HL Deb 31 October 1989 vol 512 cc185-202

6.12 p.m.

Lord Campbell of Alloway

My Lords, I beg to move that this Bill be now read a second time.

The prime objective of the Bill is to remedy an unforeseen and unintended injustice on trades unions which arises under Part II of the Trade Union Act 1984. This part of the Act is concerned with secret ballots before industrial action. This unforeseen injustice has now become manifest in the light of the case between the port employers and the Transport and General Workers Union; an injustice which inevitably will arise again whenever the legality of proposed industrial action sanctioned by ballot is called in question in legal proceedings.

In seeking to inform myself, I had a word this morning with the Master of the Rolls. The noble and learned Lord informed me that, in his view, a substantial number of cases which would be affected by the provisions of the Bill is to be expected. This is not just a one-off job to deal with the proceedings that arose over the dock labour scheme. That is his view.

The injustice arises because Section 10(3) of the 1984 Act imposes a mandatory period of four weeks within which, after ballot, the industrial action must be authorised by the trade union if it is to qualify for such statutory immunity as is afforded. If the legality of that action is challenged after the ballot, in legal proceedings, it is all but inevitable that the difficult and complex questions of fact and law that are involved cannot be resolved judicially within the four-week period without, at all events, imposing an all but intolerable burden upon the judiciary at the expense of other litigants whose cases have to be taken out of the list. If the case should reach the House of Lords there is not the proverbial snowball's chance in a very hot furnace of having the matter resolved within the period.

Furthermore, by the institution of these proceedings the union is hobbled from taking the proposed action by the spectre of contempt and sequestration. In the result, the union which has observed the due process of law is put at a substantial and serious disadvantage in having to hold a further ballot to authorise conduct which has already been adjudged to be lawful and to retain the statutory immunity. Herein lies the simple injustice which the Bill proposes to end—an injustice affecting in all probability only the major industrial disputes where resort is to be had to the courts. However, the view expressed to me by the Master of the Rolls, which I have relayed to your Lordships, surely should be taken into account.

The means of resolution proposed involve no derogation from any principle enshrined in extant trade union law. They are left to the discretion of the court which upholds the legality of the proposed industrial action, be it the court of first instance, the Court of Appeal, or the Appellate Committee of your Lordships' House. In the ordinary way an extension would be granted when judgment is handed down near to or after the expiry of the four-week period to ensure that the proposed industrial action would qualify for immunity without the need for a further ballot.

That extension would not be granted when, by reason of changed circumstances, lapse of time since the ballot or some other compelling reason it was appropriate that another ballot should be held. Here the views of the rank and file trade union membership submitted to the judge or court by counsel would no doubt—and should—be taken into account. The exercise of judicial discretion to grant or refuse an extension would always be subject to the usual appellate process and has the advantage of flexibility. If, for example, it were the wish of government to limit to four weeks the period of the extension proposed by this Bill, so be it. It is simply done by inserting in line 7 after the word "period" the words "not to exceed four weeks". However, your Lordships may well think that there is no need to hamstring judicial discretion and that once the judiciary is seized of the matter the question of extension or no extension is best left within the remit of the judicial process.

I conclude by suggesting to your Lordships that this Bill will not only avoid a manifest injustice to trades unions, but will remove an intolerable burden on the judiciary. It will also ensure that other litigants who have their cases in the lists will not be put to delay, inconvenience and expense as now obtains. Having sought to explain the objective of the Bill and the means of implementation, I hope that it may commend itself to noble Lords on all sides of the House. I beg to move.

Moved, That the Bill be now read a second time.—(Lord Campbell of Alloway.)

6.20 p.m.

Lord Brightman

My Lords, I support this Bill. The ground has been very fully covered by the noble Lord, Lord Campbell of Alloway, and there is little that I can usefully add. I summarise the problem. As the law now stands a trade union which calls its members out on strike in furtherance of a trade dispute affecting that union is protected from an action for damages by the employer provided that the strike has been authorised by a ballot of the members concerned. That protection is lost unless the strike begins within 28 days of the voting.

If the legality of the strike is called into question in judicial proceedings which go to appeal, the legality may not be established within the requisite 28-day period. The trade union is then put to the trouble and expense of a second ballot despite the fact that the first ballot turns out to have been lawful. That is a highly unsatisfactory situation. The Bill would remedy that injustice by giving the court a discretionary power to extend the 28-day period.

I was not privy to the discussions which took place between the noble Lord, Lord Campbell of Alloway, and my noble and learned friend the Master of the Rolls. But I am able to tell your Lordships that in a letter that the learned Master of the Rolls sent me a fortnight ago he authorised me to tell your Lordships—if he could not himself be present tonight—that he supports the principle of the Bill. I respectfully ask your Lordships to give the Bill a Second Reading.

6.23 p.m.

Lord McCarthy

My Lords, I must apologise for the fact that I am unable to stay until the end of the debate. I have told the noble Lord, Lord Campbell, of that, and he has graciously excused me. I wish to begin by thanking him for a short and well-directed Bill to remedy what he rightly calls an unforeseen and unintended injustice. That is precisely what it is.

I wish to focus on two matters. I agree with the noble Lord and also with the noble and learned Lord, the Master of the Rolls,—we are in very distinguished company this evening—that the restrictions on the access of the unions to lawful action are very extensive as a result of the decisions taken in the dockworkers' case. The restrictions are very extensive and do not apply just to this case. That is the first point that I wish to develop.

The second point is one that I do not normally make in this House. It is that the Government are to be completely exonerated from the consequences of what has happened. As the noble Lord said, the consequences were not intended. This matter is a kind of legal time-bomb or a procedural accident. It was certainly outside the intentions of anyone; it was not foreseen by anyone. It was not foreseen by the Opposition when we criticised the Trade Union Act 1984. No one foresaw that this situation would arise.

In order to show the extent of the restrictions one has to retrace some of the ground of the ABP and the TGWU case. The House will remember that on 6th April the Government announced that they were intending to abolish the national dock labour scheme. On 11th April the Transport and General Workers' Union decided that it wished to negotiate a voluntary alternative with the national port employers and, if that could not be done, wished to have a strike ballot to resist the imposition of the dismantling of the national dock labour scheme.

A week later, on 18th April, the employers made it clear to the Transport and General Workers' Union that they refused to entertain a negotiated alternative. And they also refused to guarantee the existing terms and conditions. Therefore, the union felt that it was in no position to do anything else than to move to a lawful ballot and industrial action. Before that ballot could be undertaken, the employers—as they were perfectly entitled to do—served a writ on the union on the basis that the dispute was not a trades dispute.

On 10th or 11th May, when the union was ready and undertook a ballot according to Section 10(3)(c) of the 1984 Act, it was already engaged in litigation over the employers' writ. As we know, the result of the ballot was a substantial majority in favour of the strike. What is important is that the result was declared on 19th May.

From that point on the union believed that it had four weeks—28 days—until 16th June when the immunity ran out. As I have said, the union was already involved in the legal process. There followed a 10-day hearing as a result of which, on 29th May, the union felt that it had been successful in the sense that the application for an injunction was not granted. By this time the union had lost 10 days. There were still 18 days left to start, organise and begin the strike. In that sense that was good news. From its point of view the union could prepare for a lawful strike.

The bad news was that the employers were given leave to appeal, as was perfectly understandable. Therefore, from the union's point of view, there was not a result until 7th June when the Court of Appeal decided to grant the injunction on slightly different grounds. The result was that the union had lost another nine days. But the issue was still barely within the 28 days because there were nine days left.

The problem was that this time the decision went against the union. It had no alternative—if it wanted to have a lawful strike—but to take the case to the next level of jurisdiction; namely, the House of Lords. The House of Lords considered the case and, for it, very speedily. The bad news came on 21st June. At that point the House of Lords decided against the Court of Appeal and did not agree with the latter's decision, stating that it was a perfectly lawful strike which the union had believed all along. From the union's point of view the decision came five days too late.

It might be said that this is a unique, unusual or untypical story. I suggest to the House that it is far from untypical as the Master of the Rolls appears to suggest. It could be followed by many similar cases. Let us suppose that the union had lost at the court of first instance. It would have to go on to the Court of Appeal. If the union had won at the Court of Appeal the chances are that the employers would have sought to go on to the House of Lords. In those circumstances the union would have been out of time anyway and it would have to have held a second ballot. It is even arguable that if the union had won all the way and the Court of Appeal and the House of Lords had in substance agreed with the decision at first instance, it could still have been out of time if in fact an appeal had been granted through to the House of Lords.

We may be told that there is nothing wrong with a second ballot. We may be told that if unions have their members' support they will get an affirmative answer at the second ballot stage. I have several comments about that. Most people involved in industrial relations would say that the effect of setting aside an industrial action is disastrous from the union's point of view. Industrial disputes and circumstances change. Members faced with these hesitations and uncertainties lose heart in the fight. Some may say that that is a good thing but I suggest that that is not what the Government intended.

Moreover, one cannot guarantee that even a second ballot is unassailable. The union might have to have a second ballot—in this case it had a second ballot—and in principle that ballot could be challenged. There might have been an alleged irregularity in the ballot. Something might have happened on the picket lines or something might be alleged to be wrong with the ballot process, which is now a very complicated one. Such is the nature of the degree of proof that has to be shown in the injunction process that it is perfectly possible for an injunction to be quite reasonably granted but for the court to say at the hearing that it was a perfectly lawful act. Nevertheless, the union would be out of time and the second ballot might be set aside. This issue has come out of the woodwork. Nobody expected it and yet it can have far-reaching results.

I turn to my second question. What were the Government trying to do when they introduced the four-week rule? They did not originally intend the four-week rule to operate against the basis of an affirmative ballot. The House will remember that the injection of an affirmative ballot as a prescription for legality came about in this House. It was moved by the Government. The four-week qualification was not necessarily intended to apply. The argument both in another place and in this House at Second Reading was that the Government only wanted to force unions to have ballots. We were told that the unions took decisions to strike without ballots on the basis of decisions by executives or shop floor meetings. They had to be made to engage in a ballot process. Whether they won or lost the ballot would be influential if not coercive. That is the context in which the four-week qualification was first introduced.

However, as the Bill went through the House the Government decided to introduce an affirmative qualification into the ballot. An amendment was moved by the Opposition first in another place and then in this Chamber that the period should not be four but 16 weeks. Mr. Gummer, speaking for the Government, said in Committee in another place: The Government's intention is that the ballot and the strike if there is one should be closely connected. We do not intend that a strike unconnected with the ballot held in different circumstances and long afterwards could be held to be covered by that ballot. That would not be sensible. We start from the assumption that the period between the ballot and the strike if it is to be held should be short". Four weeks was short. But the union was supposed to expect that it would have that time at its disposal.

In another place the Government would not accept the Opposition's amendment and so it was put forward again in this Chamber on 25th June 1984. We sought once again to get the Government to extend the period because we said that from our point of view four weeks was too short. The noble Lord, Lord Gray of Contin, said: The effect of the amendment tabled by the noble Lord, Lord McCarthy, and his noble friends, which is similar to an amendment considered and rejected at Committee stage in another place, would be to allow unions to provide themselves with immunity far in advance of the likely climax of negotiations by holding a ballot at a time when the prospect of industrial action was so far off as to be unreal to the members being asked to vote". I suggest that the House should reflect on that. That was the Government's intention at the time. They wanted to have sufficient time, but not too much time, so that the vote was not unreal to the members. Yet as a result of questions raised in the House, the noble Lord, Lord Gray of Contin, in talking about the four weeks as a reasonably minimum period, went on to say: The Government of course accept that the counting and announcement of ballot results cannot be done in a day, and clearly it would be undesirable to precipitate union strikes because immunity was going to 'run out'. Some time may be needed for further negotiations".—[Official Report, 25/6/84; cols. 723–41.] I suggest that that was a wise remark. Our argument at the time was that the whole period of four weeks was not long enough, that it would precipitate strike action, that the union would discover that it had only four weeks and would not have time to negotiate. Whether or not one accepts that argument, it has much more coercive force if the union is left with less than four weeks—with two weeks, with one week or with eight days. That puts the union in a difficult position, in which it feels forced, as it were, to cash in its immunity from liability. The Government never intended that. Nobody intended that. This affects not just one dispute and it places the judiciary in a difficult and awkward position in which nobody wishes it to be placed. Fortunately it can be remedied. All we have to do is pass the Bill.

6.28 p.m.

Lord Rochester

My Lords, it is a privilege to take part in this debate in company with such distinguished speakers. From these Benches I am delighted to support the Bill which was so ably introduced by the noble Lord, Lord Campbell of Alloway. I hope to help in providing him with the all-party agreement which he said he is seeking in this House.

I was particularly impressed and heartened to learn from the noble and learned Lord, Lord Brightman, that the principle of the Bill has the support of the Master of the Rolls. I have looked back to see what I said at the Second Reading of the Trade Union Bill 1984 in regard to the clause of the Bill which sought to remove from trade unions immunity from legal action if a ballot was held more than four weeks before the beginning of industrial action. I see that, having first endorsed wholeheartedly the principle underlying the relevant part of the Bill, I expressed a fear that the effect of the four-week rule might be that ballots would be held prematurely and that attitudes would thus be struck which would increase the likelihood of industrial action taking place. I added that other practical problems might arise, but I certainly did not foresee what actually occurred prior to the dock strike earlier this year.

Your Lordships may recall that at that time we on these Benches gave the Government our support in their intention to abolish the dock labour scheme, although we thought that rather than introducing the Bill as precipitately as they did the Government should have given other interested parties an opportunity to express their view before arrangements were finalised. At the Second Reading of the Dock Work Bill, however, I felt bound as a Liberal and a Democrat to voice my disquiet about the extent to which, under current legislation, employers were able to obtain injunctions, sometimes ex parte, restraining strike action not covered by trade union immunity. As I saw it, people were thus increasingly being denied the collective right to withdraw their labour within the law.

If my recollection is correct, that was what happened during the period leading up to the dock strike when, prior to the reversal of the initial judgment, it became plain that many registered dock workers in a number of the larger ports were unwilling to await the outcome of what became a protracted legal process before taking unofficial industrial action.

I should like to emphasise that what I have just said should in no way be construed as a criticism of the judiciary. I am suggesting only that the law which it is their duty independently to administer may, in the light of the differing verdicts of the courts to which I have referred, be in need of a more general review than we are able to give it this evening. Your Lordships will see that I still feel some concern on this point, but I readily acknowledge that it raises issues that are distinct from the approach to the overall problem that the noble Lord, Lord Campbell of Alloway, is making in introducing this Bill.

I do not for a moment believe that in legislating as they did in 1984 the Government then foresaw the kind of situation that arose during the recent docks dispute. There the leader of the Transport and General Workers' Union had the good sense and the courage to insist that the actions of his union and its members should remain within the law, even though it meant that a second ballot had to be held before a strike could take place lawfully. In my view, it was unfair and unreasonable that the union's freedom of action was thus impeded and I am glad that the noble Lord, Lord Campbell of Alloway, is seeking through this Bill to remedy the injustice that can be done in such cases.

His Bill will not of course be enacted in the current parliamentary Session, but I sincerely hope that in the legislation we are promised in the forthcoming Session the Government will themselves take the opportunity, with general support, to deal with the matter. On behalf of my noble friends I welcome this Bill.

6.44 p.m.

Lord Renton

My Lords, I too am glad to support my noble friend's Bill. One thing about it which attracts me, apart from the merit of substance of it, is that it gives a discretion to the courts to do what is right, or appears to be right, in circumstances which may vary considerably. We should, I suggest, do this more often instead of trying to cover every hypothetical contingency. We never do that successfully because we nearly always omit some contingencies which actually arise in practice when the Bill comes into operation.

As to the substance of the matter, as has been explained, by enacting in Section 10 of the 1984 Act that authorisation or endorsement of the result of a ballot to strike should be given in four weeks we took too restrictive a view of the matter. It is therefore in the interests of trade union members that we should give the courts the power to make it a longer period.

I am speaking very briefly because, like the noble Lord, Lord McCarthy, I may have to leave before the end of the debate. To my regret, I must leave at seven o'clock.

6.46 p.m.

Lord Carr of Hadley

My Lords, I fear that I have to add a similar rider to my speech, because of an engagement that I made long before I knew that this debate would take place. I hope that I do not have to leave as early as seven o'clock. I may not have to leave before the end, though that is a possibility. I too wish to speak only briefly, but I wish to record most strongly my support for this Bill. I can be brief because the arguments for it have already been made. They do not need repeating or indeed supplementing.

As I said, I wish to record my support strongly, both because of my past experience as a Secretary of State for Employment and before that as a parliamentary secretary in the old Ministry of Labour, and also because of my long-held personal belief in the need for industrial relations in this country to be conducted within a framework of industrial relations law. Both that experience and my belief make me feel very jealous to see that the law in its operations should achieve its truly intended purpose and that it should do so in a way which is fair to the parties involved.

There can be no doubt that in the recent dock dispute it did not achieve its original intended purpose and was not fair to the parties, particularly in that case to the union involved. For that reason the law needs changing and I welcome this Bill very much and warmly thank and congratulate my noble friend Lord Campbell of Alloway for taking the initiative so early in bringing about this change.

Finally, I add a word in support of the flexibility of this proposed Bill. I hope the Government will not only support it but will not wish to take up the option which my noble friend Lord Campbell added towards the end of his speech—that they might insert a particular period. I do not know how many noble Peers remember the short story by Cornelia Otis-Skinner called, "Please Don't Eat the Daisies". If I remember correctly, she left enormous instructions that somebody should look after the child, but one thing she forgot was to say, "Make sure that this child does not eat the daisies"; and of course it did.

When my noble friend Lord Renton was speaking he said a very important thing, as he often does. The more we try to cover every detail in a Bill the more certain it is that we will fail to account for the detail which will arise at some time and we will merely limit the flexibility of government and of the courts in interpreting our actions. So I welcome this measure. I welcome its flexibility and I strongly urge the Government to make sure that in the next Session of Parliament this provision becomes law.

6.50 p.m.

Lord Irvine of Lairg

My Lords, the Bill, coming as it does from a lawyer—one of great experience in this field and other fields—is doubly admirable. It admits the law's delays and tries to alleviate the consequences. To be lawful, industrial action requires the support of a ballot of all the workers likely to be involved. The ballot in favour of action then becomes a ticket of admission to the immunities which industrial action, in contemplation or furtherance of a trade dispute, enjoys. There is no positive right to strike in this country. Since 1906, industrial action has taken place under the protection of immunities. Without those immunities, strike action would be unlawful because it would involve the commission of civil wrongs (torts) such as inducing breaches of contracts of employment or interference with the performance of an employer's commercial contracts by unlawful means.

Industrial action, in contemplation or furtherance of a trade dispute, is made immune from such liability. But, since the Trade Union Act 1984, a ballot in favour of the action has been a necessary ticket of admission to the immunity. Without it, the industrial action can be stopped by injunction because it is unlawful. However, the ballot does not guarantee immunity. The industrial action could still be unlawful, although supported by a majority in the ballot, because it is not in contemplation or furtherance of a trade dispute or because the action involves a civil wrong not covered by the immunities.

It is the scope for legal argument on those two subjects—whether the action is covered by the immunities, combined with the fact that the ballot sanctions a strike only for four weeks after the ballot—that causes the problem that the Bill addresses.

Essentially, the length of time that the legal argument in the courts can take, all through the appellate system, ending up in your Lordships' House in its judicial capacity, means that four weeks can be run up before the courts have finally decided. So the ballot result is defunct and the union is put to the cost of holding a ballot all over again. Sensibly, the Bill says that the solution is to allow the judges, after they have finally had their say, and if they have ruled that the industrial action is lawful, to extend the four-week period before the period covered by the law's inevitable delays.

That is a sensible proposal which has my support, so far as it goes. But many of your Lordships, at any rate those who are not lawyers, may be thinking that it is all very puzzling. Why is it necessary to legislate for the law's delay? Why do we not have a clear and straightforward system of law which tells us the boundaries of lawful industrial action? Apart from the ballot, there are essentially two things about which an employer and union can differ. First, is the industrial action in contemplation or furtherance of a trade dispute? If not, no immunity. Secondly, are the civil wrongs (torts) caused by the industrial action covered by the immunities?

In the late 1970s, the first of those points caused great problems, leading to trade union disillusion with the courts which, it must be said, lasts to this day. However, the immediate grievance of the trade unions was removed by decisions of your Lordships' House in its judicial capacity in 1980. Lord Diplock, in the leading case,Express Newspapers v. McShane in 1980, emphasised the need for the courts to implement the will of Parliament because, the manifest policy of the Act was to strengthen the role of recognised trade unions in collective bargaining … and to exclude trade disputes from judicial review by the courts". Later that year, inDuport v. Sirs, the steel strike case, Lord Diplock, reversing the Court of Appeal, said: If judges were to grant injunctions notwithstanding that they know"— and I emphasise those words 'that it is highly probable that the acts that they are enjoining are perfectly lawful, it is unlikely that voluntary respect for the law as laid down and applied by courts of justice will continue to have any influence in controlling industrial action". That judgment can be read as judicial code language for the proposition that the decisions of the courts in the late 1970s, which had artificially restricted the concept of industrial action in furtherance of a trade dispute, had to stop and Parliament's will had to be heeded. So it was. The subsequent decisions of the courts on that subject have been fair and unobjectionable, but a residue of a distrust of the judiciary has inevitably remained from those days.

The contemporary problem which causes trade union distrust of the judiciary arises differently. The dock strike case illustrates the point vividly. Before I say what the problem is, perhaps I may make an observation that I believe will meet with assent in all quarters of your Lordships' House. Confidence in the fairness and even-handedness of the judiciary, in interpreting and developing the law, is an indispensable part of a system governed by the rule of law, because ultimately the law depends upon consent.

The new problem, which the dock case illustrates vividly, is the judges' propensity to invent new torts (new forms of civil wrong) and so, for example, to hold, "This industrial action may involve a new kind of civil wrong not expressly covered by the immunities. To be sure it also involves the forms of civil wrongs that are covered by the immunities. But, never mind, we can think of a new kind of civil wrong that may in law exist and is not covered by the immunity; so we are going to grant an injunction".

One would have to be a lawyer to understand all that, and I doubt whether even that would be sufficient. This is what happened in the dock case, which has been referred to by a number of your Lordships. The judge at first instance refused an injunction; the Court of Appeal imposed one; and then your Lordships' House in its judicial capacity said, "No, the trial judge was right".

The Court of Appeal had ruled that this was a case for an injunction because it was arguable that the law recognised the existence of a new tort of injuring an employer's business by inducing a breach of a statutory duty, whether or not actionable in itself. Here, the breach of statutory duty alleged was breach of a duty, which the dockers were said to be under, to work under the national dock labour scheme. If—and I emphasise "if"—there was such a tort, then that tort was not covered by the immunity.

Any reasonable person would ask: why are those Lords Justices saying that it is arguable that there may be this tort? This is judge-made law. It is their job to make it. That indeed is what we pay them for. Why did they not make up their minds as to whether that tort existed? After all, they had five whole days of legal argument with four Queen's Counsel and six junior barristers, representing all the parties, to assist them. Still, they said in the leading judgment: The precise limits and characteristics of this tort are uncertain, and the argument, though full, has not been comprehensive. Counsel for the employers raised the possibility that some further research might be necessary. I see the force of this submission". Apparently the suggestion was that more time could be spent examining Commonwealth authorities on that debatable point of law.

Meanwhile, because it was arguable that the strike was unalwful, the union was liable to an injunction on the grounds of the damage that the strike would cause. Most reasonable people who are not lawyers would say that all of that is utterly bizarre. Let me say right away that it is the judges' job to develop the common law, and no one would take that right away from them. The trade unions are bound to think—and so confidence in the system is diminished—"Just as the judges put strained interpretations on 'acting in furtherance of a trade dispute' in the late 1970s, they are now inventing new torts to deprive us of our immunities".

Perhaps I may emphasise that throughout the Transport and General Workers' Union was obedient to the law and abstained from strike action, although its confidence in the system must have been sorely tested.

The true remedy for all that, which the next Labour government—on recent events that cannot be far away—will introduce, is plain. The judges can get on with inventing new torts to their hearts' content. But it will not make a scrap of difference to the immunity. The immunities will apply to any civil liability, regardless of the label that the judges put upon it, which otherwise would result from primary industrial action in furtherance of a trade dispute, though obviously not to any breaches of the criminal law or trespass to land or the person.

I support the noble Lord's Bill, but the note of caution I enter is this. I hope that the Bill does not signify acquiescence in an endless vista of expensive litigation, ameliorated only by the judges saying at the end of it all, "There shouldn't have been an injunction after all. Now you can go on and act on your ballot".

This is a sensible Bill which deserves support from all quarters of the House. It proposes a wise and modest change. But it will not be long before a new government will have the opportunity to address these questions more fundamentally. Meanwhile the limited measure proposed by the Bill merits support.

7 P.m.

Lord Hayter

My Lords, in speaking to your Lordships I hope that perhaps I am also speaking to parliamentary draftsmen. Yesterday I suffered having to listen to parts of the Employment Bill, a big Bill in itself, but it devoted two clauses and 87 lines to whether Sikhs could wear turbans or whether they should wear steel helmets. On the other hand, here we have a complete Bill drawn up in only seven lines. It is short, concise and, as I understand it, very sensibly drawn up.

Another point which commends itself to me—and this is an old chestnut in this House—is that the word "may" is used in the Bill and not "shall": the period … shall be extended for such period as the court may direct". I also like the idea that it is the court which will decide the time factor which should be involved. It is not the Minister, it is not the department, it is the court which hears the issue involved.

I bring up my children on the adage with which I hope noble Lords agree, that there is no such thing as a bad short speech. Here we have a short Bill and so far as I am concerned as a layman it deserves a short speech. I commend it to the House.

7.2 p.m.

Baroness Turner of Camden

My Lords, I rise to give support to the Bill. I am sure that the House is grateful, and we should all be grateful, to the noble Lord, Lord Campbell of Alloway, for introducing it and giving us the opportunity to debate this quite important issue. There have been a number of distinguished speakers to date. I am not a lawyer and I speak from my experience as a former trade union official. I believe that the Bill is a modest attempt to rectify an injustice.

As has been explained, under present legislation in order to qualify for immunity a union must ballot its members in advance of industrial action. If it receives a mandate from its members in the shape of a majority vote, it has four weeks from that date in which to implement that mandate and to embark upon industrial action. If it fails to do so within the time limit of four weeks, it has lost its mandate for action and must ballot its members all over again.

Normally, once a union has achieved a majority vote, it proceeds with its action. There would be little point in delay. It is fair to assume that all possible action to resolve the dispute through negotiation and conciliation will have been attempted before the ballot is undertaken. This is the normal situation, although the Government seem to believe that unions have a predilection for striking first and talking afterwards. That is absolutely not so and I speak from some experience in these matters. Most union officials wish to resolve issues at the negotiating table. Failure to do so is costly both for the union and for the individual members.

However, there is an implicit acceptance of the view, and it is in the legislation introduced by the Government, that once all the necessary hurdles have been surmounted— and they have become much greater in recent years— there still exists the right to withdraw labour collectively and to do so lawfully. At least that was the assumption until this summer. This year we had the dispute following the Government's abolition of the dock labour scheme. In that instance, as we have heard, the union was extremely careful to ensure that its activities stayed within the law. Members were balloted about industrial action. The ballot took place between 10th and 17th May. The result was announced on 19th May, and there was a large majority in favour of a strike.

However, on 8th May Associated British Ports and the Port of London Authority issued writs in the Chancery Division claiming injunctions and damages against the union. The motions came before Mr. Justice Millett on 18th May. The hearing extended over eight days. On 27th May he gave judgment against the employers' applications. He granted an injunction, however, to restrain the calling of a strike until Thursday, 1st June, when the appeal of the employers came before the Appeal Court.

The Appeal Court was well aware that the issue should be dealt with as one of emergency. Indeed, to quote from the judgment of Lord Justice Neill: By reason of the provisions of Section 10 of the Trade Union Act 1984 any protection afforded to the union or any other person by Section 13 of the Trade Union and Labour Relations Act of 1974 will not be effective in respect of any industrial action which starts after the expiry of four weeks from the date when voting ended in the recent ballot. The last day of voting was 17th May. The period of four weeks will expire on 14th June". As we know, the Appeal Court found in substance against the union and for the employers. The reasons that it did so are not particularly relevant to the arguments for this Bill, except that it introduced another apparently new concept in relying upon possible damage to the public interest as one of the reasons for finding in the employers' favour. This undoubtedly gave rise to a great deal of concern. To quote, for example, from an article in the Guardian at that time, One may ask why the Appeal Court judges felt it necessary to bring in such a politically charged concept as the 'public interest' when even under the highly restrictive framework established in the last decade, there is no provision directing the courts to consider such a notion". The Financial Times commented: for the courts to invoke the public interest in aid of outlawing official strike action is, apart from questions of principle, to diminish seriously the valuable right of the individual in a democratic society to withdraw his or her labour. And the more important the industry the greater would be the diminution in the weapon of strike action". I cite that because all this added to the general confusion existing as to what was ultimately permissible for unions that believed that they were following the law and the requirements of current legislation.

The feelings of many were summed up by Jimmy Knapp, the general secretary of the NUR, when he said: We are living a legal nightmare. We are rapidly reaching the position in this country today where it is not possible to call a strike and remain within the law". Well, as we know, in the dock dispute the Transport and General Workers' Union appealed against the Appeal Court decision to the ultimate appeal court—your Lordships' House. The decision given was in favour of the union. But by that time, 21st June, the four weeks had elapsed. It became necessary for the union to ballot all over again and valuable time had been lost.

It was understood in the Appeal Court that this was an important issue, since Lord Justice Neill said: that it is in the nature of industrial action that it can be promoted effectively only so long as it is possible to strike while the iron is hot; once action is postponed it is unlikely that it can be revived". That is really the essence of the argument. A situation in which the four weeks' period allowed to the union in which to organise a dispute can be whittled away by employer actions in the courts is not one in which it can be maintained that the union and its members are being treated fairly.

If it appears to members that official disputes are becoming increasingly difficult to organise, despite the justice of the case and the support of members, then it seems to me that we are bound to see an increase in unofficial action. The Secretary of State has recently announced proposals for dealing with unofficial action. In his statement accompanying the Green Paper, he is reported as saying: Unofficial industrial action, that is industrial action not organised by a trade union, costs jobs and undermines our international competitiveness. Such action tends to be sudden, unpredictable and disruptive. It is often taken without notice and without regard to the normal channels for settling problems peacefully". That is precisely the case, but in situations where official action becomes increasingly difficult and where the legal situation becomes increasingly confused a growth of unofficial action is almost inevitable. It really is not possible to keep the lid on situations where there is a great deal of membership discontent.

Instead of attempting to legislate against unofficial strikers the Government should do more to ensure that the legislation they already have in place is amended to provide for greater equity. This small Bill gives an opportunity for that to be done. I therefore commend it to your Lordships.

7.10 p.m.

Lord Strathclyde

My Lords, I have listened with great interest to what has been said in this debate on an important aspect of industrial relations and trade union law. We have heard from Members of this House whose experience and expertise in industrial relations law and practice has been reflected in the tremendous quality of this debate. I too am sorry that the noble and learned Lord the Master of the Rolls could not be here. However, if I may say so with respect, we have heard from him through the noble and learned Lord, Lord Brightman.

The explanation given by the noble Lord, Lord Campbell of Alloway, of the reasons which led him to introduce this Bill was most helpful. I understand his purpose and his quite proper concern that the law on union industrial action ballots should work properly. I entirely agree that it would be quite wrong to tolerate what I believe the noble Lord called a manifest injustice.

The Government welcome the chance to debate these matters. We are sincerely grateful to the noble Lord for raising this issue. It is perhaps a pity that the noble Lord's Bill has been introduced so late in the current Session. However, I have little doubt that noble Lords will hear more about these matters in the months ahead.

The noble Lord's Bill seeks to give the courts unfettered discretion to extend the 28-day period following the date of a union industrial action ballot during which the first authorisation or endorsement of an act of inducement must take place if the union is to have immunity for organising the action.

What is the essential purpose of the law which makes union immunity for organising industrial action subject to the balloting requirements? In requiring the union to hold such a ballot, the law simply 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. This principle has been widely welcomed by employers, the public and union members alike. It follows that to allow an unlimited or unduly lengthy period of time between such a ballot and the union's authorisation or endorsement of the action would be inappropriate in any circumstances. If this could happen, the views expressed by voters in the ballot might no longer be an accurate guide to whether they were content for their union to authorise or endorse the action at the time it actually did so. Where there has been such a delay, a union should re-ballot.

The 1984 Act fixed the limit at 28 days from the date of the ballot. If it had become apparent that the wrong limit had been adopted, the Government would certainly be prepared to come forward with proposals to make whatever adjustments were necessary. But it is surely right to reflect on whether there is real and significant evidence that this was an inappropriate approach.

My noble friend Lord Campbell of Alloway and many noble Lords have referred in the debate this evening to the one instance where this limit has in practice caused a significant problem. It has been pointed out that the grant, and subsequent extension, of interim injunctions against the Transport and General Workers' Union this summer meant that by the time the Law Lords lifted the injunction on 20th June more than 28 days had elapsed since the relevant date of the ballot; that is, 17th May. The union was therefore obliged to re-ballot its members in the docks in order to secure immunity for authorising industrial action. But the circumstances surrounding these proceedings and the nature of the issues which the courts had to address were unusually complicated, and I venture to suggest, quite unique.

Up to the point where the judgment of the Law Lords was given, there were reasonable grounds for believing that calling for a strike, and hence the union's authorisation of industrial action, might have been unlawful, whether or not there had been a proper union ballot. The Court of Appeal addressed itself to the issue of whether it could ever be lawful to induce workers whose terms of employment were regulated by a particular statutory scheme to go on strike.

The statutory dock labour scheme was—I am glad to be able to use the past tense now that it has been abolished—a very unusual and highly anomalous arrangement applying to a particular class of workers. It was introduced to regulate dock work more than 50 yeas ago. Features of the scheme—for example, making employers liable to criminal penalties if they refused to employ certain individuals—were anachronistic and unique. It is hardly surprising that the issues raised before the courts during May and June this year were not capable of quick resolution and that the proceedings had to run a full course through appeals up to this House.

The Government believe that it is at least equally unlikely that such proceedings, which relate to the question of inducing strike action by those whose employment is regulated by a special statutory scheme, could occur again. Even if they did, it is by no means certain that the courts would need as much time to deal with the proceedings as happened with respect to the issues raised last summer.

I suspect that the principle of giving the courts some sort of discretionary power to alter the 28-day limit is a more important aspect of this Bill than the detail of what it proposes. It would, nonetheless, be appropriate to make one or two comments on the nature of the arrangements it proposes.

First, it would give the courts complete discretion to extend the 28-day limit, but does not provide any guidelines or principles by which they could determine just what length of time would be appropriate in any given circumstances. While I am sure that the courts could be relied upon not to misuse such wide discretion, it would be important, as I explained earlier, not to allow too long a period between the date of a ballot and the time when a union authorised or endorsed the relevant act of inducement.

My noble friend Lord Campbell of Alloway and indeed my noble friend Lord Carr of Hadley made a passing reference to imposing a maximum limit on an extension, but of course that is not a feature of the Bill before your Lordships' House.

Secondly, the Bill proposes that this wide discretion should be available, if any relevant act is called into question in any legal proceedings". It seems to the Government that this approach fails to address the fact that it is extremely unlikely that the issue of the 28-day limit, and its effects or potential effects, will be relevant in all but the most exceptional circumstances. The Government— I hope noble Lords will share our concern about this point—would not want to risk creating a situation in which unions might welcome proceedings because they might afford the opportunity to extend the relevant limit that would otherwise apply.

The noble Lord, Lord Irvine of Lairg, referred to the potential difficulties of knowing whether an act of inducement is or is not in contemplation or furtherance of a trade dispute. With the exception of the docks case, there have been very few proceedings relating to torts other than those covered by the statutory immunities.

The reform of industrial relations and trade union law since 1979 has been among the Government's major achievements. These reforms have contributed significantly to the important changes of attitude which have made the improvement in our economic performance and prospects possible. The Government believe that the relevant law should be subject to periodic review. I can assure the House that the Secretary of State has given careful consideration to the various matters which arose in the course of the proceedings brought against the TGWU. He will of course give equally careful consideration to the very important opinions and views that have been expressed in this debate from all sides of the House.

However, as I have said, the Government believe that it would be wrong in principle to allow an undue period of time to elapse between a ballot and the union action to which it relates. It would also risk undermining the fundamental purpose of the ballot—to enable members' views to be taken into account in determining what their union may do. It must at least be arguable that to allow a union immunity for acting in a way which may not accord with its members' wishes at the time of the action could be manifestly unjust.

In addition, the kind of changes to the law which the Bill proposes should not be adopted simply to take account of what happened in what I have already said was one very special case. The 28-day limit has operated for five years and only in one instance, which arose out of unique circumstances, has a union run out of time because of the need to resolve court proceedings.

We must not lose sight of how peculiar the provisions of the dock labour scheme were. We must guard against making changes to important general legislation which has worked well because of events relating to such a special case.

I hope that it will be apparent from what I have said that the Government fully recognise the concerns that have been expressed in the debate. We shall certainly continue to keep the matters under review. I can assure my noble friend Lord Campbell of Alloway and all other noble Lords who have spoken in the debate that we shall study closely the record of the debate, which will be an important part of our overall exercise.

Lord Brightman

My Lords, before the noble Lord sits down perhaps I may ask him whether the Government would be prepared to consider the addition at the end of Clause 1 of such words as: to enable such legal proceedings to be concluded".

Lord Strathclyde

My Lords, I am obviously not a legal expert or able to comment immediately on the type of wording that the noble and learned Lord has proposed. As I have said, we shall study what has been said in the debate and we shall no doubt look very closely at that phrase.

7.22 p.m.

Lord Campbell of Alloway

My Lords, I wish to thank all noble Lords who have spoken in favour of the Bill to provide the requisite all-party support. I acknowledge with gratitude the support of the noble and learned Lord, Lord Donaldson. Time does not allow me to make adequate expressions of gratitude to each of the noble Lords who have made crucial contributions to the debate, but they are assuredly not taken for granted.

I should like to thank my noble friend the Minister for his contribution. I understand his position, and I suppose that I understand the kind of brief from which he spoke and why he had to say what he said. However, it is a little wide of the true mark.

Perhaps my noble friend would take on board that his concept of the problem as a one-off event which is unlikely to arise again is, with the greatest respect to him, a misconceived, optimistic, departmental folly. It has no substance in truth, in fact or in practice. If he really wants to know the true position— and I know that my noble friend does want to know— perhaps he will kindly consider asking his right honourable friend the Secretary of State to write a letter to the noble and learned Lord the Master of the Rolls to ask him whether what I have said, as recorded in Hansard, is true or false in his opinion.

If what I have said is true, the substance of the departmental objection and the reasoning behind the speech of my noble friend are assuredly misconceived. The Government start from the basis of a misconception as to the substance of the problem which has no bearing on the view of the Master of the Rolls that the present situation is playing havoc in increasing the burden on the judiciary and playing havoc with litigants having their cases taken out of court. This is not just a one-off job. In the view of the Master of the Rolls, as I stated, it is a serious problem that is likely to arise in many cases in the future.

The crucial issue is that if that is right the Government must think again. If it is wrong and the Government are satisfied that the Master of the Rolls does not know what he is talking about or they reject his opinion, well and good. It will then no doubt be a matter for this House on some future occasion to decide how to deal with the question. I understand my noble friend's position and I am grateful for the care and trouble that he has taken to deal with the matter.

The record speaks for itself. My noble friend the Minister has been extremely kind to say that he will draw it to the attention of his right honourable friend the Secretary of State. The hope must be that as no amendments are envisaged and no marker has been put down we may move to dispense with Committee stage so that the Bill may pass your Lordships' House before the end of the Session.

We have had a most constructive and good humoured debate. Nothing that I have said to my noble friend the Minister—or the manner in which I have said it—was intended to evince any hint of ill humour. It is merely that here is an issue which has to be resolved, fairly and objectively, by the department and, if it comes to that, by Cabinet.

On Question, Bill read a second time, and committed to a Committee of the Whole House.