that is in the past; it is more than a year ago. We should leave the TUC and its negative attitudes and its failure to consider the country's long-term training needs. Let us look instead at the positive action the Government have taken and will be taking in ensuring that we have an adequately trained workforce. The Government have created a climate in which training and enterprise are flourishing. A survey in 1984 showed 1,806,000 people in training during the relevant four-week period. In the same period in 1988 the same survey showed 2,776,000 people being trained. The investment employers make in training is significant—£18 billion in 1986–87. But that is never enough and we need to do more.
Employers have the demand for skills. They must take the responsibility for training their employees. Training and retraining of those in work is crucial if we are to meet the challenges of the 1990s: eight out of 10 of the workforce in the year 2000 are

881
already in work. The message that training is as important an investment as new plant or machinery is now widely understood.
The Government are playing their part in improving our training performance. In 1979 government spending on training was £458 million. It is now £3 billion. For young people, YTS has become the accepted route into employment. Currently 411,000 are in training. Seventy-nine per cent. of YTS leavers go straight into a job, further education or training; and 63 per cent of those completing two years' YTS get a vocational qualification. For adult long-term unemployed people, employment training is the largest and fastest growing adult training programme ever introduced in this country. Introduced in September 1988, it has already helped train nearly 450,000 people to acquire new skills which will help them to rejoin the ever growing numbers of employed people.
But our most radical and important reform is the creation of a network of local training and enterprise councils which will plan and deliver training and enterprise development locally—tailoring our programmes to meet local needs. The needs of Gateshead are not the same as the needs of Reading. The Government recognise this and are devolving the decision-making on training to local level where practical solutions are best developed. The Government also recognise that employers are the main customers for training and the main providers of training. Training and enterprise councils will give business leaders for the first time the chance to lead our nation's training effort. Business leaders are
882
responding very well to this challenging opportunity. Already 28 TECs have been approved to receive development funding and plans for a further 50 or so are well-advanced.
Now let me remind the Committee briefly of the steps which have already been taken to transfer the Training Commission's functions, and the remaining steps by which this clause, together with Schedules 4 and 5, complete the process. In September last year, using his powers under the Employment Act 1988, the Secretary of State took back all the functions the commission had been exercising on his behalf—such as ET, YTS and TVEI—and transferred them to a new executive agency within the employment department group. This left the commission with only the few tasks assigned to it by statute to carry out. principally those concerned with the establishment, operation and winding up of industrial training boards. Later in this debate the Committee will be asked to consider new clauses specifically dealing with ITBs. In the meanwhile, Clause 20 gives effect to the amendments to the Industrial Training Act 1982 set out in Schedule 4 to the Act which transfers to the Secretary of State the functions of the commission under the 1982 Act. This will help ensure the continuity of ITB business.
The clause is a necessary and important step in setting up the new framework for training suited to today's and tommorrow's needs. I commend it to the Committee.
Clause 20, as amended, agreed to.
10 p.m.
Lord McCarthy Lord McCarthy moved Amendment No. 44:
After Clause 20, insert the following new clause:
("Duty owed to trainees and employees.
.—(1) This section applies to

(a) persons to whom section 26 of the Employment Act 1988 applies but who are not employees ("trainees"), and

(b) to any other person employed under a contract of service or of apprenticeship ("employees")

(2) The duty prescribed by this section shall be owed

(a) to a trainee by the person making or obliged to make payments within the meaning of section 26 of that Act, or

(b) to an employee by the employer.

(3) The duty prescribed by this section is a duty to ensure that reasonable opportunities are available for suitable training for the trainee or, as the case may be, for the employee, having regard to the work.
(4) In this section "the work" means either

(a) activities carried on under the arrangements made for the trainee to use the facilities, or

(b) the work which the employee is employed to do.

(5) Where a trainee or employee claims that the duty prescribed by this section has been broken, he may present a complaint to an industrial tribunal and where the tribunal finds that the complaint is well-founded, it shall make a declaration to that effect and may award compensation to the complainant of such amount as it decides is just and equitable.
(6) If an employee is dismissed and one ground for the dismissal is alleged by the employee to relate to breach of the duty under this section, the tribunal shall treat the dismissal as unfair and it shall be for the employer to show that he has not broken that duty.
(7) In determining whether training is suitable the tribunal shall take account in particular of the opportunities afforded for the trainee or the employee to attend courses of instruction or education, to acquire new skills or to improve his or her knowledge of the technology or methods relevant to the work.
(8) The tribunal may, in any case in which it sees fit, require a member of a panel of experts to prepare a report with respect to the question whether opportunities are suitable within the meaning of this section.").
The noble Lord said: During the course of his defence of Clause 20, the Minister said several things which I tried to write down. I may have got them wrong, but I understood him to say at one stage that there was an obligation—I shall come back to the nature of that obligation—to provide training for their employees throughout their careers. That is the way in which I noted it down. The Minister subsequently said that employers must have a responsibility to their employees for their training throughout their careers, or words to that effect.
The Government's problem is that, having rejected the route of tripartism and having decided that they do not want to take the route of the levy—they raise the money from industry and then distribute it to those who do the training—they are in effect left with no mechanism through which to carry out the training policies which, to be fair to them, they know that the country needs.
That is where we come to the Government's aid. The amendment provides the mechanism that they require. It does not involve any trade union or institution per se, nor does it involve the Government in the spending of any money. That is just as well because we know that, although, as the Minister said, the Government are now spending £3 billion on training, the Secretary of State has said that a large part of that sum—the part that is spent
884
on ET—is there because of the present high level of unemployment. Unless the Minister gets up—and if he does so, he will not be a Minister for very long—and says, "Don't worry. It will be £4 billion and £5 billion because unemployment will rise again", the Government are committed to phasing down expenditure on training as unemployment falls. So they have done away with the institutions and with any tripartite system and they do not want a levy. The greater part of the public subvention of training at the moment is related to the level of unemployment.
The Government must therefore come before us, as the Minister has done tonight, and rely upon the employer. As the noble Baroness said—and as, to my knowledge, she has been saying for at least 10 years—all the evidence suggests that, when one asks the employer to do that, he falls flat on his face. He has never done it before in sufficient volume and there is no indication that he would do it in sufficient volume in the future if we did not need an increase in training. But the Government know and do not deny that we need a substantial increase in training. We may need at least two-thirds as much training as we have now—I am not talking about the quality; we should feel the width—if we are to come anywhere near the level of training of our major European competitors.
We must therefore have some form of lever. In the clause we suggest an individualistic lever. One could not get more individualistic than this. This is micro-individualistic, right down to the individual worker. We suggest and this is the guts of the amendment—that there should be a right for trainees and individual workers (we want to bring everyone into this) to receive training, and a duty on their employers to provide it. The key part of the amendment is that which states:
"a duty to ensure that reasonable opportunities are available for suitable training for the trainee or, as the case may be, for the employee".
The amendment is intended to be very comprehensive in terms of its coverage. It is intended to cover all employees and trainees covered by Section 28 of the Employment Act 1988; namely, all those on recognised schemes.
Unfortunately, those who specialise in criticising the minutiae of our amendments do not happen to be here this evening. It is always possible to say that the minutiae of amendments are wrong. It is always possible to say that we are wrong or that they could think of something better to motivate the sanctions—to put them, as it were, through industrial tribunals. We say that industrial tribunals should consider complaints from individuals—no collectivities because the Government do not like collectivities—and they should appoint experts to prepare a report on the training provided; in other words, we are taking a course which has been suggested by the Government. Similar action is taken in the area of sex discrimination and of fair treatment.
Those individuals should seek to enforce their rights through industrial tribunals, and the tribunals

885
should consider the complaint. The argument in favour of that suggestion is that without some such impetus it is difficult to see how the country's training will compare favourably in volume and quality with that of our major competitors.
The recognition of the need for training is now reaching out to the majority of our population, as it does in Germany and in Sweden, where they have similar schemes. We know that we need increased training for the young, for those who are declared redundant, for those who need retraining and further retraining, for women and for the long-term unemployed. We know that we need improvements in the volume of training in some key industries, occupations and groups. We know that the congenital desire, as the noble Baroness so frequently reminds us, of the British employer to poach rather than to train has somehow to be set aside. If it is not to be done by a levy, or some system of tripartism, we suggest an alternative way in which it might be done.
There exist at the moment a set of institutions which the Government still have. Unfortunately, to judge by what the Minister has said this evening, they are thinking of privatising them (selling them all), but until they have all gone, the Government at least have a set of institutions. What they do not have is any kind of motivating force, anything to push people through the training process. That is what we suggest in the amendment. The Government may say that it is wrong in detail. We say that, whether it is right or wrong in detail, it is the right way forward and the only way forward for a government who have closed every other door. I beg to move.
Baroness Seear: Before the Minister tells us that employers will look after all this in their own enlightened self interest, I should like to ask him one or two questions. He has said that YTS is now the great recognised challenge for people going into employment and that it provides an excellent training. I was closely associated with YTS until the Minister arbitrarily abolished all the boards connected with it. Not that that matters; there are many other jobs to do.
We all knew then, and if the Minister knows anything about YTS he must know it too, that there was some extremely good YTS but there was some inferior YTS. What is perhaps more important even than that now, is that with rising employment opportunities for youngsters, a great many school leavers do not go through YTS; they obtain jobs directly, jobs which they still misguidedly call "real" jobs. The belief in training has not penetrated into their heads, their parents' heads or in many cases their school teachers' heads, and the fact that they can obtain rather more money in a job which is not in YTS has been the most enormous inducement not to go into YTS. That is what has been happening.
Some months ago, I asked the noble Viscount, Lord Davidson, who has just left the Committee, what proportion of those youngsters who went
886
directly into employment rather than YTS were having day-time release. The answer was 5 per cent. That being so, I should be glad if the Minister could update the figure and tell us what is happening. It is a very important question: what is happening to the youngsters who do not go into the YTS? It is easy for them to avoid it now. I assure the Minister that a great many of them want to avoid it and are avoiding it. If employers are now so training-minded, we shall find that a great many of those youngsters are being given day-time release. If that is not now happening and if the figure which the noble Viscount, Lord Davidson, gave me months ago is still approximately the same, surely that is good evidence that not only the youngsters, their parents and their teachers, but also employers, are not convinced of the importance of training.
Lord Strathclyde: Perhaps I may respond briefly to the noble Baroness. I do not have at hand the information as to whether or not the figure of five per cent. on day release has changed. I am not at all convinced that the pure example of whether or not there is day release shows that there is effective or ineffective training in the private sector for young people. I am not sure that the noble Baroness has proved that it is not effective.
Perhaps I may turn to the amendment which we are discussing. It strikes me as a strange amendment. Not only is it radical, very novel and totally new; it also seems to go against current Labour Party policy as described in the policy review, Meet the Challenge, Make the Change. The noble Lord says "Excellent". That may well be.
Lord McCarthy: I did not say that.
Lord Strathclyde: It also seems to go,against the TUC retraining document, Skills 2000. That is a problem for the noble Lord and his party and not mine. I assume that the intention of this amendment is to increase the amount of appropriate training undertaken in this country. If so, I welcome and applaud the principle but have grave doubts as to its application.
We do not believe that compulsion is the answer. Employers are most likely to benefit from securing an adequate supply of skilled workers. They are also best placed to identify and meet emerging skill needs. This is why we have invited employer-led groups to set up TECs, to plan and deliver training at a local level.
Any regulation which sought to increase the volume of training investment, without taking account of these crucial factors, would be likely to result in training for its own sake with the consequent likelihood of increased employment costs and wasted investment. I have shown how much major investment the Government are making in training. I believe that this amendment would not further the cause of training.
Baroness Seear: I did not answer the noble Lord when he challenged me over day-time release. Of course I do not believe that day-time release is the be-all and end-all of training. It is not. Those of us who have been deeply involved in training in one way and another—and I rather wonder how involved the Minister has been in training—know that what we need is complementary training of a practical kind with some kind of day-time release in many cases, but not in all cases.
Because changes take place so fast in industry and people have to learn and be able to learn and learn again, there is a great deal that they need to know. The YTS experience, sadly, was that many of the youngsters who came from school were quite unprepared to cope with the demands which industry would make on them. They needed additional training outside.
Of course that training should be closely related to the training that goes on inside the place of work. But good training at the industrial level is not as common as I believe the Minister optimistically thinks. Some absolutely first-class training is going on but it is not just a matter of "sitting next to Nelly" and being told by someone what to do. It is a great deal more than that. A vast number of the smaller firms are incapable of giving that kind of training. They need outside assistance.
Finally I wish to ask the Minister this. With the new schemes that have been set up, what system of evaluation do the Government have to find out whether the schemes are working? Will we be told what system the Government have? How is this to be done? What will happen in a year's time? We are all deeply concerned about the development of training. We want to know how it will be checked and monitored, and that that process will be effective. What scheme has been set up for such monitoring?
10.15 p.m.
Lord Dormand of Easington: A propos those remarks, will the Minister say what training is to be given to the trainers? The point that the noble Baroness made is absolutely crucial. We can talk in broad terms about training, but the man in the training centre or on the shop floor, or wherever it is, has to be good at training. It is not just a question of being a craftsman; he has to know how to teach. He must be able to get the message over. That is absolutely crucial. Will the Minister say whether the Government will introduce training for trainers?
Lord Strathclyde: First, I shall respond to the noble Baroness. The framework that the Government are working under was introduced by the White Paper of last year. I am sure that the noble Baroness has read that. The essential framework has three levels at which to work: the local level, which involves the training and enterprise programmes; the industrial level, which involves standards and quality monitoring; and the national level which involves developing policies for priority. That is a multi-faceted approach to training as a whole. There is no desire for this Government to allow training
888
to be forgotten. I hope that that case is virtually proved by the number of new initiatives that are being and have been introduced by the Government, and by the amount of money that has been spent.
As to qualitative assessment of how training works, the department is responsible for spending Government money. I, as a Minister, am responsible to Parliament for finding out how that money is being spent. There are continual studies made on how money is being spent and how effective that money is. It would be quite wrong if that were not the case. We must know how our policies are working and whether or not they are succeeding in their original intentions. That process will continue.
The noble Lord, Lord Dormand of Easington, asked a question about the training of trainers. I have to say that the training of trainers is already a feature of training agency activity. Again that activity is continually looked at, and where it is found to be failing it will be improved.
Lord McCarthy: The noble Lord has had a long and exhausting time at the Dispatch Box. He has taken on the Committee stage of the Bill single-handedly and, quite understandably, he is tiring. Even his advisers are tiring. At this time of night to come up with such a reply is not very good. The Minister referred to three levels. The TUC will not like them, but leave me with the TUC. The staff on the Walworth Road site will not like them, but leave me with them. The TUC and the staff on the Walworth Road site are extremely flexible these days, and they will adopt something quite similar. In any case it is not much of an argument to come from this Government. The TUC will not like it, the Walworth Road staff will not like it and, God Almighty, it is 10 minutes past ten o'clock! The Government can do better than that, but they do not do so. When they have exhausted that new line, they go back to the old one. The Government say that the matter should be left to employers. It is not a matter of asking the leopard to change its spots, but rather a matter of asking it to change its skin.
All the tests in terms of volume, level, comprehensiveness and the key groups which need to be trained, show that British employers will not train. If they would do so, we would not be where we are. We would not be trying year after year to find new ways to tackle training. All that the Government can find to say is that the TUC and the staff at the Walworth Road site may not like the idea, but we must leave the matter to the employers. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 4 [Dissolution of Training Commission: amendments of the Industrial Training Act 1982]
Lord Strathclyde Lord Strathclyde moved Amendment No. 45:
Page 24, line 1, leave out sub-paragraph (3).
The noble Lord said: The purpose of the amendments that we have tabled to the Industrial Training Act is to enable us to carry forward our policy on the development of sector-based training organisations. The White Paper Employment for the 1990s set out the Government's views on the need

889
for a radical reform of the present training system. A new framework is needed if we are to address the challenges posed by increasing technological change, greater international competition and demographic change in our workforce.
I remind the Committee that in paragraph 4.8 the White Paper set out six key principles for successfully establishing that framework. They were, first, that training and vocational education must be designed to help business success and economic growth. Secondly, employers and individuals need to accept more responsibility for training, including the cost, with the Government's role being to set the framework and provide funds for training unemployed people.
Thirdly, the qualifications being obtained through training must embody recognised, nationally validated standards of competence that are relevant to employment, drawn up by industry-led organisations and covering every sector or occupational group. Fourthly, the training must provide young people and adults with the opportunity to secure qualifications based on those standards. Fifthly, responsibility for delivering training must be devolved to local areas and bring together private and public investment. Sixthly, enterprises, individuals and local communities must be able to influence the shape of local training.
That new framework will operate at three levels—national, industry and local. The amendments that we have tabled concern the industry level and involve the majority of the six principles that I have outlined. The main task of industry level training organisations is to identify and set standards for training, to ensure that those standards are recognised nationally, and to monitor the quality of employers' own training efforts.
We believe that the key to success lies in generating and maintaining commitment by employers themselves on a voluntary basis. Our objective is to see standards-setting bodies established by employers with widespread support from within the industries concerned. We do not believe that industrial training boards, based as they are on statutory regulation, have raised or indeed can raise sufficiently the standard and quality of training provided by employers themselves, particularly for their own employees.
We therefore ask the seven remaining boards, which between them cover 20 per cent. of the British workforce, to bring forward proposals to develop independent, voluntary training organisations with strong employer support which will not rise to a statutory level. Our objective is that so far as possible those will replace the statutory boards.
The Secretary of State has been considering those proposals carefully and will shortly make an announcement on the future arrangements in the sectors presently covered by statutory ITBs. The objective of the amendments is to make it easier to move from the present position of statutory boards to the employer-led voluntary organisations envisaged in the White Paper. We want to enable
890
the transfer of those existing board functions that the successor bodies wish to continue to take place with the minimum loss of momentum.
We have therefore proposed new powers for the board's assets to be transferred and have extended the protection available to board employees involved in a transfer. We also propose changes to the consultation requirements on orders affecting the scope of ITBs and changes to the composition of boards to create the employer leadership that we believe is necessary to ease the transformation of boards to employer-led voluntary arrangements.
The changes proposed will also enable any boards which we decide should remain in being in the longer term to address more effectively the improvements in current performance that we all desire.
There are three new clauses and a number of minor consequential amendments to take forward our policy on industrial training boards. The first clause deals with the requirements on the Secretary of State to consult before making orders affecting the scope of ITBs. At present he has to consult relevant trade unions and employer associations. We believe that in future employers should be the only group with a statutory right to be consulted, although others can be consulted if the Secretary of State judges it appropriate. The clause will create a consultation process which reflects the proper balance of interests in establishing effective employer-led training arrangements.
The second new clause enables the key activities of ITBs to be continued without disruption during the transition of boards to non-statutory status. It provides that, where a board is to be wound up or its coverage reduced, it can, with the Secretary of State's agreement, pass on assets to a successor free or at less than market value to be used for charitable purposes connected with training for employment.
The position of staff involved in such a transfer will be safeguarded by extending the application of the Transfer of Undertakings (Protection of Employment) Regulations to them. Their existing terms and conditions of employment will thus be preserved. The general purpose of the clause is to smooth the transition from statutorily based ITBs to a voluntary approach which the Government believe offers the best prospect of better and more cost effective training arrangements. Both the firms and the industries affected and the staff of the ITBs involved will benefit from the change to voluntary status being achieved with minimum disruption.
The third new clause changes the balance of interest represented on ITBs to create clear employer leadership. This will enable the move from statutory ITBs to employer-led voluntary successor arrangements to take place more smoothly. Boards can be reconstituted to reflect more closely their eventual non-statutory composition prior to being wound up.
If the Government decide that it is appropriate to retain statutory boards in any sectors, this amendment would also ensure that they would be employer-led. This amendment will thus give ITBs the employer leadership that we believe is necessary to improve their effectiveness.
Under the terms of the clause the Secretary of State will in future be required to undertake consultation only with employer organisations before making appointments to ITBs. The majority of board members will have to be employers or managers within the relevant industry. He will be free to appoint others to membership of the board as appropriate and I am sure that he will use that power to ensure that the most important interests are represented within the context of clear employer leadership. The overall effect of these changes will be to help create the basis for improved effectiveness in sector-based training arrangements. I commend these amendments to the Committee. I beg to move.
Baroness Turner of Camden: As the Minister said, this series of amendments covers the Government's intentions in relation to industry training boards. The Minister said when he presented them to the Chamber that a new framework was needed. I believe that he was quoting from the original White Paper. If so, is this the framework? If it is, it seems to me that it needs to be greatly fleshed out. Since we have not had a great deal of time to consider these amendments, we on these Benches intend to reserve our position on them and come back on Report.
In the meantime, there are one or two questions that I should like to put to the Minister and one or two comments to make. First of all, with regard to existing industry training boards, both the CITB and the EITB are in touch with me. They seem to me to have played a constructive and useful role in the past. What exactly is to be their position in the future?
I must say to the Minister that my information is that the staff at the CITB are particularly worried about the amendments. They approached me today and asked whether I would be good enough to send them a copy of the amendments. They were very worried about what was entailed in them. It looks as though there has not been very much consultation with the staff of those bodies before these amendments came before this Chamber.
Secondly, what happens to the statutory role which I believe not just the unions but also employers think should exist in construction? I gather that the EITB is concerned about its engineering construction role and believes that there should be some kind of statutory role in relation to construction. That is also the view of the CITB. The Minister has dealt briefly with the intentions of the Government in relation to the staff of those bodies by referring to the reference to the Transfer of Undertakings Regulations of 1981. As I said in my previous contribution, those regulations give some protection in relation to contracts of employment but no protection at all as regards pensions, which are not covered by the regulations. I should be interested to know what kind of protection the staff can expect in that regard.
As regards the existing projects of the two ITBs to which I referred, and the EITB in particular, as I said earlier the EITB has undertaken a number of special projects and in particular a special project about women. I was involved in one of these project
892
earlier in the year and was very impressed with what was being done. I talked to a seminar of women aged between 18 and 50 on the EITB project. None had previously been involved in engineering. Some were aiming to come back into the workforce after a break. One woman to whom I spoke was over 50 and recovering from a broken marriage. She said that the opportunity offered to acquire skilled training in this regard was giving her an entirely new lease of life. The visit was quite a moving experience. One would like those projects to continue.
I should like to know whether the successor bodies will have the finance and general resources available to continue with the very valuable work. The assets of the EITB will be transferred to the successor bodies. But what happens after those assets have been exhausted? Where will the resources come from to continue with these projects?
Finally, I understand that the EITB made some proposals to the Government in June. When can it expect to hear from the Government in relation to those proposals? Was that covered by the statement of the Minister when, presenting these amendments to the Committee, he said that the Government were shortly due to make clear their intentions in regard to the future of existing bodies?
With those few remarks, I do not intend tonight to oppose the amendments from these Benches. However, I give notice that we shall expect to have the opportunity of scrutinising them in more detail at Report stage. These are very complicated amendments. We have had very little time to examine them. Until the Minister spoke we had not had the opportunity of hearing the Government's intentions. For those reasons, we may want to put down some detailed amendments at the next stage.
Lord Strathclyde: In moving Amendment No. 45, I should have said that I was speaking also to Amendments Nos. 46, 55 to 58, 61, 63, 65, 67, 68 and 70.
I generally welcome the words of the noble Baroness. I understand exactly what she is saying: that she has not had time to read what I have said and to consider the comments that I made in what I know was quite a lengthy introductory speech. I shall welcome the chance to discuss some of these issues again when we reach Report stage.
Pehaps I may make a general comment about the future of the ITBs because I know that this is a matter about which many Members of the Committee are concerned. I made the point in my speech—and I shall do so again—that the Secretary of State has been considering very carefully a variety of proposals. He will shortly be making an announcement on future arrangements in the sector presently covered by the statutory ITBs. It would be wrong of me to try to pre-empt that decision now. I hope that the noble Baroness and Members of the Committee opposite respect that view and see that the amendments are enabling amendments to carry forward our policy on the development of sector-based training organisations as laid out in the employment White Paper.
On Question, amendment agreed to.
10.30 p.m.
Lord Strathclyde Lord Strathclyde moved Amendment No. 46:
Page 24, line 11, at end insert—
("( ) In subsection (7), for "section 3(2)" substitute "section 3(1)(b)".").
On Question, amendment agreed to.
Schedule 4, as amended, agreed to.
Schedule 5 [Dissolution of Training Commission; supplementary provisions.]:
Lord Strathclyde Lord Strathclyde moved Amendments Nos. 47 to 54:
Page 26, line 36, leave out ("and").
Page 26, line 37, at end insert ("; and
"the relevant Minister" (subject to paragraph 4(3) of this Schedule) means—

(a) in relation to any function of the Commission, the Secretary of State; and

(b) in relation to any property, right or liability of the Commission, the Secretary of State for Employment.").

Page 26, line 37, at end insert—
("Incorporation of Secretary of State for Employment
1A.—(1) The person who on the date on which this Act is passed is Secretary of State for Employment and his successors shall be, by that name, a corporation sole, with a corporate seal.
(2) The corporate seal of the Secretary of State for Employment shall be authenticated by the signature of a Secretary of State or of a Secretary to the Department of Employment, or by a person authorised by a Secretary of State to act for the purpose.
(3) The corporate seal of the Secretary of State for Employment shall be officially and judicially noticed, and every document purporting to be an instrument made or issued by the Secretary of State for Employment and to be sealed with that seal authenticated in the manner provided by sub-paragraph (2), or to be signed or executed by a Secretary to the Department of Employment, or a person authorised as mentioned in that sub-paragraph, shall be received in evidence and be deemed to be so made or issued without further proof, unless the contrary is shown.
(4) A certificate signed by the Secretary of State for Employment that any instrument purporting to be made or issued by him was so made or issued shall be conclusive evidence of that fact.
(5) Any document made or issued at any time before the date on which this Act is passed—

(a) by the Secretary of State for Employment (whether as such or as the Secretary of State for Employment and Productivity), or

(b) by the Minister of Labour in connection with matters which, on that date, fall within the responsibilities of the Secretary of State for Employment,

shall, if effective immediately before that date, have effect as from that date as if it had been made or issued by the Secretary of State for Employment as a corporation sole; and where the document was sealed or signed as mentioned in section 11(2) of the New Ministries and Secretaries Act 1916 (as in force at the time of the sealing or signing of the document) it shall have effect as from that date as if it had been sealed or (as the case may be) signed as mentioned in sub-paragraph (3) above.
(6) Accordingly any document to which section 11(2) of that Act applied immediately before that date shall be treated for the purposes of sub-paragraph (3) above as if it were a document purporting to be such an instrument as is mentioned in that sub-paragraph; and the repeal by this Act of section 11(3) of that Act shall not affect the validity of any certificate issued before that date in pursuance of that provision.").
Page 26, line 42, leave out ("Secretary of State") and insert ("relevant Minister").
Page 26, line 45, leave out ("Secretary of State") and insert ("relevant Minister").
Page 27, leave out lines 26 to 32.
Page 27, leave out lines 33 to 37 and insert—
("4.—(1) The power of the Secretary of State to make determinations under paragraph 6 of Schedule 1 to the Employment and Training Act 1973 shall, notwithstanding the repeal by this Act of that paragraph, continue to be exercisable by him in relation to preserved pensions.
(2) Any function which immediately before the date on which this Act is passed was a function of the Commission in relation to preserved pensions (other than its function of making payments in respect of such pensions) shall on t lat date become a function of the Secretary of State.
(3) References to the relevant Minister in paragraphs 2 and 3 of this Schedule shall, in the application of those paragraphs in relation to—

(a) the Commission's function of making payments in respect of preserved pensions, or

(b) any liability in respect of such pensions which is transferred by section 20(2A) of this Act,

be construed as references to the Paymaster General.
(4) In this paragraph "preserved pensions" means pensions, superannuation allowances or gratuities in respect of which liabilities are transferred to the Paymaster General by section 20(2A) of this Act.").
Page 27, leave out lines 38 to 41.
On Question, amendments agreed to.
Schedule 5, as amended, agreed to.
Lord Strathclyde Lord Strathclyde moved Amendments Nos. 55 and 56:
Before Clause 21, insert the following new clause:
("Consultation in connection with industrial training orders.
. In section 1 of the Industrial Training Act 1982 (establishment of industrial training boards), the following subsection shall be substituted for subsections (4) and (5)—
"(4) Before making an industrial training order the Secretary of State shall consult—

(a) such organisations or associations of organisations appearing to him to be representative of substantial numbers of employers, and such bodies established for the purpose of carrying on under national ownership any industry or part of an industry or undertaking, as he thinks fit; and

(b) such other organisations, associations or bodies (if any) as he thinks fit." ").

Insert the following new clause:
("Transfer of assets or staff of industrial training boards. 1982 c. 10.
.—(1) The following sections shall be inserted after section 3 of the Industrial Training Act 1982—
"Transfer of assets on revocation or amendment of industrial training order.
3A.—(1) Where an order has been made under section 1 above which—

(a) revokes an industrial training order, or

(b) amends such an order so as to exclude from the scope of operation of an industrial training board some of the activities in relation to which it exercises functions,

the board concerned—

(i) may with the consent of the Secretary of State, or

(ii) shall if he so directs,

transfer all or any of its assets to any person on trust to be used for charitable purposes which are related to or connected with training for employment.
(2) A transfer under subsection (1) above may be made for a consideration which is less than the market value of the assets transferred or for no consideration; and different assets may be transferred by a board under that subsection to different persons.
(3) It is hereby declared that a transfer under subsection (1) above may be made in a case where an industrial training order is revoked even if the assets of the board concerned are (or will be after the transfer) insufficient to meet its liabilities and the expenses of the winding up of the board in pursuance of section 4(1) below.
(4) Subject to subsection (5) below, the provisions of section 15(5) to (9) below shall apply in relation to any direction given by the Secretary of State under subsection (1) above as they apply in relation to any direction given by him under section 15(1) or (2) below.
(5) Where any such direction is given in a case where an industrial training order is revoked, those provisions shall so apply with the omission from section 15(6) below of the words from "during such period" onwards.
Transfer of staff employed by boards.
3B.—(1) If arrangements are made (whether in connection with a transfer of assets under section 3A(1) above or otherwise) for any activities of an industrial training board to be carried on by some other person ("the transferee") as from a particular date, this section shall have effect in relation to any employee of the board who, immediately before that date, was employed wholly or mainly in connection with those activities.
(2) The Transfer of Undertakings (Protection of Employment) Regulations 1981 shall apply in relation to any such employee of the board in accordance with subsection (3) below.
(3) For the purposes of the application of those Regulations in relation to any such employee, the activities referred to in subsection (1) above shall (whether or not they would otherwise be so regarded) be regarded—

(a) as constituting an undertaking within the meaning of those Regulations which is transferred from the board to the transferee on the date referred to in that subsection, and

(b) as being so transferred by a transfer to which those Regulations apply and which is completed on that date.

(4) A certificate issued by an industrial training board, in connection with any such arrangements as are referred to in subsection (1) above, to the effect that a person was, immediately before the date referred to in that subsection, employed by the board wholly or mainly in connection with the activities to which the arrangements relate shall be conclusive evidence of the facts stated in the certificate."
(2) In section 4(2) of the Industrial Training Act 1982 (winding up of industrial training boards), the following provisions shall be substituted for paragraph (b)—
"(b) for any assets of the board which are not required to meet those liabilities and expenses to be transferred to the Secretary of State and for those assets to be applied for purposes specified in the order.
Any reference in this subsection to the assets of the board is a reference to the assets (if any) held by it after the making of any transfer or transfers under section 3A(l) above." ").
On Question, amendments agreed to.
Lord Strathclyde Lord Strathclyde moved Amendment No. 57:
Before Clause 21, insert the following new clause:
("Constitution of industrial training boards.
.—(1) In Schedule 1 to the Industrial Training Act 1982 (constitution etc. of industrial training boards), the following paragraph shall be substituted for paragraph 3—
"3.—(1) An industrial training board shall consist of—

(a) a chairman and, if the Secretary of State thinks fit, a deputy chairman, each of whom shall be a person appearing to the Secretary of State to have industrial or commercial experience;

(b) such number of persons appointed after the appropriate consultation as the Secretary of State thinks fit; and

(c) such other persons (if any) whom it appears to the Secretary of State to be appropriate to appoint in addition to those appointed by virtue of paragraph (b) above.

(2) A person appointed by virtue of sub-paragraph (1)(b) above shall at the time of his appointment be a person appearing to the Secretary of State to be concerned (whether as a director, manager or sole proprietor or otherwise) in the management of the activities, or any of the activities, of an employer engaging in the industry; and the reference in that provision to the appropriate consultation is a reference to consultation with such organisations, or associations of organisations, representative of employers engaging in the industry as appear to the Secretary of State to be appropriate.
(3) The Secretary of State shall not make any appointment by virtue of sub-paragraph (1)(c) above if to do so would result in the number of persons for the time being appointed by virtue of that provision being equal to, or greater than, the number of persons for the time being appointed by virtue of sub-paragraph (1)(b) above.
(4) References in the following provisions of this Schedule to a chairman include a deputy chairman."
(2) Subject to subsection (4) below, the Secretary of State may reconstitute the membership of an industrial training board as from any time after the passing of this Act—

(a) by terminating such of the appointments of its existing members as would otherwise expire after that time, and

(b) by making fresh appointments to it, as from that time, in accordance with the provisions substituted by subsection (1) above.

(3) The termination of a person's appointment to an industrial training board in accordance with paragraph (a) of subsection (2) above shall not preclude him from being re-appointed to the board in pursuance of paragraph (b) of that subsection.
(4) The power conferred on the Secretary of State by subsection (2) above shall not be exercisable in relation to an industrial training board if all of its members were appointed to it in accordance with the provisions substituted by subsection (1) above (whether they were so appointed in pursuance of subsection (2)(b) above or otherwise).").
Baroness Turner of Camden Baroness Turner of Camden moved, as an amendment to Amendment No. 57, Amendment No. 58:
Line 19, in the proposed new paragraph 3, at end of sub-paragraph (2) insert—
("(2A) The Secretary of State shall consult with those organisations which appear to him to be representative of the employees in the industry concerned and shall seek from them nominations of suitable persons to serve on the Board, the final decision on appointment to be left with the Secretary of State.").
The noble Baroness said: The reason for the amendment is fairly clear. The Minister has given plenty of evidence during the course of the debate that the Government are not keen on the tripartite nature of much of our industrial training arrangements to date. He has said some rather unkind things about trade unions' attitude to training. I have an opportunity now to refute some of what he said. He said that the TUC's attitude has been negative. That really is not the case. The trade union movement in my experience—I was a trade union official for a large number of years—has always been very keen on training. The opposition from the TUC General Council arose only when it believed that some of the Government schemes were not proper schemes at all, or were not what we regarded as quality schemes, and could lead to the exploitation, particularly of young people, by employers who would see those schemes as an opportunity to use young people as cheap labour.
It was the quality of the schemes, rather than opposition to training as a whole, which led the unions to take the view that they did. They have

897
always been in favour of a tripartite approach. Until relatively recently, previous governments have been in favour of a tripartite approach because the original industry training Act, under which the industrial training boards were established, was introduced in 1965 under a Conservative administration. We see no reason why that tripartite philosophy should be departed from.
Amendment No. 58, as an amendment to the Government Amendment No. 57, provides that the Secretary of State should consult organisations which appear to him to be representative of employers in the industry concerned and should seek from them nominations of suitable persons to serve on the board, but the final decision on appointment would, of course, be left with the Secretary of State. That seems to us to be entirely reasonable. We do not see how any scheme of industrial training can possibly succeed unless there is involvement of representatives of the workforce. That is especially important at work place level. It is important for the people who are asked to co-operate at work place level with training schemes to understand that their unions are involved at a higher level and that their unions are committed to the schemes. Where that has happened I know from my own experience that there has been support at work place level for schemes that have been introduced.
Certainly during my period as a union official, my own unions supported YTS where it was felt that they were genuine schemes which would genuinely lead to proper training and work opportunities for young people. We have never adopted a negative attitude. Indeed it does a disservice to all preceding generations of both employers and trade unionists to give the impression that that has been the case in the past. That has never been the case and it is wrong for the Government to attempt to lay at the doors of the tripartite philosophy and system the past failures of training in this country. That is not the right place to lay blame. It can more easily, effectively and rightly be laid at the door of many managements which have not been prepared to take training seriously or to participate effectively in training operations. I beg to move.
Lord Strathclyde: I apologise for the mix-up over which amendment we had reached. It was entirely my fault. Our approach to sector-based training organisations is to encourage, where possible, the creation of voluntary employer-led bodies to attract the commitment of senior management within the relevant sectors. The government amendment is designed to assist in this process by providing for employer-led statutory boards either as a step towards employer-led voluntary arrangements or, if we decide that it is appropriate, any continuing statutory boards.
As I noted in moving the new clause we would expect boards to contain representatives of all those interested in securing adequate training arrangements—and, in particular, industries—and the Secretary of State will be free to consult and appoint as he considers appropriate. We do not believe that it will assist the task of attracting greater
898
employer commitment to sector-based training to impose further obligations on the Secretary of State as regards consultation and membership of the ITBs. However, we recognise the interests of employees and their representatives in the matter.
I hope that in the light of that explanation the noble Baroness will withdraw her amendment.
Baroness Seear: The Minister must realise that there is an age-long tradition of trade union involvement in training. The trade unions have taken an active part. Sometimes they have been obstructive; I do not agree entirely with the noble Baroness, Lady Turner. Not all unions in all areas have been favourable. But many have. Good training cannot be carried out inside an organisation unless there is active support from employees.
This is a modest little amendment. It does not ask for any powers for the representatives of labour; simply that they should be consulted. The Minister's hatred of trade unions has appeared this evening. Surely he is not so doctrinaire in his refusal to understand that in any enterprise it is essential to have the backing of the workforce for anything of this kind. The knowledge that representatives have given their support filters down. Otherwise rumours and stories develop and there will be antagonism towards new kinds of training. By refusing this simple little amendment the Minister is making it unnecessarily difficult to get new training under way. It asks simply for consultation and not for powers.
Lord Strathclyde: I do not hate trade unions. I think that there is a time and a place for everything and that trade unions provide a valuable service at the right time and in the right place. However, this is not it. I understand exactly why the noble Baroness speaks about trade unions in such glowing terms and I know that she really believes it. However, we have already tried with trade unions and it has not worked. They have not always proved themselves to be entirely responsible.
The noble Baroness said that this is a minor amendment. It is so minor that it is almost unnecessary. We have said that the Secretary of State will consult and I believe that that is good enough.
Lord Rochester: Paragraph 3(1)(c) of the new clause in Amendment No. 57 states:
"An industrial training board shall consist of such other persons (if any) whom it appears to the Secretary of State to be appropriate to appoint in addition to those appointed by virtue of paragraph (b) above".
Can the Minister assure us that people who are professional trainers will be considered as possible members of such boards?
Lord Strathclyde: We are generally looking at that sort of proposal in a positive way.
10.45 p.m.
Baroness Turner of Camden: The Committee will not be surprised to know that I do not find the Minister's response to this amendment satisfactory. As the noble Baroness, Lady Seear, said, this is an

899
extremely modest amendment. I drafted it thinking that perhaps it was so modest it might commend itself to the Government because it says:
"shall consult with those organisations which appear to him to be representative of the employees in the industry".
That gives the Secretary of State a great deal of latitude as to the organisations which he considers suitable and which he will approach. Of course, the final decision on appointment is left with the Secretary of State.
I really do not understand how this amendment can be opposed except by a government who are quite oblivious to the views of the workforce and in opposition to any views which might be voiced by trade unions or organisations representative of the staff and employees concerned.
I believe that this is a quite incredible response to a very modest suggestion. Although I shall not press the amendment at this hour of the night, I believe that we shall have to think about this matter again. As the noble Baroness, Lady Seear, said, the involvement of the workforce and its willing participation and co-operation as regards training at workplace level is terribly important. If the organisations representative of the workforce are being deliberately excluded by the Government, it is quite likely that the schemes will not effectively get off the ground no matter what the Government may tell us about them. I shall withdraw the amendment but we really must look at this matter.
Amendment No. 58, as an amendment to Amendment No. 57, by leave, withdrawn.
On Question, Amendment No. 57 agreed to.
Clause 21 agreed to.
Clause 22 [Power to make corresponding provision for Northern Ireland]:
Lord Strathclyde Lord Strathclyde moved Amendment No. 59:
Page 16, line 36, leave out ("10") and insert ("6, 7(1), 8 to 10, (:Exemption of Sikhs from requirement to wear safety helmets on construction sites)").
The noble Lord said: I shall speak also to Amendment Nos. 60 and 64. The amendments in this group are purely technical or consequential on other amendments, making some minor changes to parts of the Bill which relate to Northern Ireland. Amendment No. 59 is intended mainly to ensure that the new exemption we are giving turban-wearing Sikhs from forthcoming requirements to wear head protection on construction sites can be implemented swiftly in Northern Ireland on a par with Great Britain. Similar requirements on safety helmets are to be introduced in Northern Ireland, and it is desirable in principle to provide a similar exemption for turban-wearing Sikhs.
I understand that at present there are believed to be relatively few Sikhs in the construction industry in Northern Ireland, but of course this may change, and in any event it does not seem to be a point on which a geographical distinction should be made. The amendment therefore enables corresponding provisions to be made for Northern Ireland in the quickest and most convenient way.
Amendment No. 60 corrects a technical error in the definition of Northern Ireland subordinate legislation; and Amendment No. 64 removes a potential ambiguity in Schedule 7 (Repeals) which might have led people to misinterpret the Northern Ireland legal position. I reiterate that these amendments raise no new issues of principle and I commend them to the Committee. I beg to move.
On Question, amendment agreed to.
Lord Strathclyde Lord Strathclyde moved Amendment No. 60:
Page 16, line 46, leave out from ("any") to end of line and insert ("statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 made under such an Order as is mentioned in paragraph (a).
On Question, amendment agreed to.
Clause 22, as amended, agreed to.
Clauses 23 and 24 agreed to.
Schedule 6 [Minor and consequential amendments]
Lord Strathclyde Lord Strathclyde moved Amendment No. 61:
Page 33, line 41, at end insert—
("INDUSTRIAL TRAINING ACT 1982 (C.10)
28A. In paragraph 6 of Schedule 1 (persons entitled to vote in connection with a levy), for the words from "sub-paragraph (a)" to "that sub-paragraph" substitute "sub-paragraph (1)(b) of paragraph 3 above".").
On Question, amendment, agreed to.
Schedule 6, as amended, agreed to.
Schedule 7 [Repeals]:
Lord Strathclyde Lord Strathclyde moved Amendments Nos. 62, 63 and 64:
Page 34, line 5, at end insert—

("1916 c. 68.

New Ministries and Secretaries Act 1916.

The whole Act.").

Page 36, line 25, column 3, at end insert—

("Section 29(1) so far as relating to the Industrial Training Act 1982.").

Page 39, line 7, column 3, leave out ("subsection (5)") and insert (", in subsection (5), the words from "except for the purpose" onwards.").
On Question, amendments agreed to.
Schedule 7, as amended, agreed to.
Schedule 8 agreed to.
Schedule 9 [Transitional provisions and savings]:
The Deputy Chairman of Committees (Baroness Lockwood): Before calling Amendment No. 65 I must draw attention to the incorrect wording of paragraph (1) which should read:
("Appointments to industrial training boards
.—(1) The amendments by this Act of paragraph 3 and 6 of Schedule 1 to the Industrial Training Act 1982 shall not apply to an industrial training board during any period during which any member of the board appointed before the passing of this Act remains in office by virtue of that appointment.
Lord Strathclyde Lord Strathclyde moved Amendment No. 65:
Page 41, line 39, at end insert—
("Appointments to industrial training boards
.—(1) The amendments by this Act of paragraph 3 and 6 of Schedule 1 to the Industrial Training Act 1982 shall not apply to an industrial training board during any period during which any member of the board appointed before the passing of this Act remains in office by virtue of that appointment.
(2) Sub-paragraph (1) above shall not be taken as precluding the Secretary of State during any such period from making appointments to the board in accordance with that Schedule as amended by this Act where they are to take effect at any time after the end of that period.").
On Question, amendment agreed to.
Schedule 9, as amended, agreed to.
Clause 25 [Short title, commencement and extent]:
Lord Strathclyde Lord Strathclyde moved Amendments Nos. 66 to 69:
Page 18, line 5, at end insert—
("( ) section (Exemption of Sikhs from requirement to wear safety helmets on constructions sites) and (Protection of Sikhs from racial discrimination in connection with wearing of safety helmets);")
Page 18, line 6, at end insert—
("( ) sections (Consultation in connection with industrial training orders), (Transfer of assets or staff of industrial training boards) and (Consultation of industrial training boards);")
Page 18, line 10, leave out (", 27 and 28") and insert ("and 27 to 28A")
Page 18, line 43, at end insert—
("( ) pararaph 1A of Schedule 5 and section 20(4) so far as relating thereto;").
On Question, amendments agreed to.
Clause 25, as amended, agreed to.
In the Title:
Lord Strathclyde Lord Strathclyde moved Amendment No. 70:
Line 11, after ("Commission;") insert ("to make further provision with respect to industrial training boards;").
On Question, amendment agreed to.
Title, as amended, agreed to.
House resumed: Bill reported with amendments.

Tyne and Wear Passenger Transport Bill
Returned from the Commons with the amendments agreed to.
House adjourned at four minutes before eleven o'clock.