Lords Sitting of 10 July 1990

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Exeter.

Pension Age Difference: Barber Judgment
Lord Stallard Lord Stallard asked Her Majesty's Government:
Whether they have completed consideration of the European Court judgment of 17th May 1990 in the case of Barber v. Guardian Royal Exchange Group on the issue of payment of redundancy benefits (including pensions) on an equal basis to both sexes; and what proposals they have for the implementation of the judgment.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, I am afraid that I have nothing to add to what I said on the Third Reading of the Social Security Bill. We are still considering the implications of a judgment that is unclear. I should also emphasise that individual schemes should seek their own legal advice on each scheme's individual circumstances.
Lord Stallard: My Lords, I thank the Minister for that reply. He must be aware that although governments come and governments go, that kind of reply goes on for ever. Does he agree that the Barber judgment makes a very important difference in so far as there is a relationship between occupational pension schemes and the state scheme? Will he accept that because of that relationship, it is now becoming more urgent and certainly more imperative that the Government should announce their plans to equalise the ages in the state pension scheme so that employers and the managers and trustees of occupational schemes can begin to plan the future of the schemes in the light of that judgment?
Lord Henley: My Lords, I do not think that I can go further. I do not accept that it is necessary for the Government to rush into precipitous decisions on equalisation in the state pension scheme. I shall continue to say as regards the particular judgment that we await legal advice and will again consider the matter when we have obtained it. Until then I can recommend only that individual schemes and their trustees should seek their own legal advice.
Baroness Turner of Camden: My Lords, I thank the Minister for that reply which is very similar to the response that he made to the discussion on the Social Security Bill. Has he no further information for us on bridging pensions, an issue which it has become necessary to raise only because of a recent European directive and because we have unequal pension ages in this country? Can he give us any further information about that matter?
Lord Henley: My Lords, I am afraid that I cannot. The problem is one for clarification. The Government are unable to clarify the European Court's judgment.
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It is up to the court itself to clarify that judgment, and the means by which we can find a way of going to the court to clarify the judgment are necessarily limited.
Lord Allen of Abbeydale: My Lords, does the Minister agree that the judgment emphasises the need to come to a decision about the state pension age? At one stage it looked as though the Government were in favour of a decade of retirement, but we have heard no more of that. Does he further agree that the change, when it comes, will be bound to take some years before it is fully implemented and that it is very frustrating and difficult not even to know what the starting point will be?
Lord Henley: My Lords, I answered that point when I replied to the noble Lord, Lord Stallard. I do not believe that we should be rushed into precipitous decisions on equalising the state pension scheme as a result of the court judgment.
Lord Allen of Abbeydale: My Lords, no one could say that the decision will be precipitous.
Lord Stallard: My Lords, the noble Lord did not answer my Question. I pointed out the relationship between occupational schemes and the state scheme. It is a definite relationship. To a large extent occupational schemes depend on the state scheme and since they will now—certainly yesterday's Question Time pointed in this direction—have to implement the Barber judgment, does he not feel that they are entitled to have a lead from the Government on what to do about the other part of the pension, namely, the state scheme? It is not a question of rushing into anything or asking employers to obtain their own legal advice. The occupational schemes can get legal advice on the Barber judgment. But is the Minister not aware that what they want is advice from the Government on the state scheme?
Lord Henley: My Lords, I accept the link, as I said in answer to the noble Baroness, Lady Turner. But I do not believe that the Government can rush in. We have to clarify what the European Court means before we can make a decision.

Community Health Councils
2.40 p.m.
Baroness Masham of Ilton Baroness Masham of Ilton asked Her Majesty's Government:
What proposals they have for the future membership and role of community health councils.
Lord Henley: My Lords, membership of community health councils will remain as it is now. Their role will remain fundamentally unchanged. District health authorities will be expected to take careful account of the views of their resident population on the overall pattern of service which they plan to secure, and community health councils will play an important role in that.
Baroness Masham of Ilton: My Lords, I thank the Minister for that reply. But is he aware that because there have been so many changes recently to the

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National Health Service the consumer organisations feel that it is very important that they should know exactly how the patients will be represented?
Lord Henley: My Lords, my right honourable friend the Secretary of State, in writing to the Select Committee in response to its eighth report of 1989, has already made clear that he sees no change in the fundamental role of community health councils. The White Paper proposals that are now being taken into the Act do not add to the CHC's duties or burdens, but obviously the role will have to be clarified to cater for the change in the function of the districts from providers to purchasers of services.
Lord Ennals: My Lords, is the Minister aware how grateful I am to him for having clarified the fact that there will need to be a change in the role of community health councils? Does he accept that, under the new style of commercial management of the health authorities, it is even more important that the views of the consumers of health services should be fully understood and taken into consideration? In answer to the noble Baroness he stated that there will be some change. Is it not time that that change was known to the community health councils and to the many voluntary organisations which look to and have members on the community health councils?
Lord Henley: My Lords, the noble Lord took me slightly further than I meant to go. I was not clarifying how their role would change. I said that the fundamental role of CHCs will remain the same as it is now. However, because of the change in function of the districts, that role will have to be clarified. I can say at this stage only that guidance will be issued in due course on clarification of that role.
Lord Ennals: My Lords, when is "in due course"? The community health councils and the voluntary organisations are intensely interested in the health service. They wish to know what the future holds for them.
Lord Henley: My Lords, I am afraid that I cannot give a date. I can assure the noble Lord that it will be soon.
Lord Hunter of Newington: My Lords, will the Minister clarify the other part of the Question about future membership? He made some oblique reference to it. However, if the Government consider it an important body, I should have thought that its membership is of vital importance.
Lord Henley: My Lords, as I made clear in my original Answer, we have no plans for changing the membership of community health councils. The membership will remain as it is at the moment; that is, one half appointed by local authorities, a third by local voluntary organisations and a sixth by the regional health authority.
Lord Wallace of Coslany: My Lords, while I am delighted at the news that the noble Lord has given, is he aware that it is vitally important that the views of the community health councils should be regarded by regional and other authorities with greater care than they sometimes are at present?
Lord Henley: My Lords, I take note of what the noble Lord says. It is for the district health authorities to take note of the views of the community health councils. That is the role of the community health councils.
Lord Mellish: My Lords, is the Minister aware that some of us have experience of the ways in which community health councils operate vis-à-vis district health authorities? I believe that the noble Lord, Lord Ennals, will well remember one instance that I call to mind. A community health council said, "This hospital will not close, and we shall do all we can in that respect." However, the district health authority plus the Minister of the day said that it would close, and it did. That does not make the community health council very important.
Lord Henley: My Lords, of course those councils are important. Just because one body gives its view of how matters should develop does not mean that the district authority and the Minister should follow what it says.
Lord Stallard: My Lords, can the Minister assure us that the community health councils will have a role? A great many people fear—and the reply from the Minister and the delay involved will do nothing to alleviate that fear—that those councils have been given no role and nor will they be given a role. They fear that no criteria will be laid down, and that eventually they will be chopped off. The real fear is that they will be dispensed with altogether because no role is laid down for them.
Lord Henley: My Lords, I thought that at the Dispatch Box I was giving an assurance that the fundamental role of the CHCs would remain as it is now.
Baroness Masham of Ilton: My Lords, what happens if a hospital trust gets into difficulty? What will then be the role of the community health council?
Lord Henley: My Lords, the community health council is there to advise and to make recommendations to the districts. As the noble Baroness will know, in Community Health Councils (Amendment) Regulations which were laid at the beginning of this month and which come into force on 27th July, the role of community health councils will be expanded to inspect premises of both the regions and National Health Service trusts. As I have stated, the fundamental role of the CHCs will remain. In those circumstances, obviously the regions will consult the CHCs on the formation of a NHS trust. In the very unlikely eventuality of the closure of a NHS trust, again they would be consulted.

Postal Charges: Increases
2.48 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
Whether they were consulted by the Post Office before the announcement of the forthcoming increase in postal charges and, if so, what view they expressed.
The Minister of State, Department of Trade and Industry (Lord Trefgarne): My Lords, Ministers have no formal locus in the setting of letter tariffs which are a matter for the Post Office after consultation with the Post Office Users' National Council.
Lord Boyd-Carpenter: My Lords, does my noble friend agree that that does not answer the question as to whether or not the Government were consulted? It also does not answer the question as to the view of the Government on an increase in prices, which many of us believe is likely to produce a substantial inflationary effect.
Lord Trefgarne: My Lords, the formal responsibility for considering and commenting on those matters rests with the Post Office Users' National Council. The Government keep in informal touch with the Post Office, not least because of the need to ensure that the Post Office meets the financial objectives set for it.
Lord Mulley: My Lords, does the Minister consider it likely that we shall ever again attain the situation of past years? If someone posted a letter and the recipient denied receiving it, he was not believed. Today one is absolutely surprised if one receives a letter posted first class the day after it is posted.
Lord Trefgarne: My Lords, I do not claim that the Post Office service is as good as it should be. Equally, I do not think that it is as bad as some people suggest. There have been some important improvements in recent times which I very much welcome.
Baroness Burton of Coventry: My Lords, as the Minister will be aware, in the report of the Post Office Users' National Council published this month, mention is made of agreed service improvements. Is the Minister also aware that on the same page of the report the council says that those agreed service improvements are not now to be put into effect although the money was found for them in the 1988 tariff increase?
Lord Trefgarne: My Lords, as I said earlier, it is indeed the case that the postal service is not yet as good as it should be and not all of the improvements that the Post Office management is seeking have yet been implemented. However, I am happy to say that Sunday collections have been implemented in the place where my noble friend Lord Boyd-Carpenter lives.
Baroness Burton of Coventry: My Lords, if money was given to the Post Office to carry out improvements which have not been carried out and the Government have agreed to further increases, why should the money not be spent on the improvements which have already been agreed?
Lord Trefgarne: My Lords, I am not sure that the noble Baroness fully understands the situation. The Post Office is not given money for those purposes. It has to earn it. The earnings relate to costs as well as to other new expenditure which many people, including myself, would regard as desirable.
Lord Alport: My Lords, can my noble friend say whether, in view of the decline in the value of money between 1840 and 1990, the price of the letter post at the moment is more or less than it was 150 years ago
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when the penny post was established? If my noble friend does not have the answer at his fingertips will he let me know?
Lord Trefgarne: My Lords, I shall be very happy to let my noble friend have that information if I can find it. However, during the five-year period between March '85–1985, that is—and March 1990 letter prices rose by 11 per cent. less than inflation. I understand that the Post Office estimates that if the proposed rises are implemented as planned in September prices will have risen by 7 per cent. less than inflation in the last five years.
Lord Barnett: My Lords, how can the Minister disclaim all government responsibility? Did the Government not set a financial figure for the Post Office, leaving it to the Post Office to decide how to meet that figure?
Lord Trefgarne: My Lords, I said in answer to an earlier question that the Government set financial objectives for the Post Office. Of course, we keep in close touch with the Post Office management to ensure that those objectives are being met.
Lord Williams of Elvel: My Lords, is the noble Lord aware that he has not answered the Question put by his noble friend Lord Boyd-Carpenter? Apart from those informal contacts and ensuring that financial objectives are met, were the Government consulted about this particular rise in charges and, if so, what attitude did they take? Will the noble Lord tell the House whether the Government have been consulted about the proposal of the chief executive of the Royal Mail, reported in the press, to study the question of early delivery and possibly to eliminate it? If that is on the agenda will we have an opportunity to debate it in this House before any decision is taken?
Lord Trefgarne: My Lords, the answer to any question as to whether the Government have been formally consulted about a matter which is the responsibility of the Post Office authorities is, no.
Lord Tordoff: My Lords, will the Minister answer the second part of the Question of the noble Lord, Lord Boyd-Carpenter, as to what view the Government have expressed? What is the Government's view on the increase in postal charges? Can we have an answer?
Lord Trefgarne: My Lords, I am sorry if my earlier replies were not as clear as the noble Lord would have wished. The Government have no duty to comment formally on these matters and have not done so.
Lord Boyd-Carpenter: My Lords, in connection with my noble friend's answer to my earlier supplementary question in respect of Sunday collections in the area where I live, is he aware that last Saturday I visited my local post-box and saw plainly on it a notice stating that the next collection would be on Monday? How does he reconcile that with his answer?
Lord Trefgarne: My Lords, when Sunday collections were resumed in the area in which my noble friend lives, and in many other areas, they were not resumed from every post-box in the area but only from selected post-boxes. I shall be very happy to let

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my noble friend know the boxes in which he should post his letters on a Sunday if he wants them to be collected.
Lord Bottomley: My Lords, does the Minister recall that some time ago I had reason to praise the Post Office's services? However, is he aware that since the price has increased the standard has gone down, and for the last three weeks the Whip has not been delivered to my house until late on a Friday whereas most noble Lords receive it first thing in the morning?
Lord Trefgarne: My Lords, I am very sorry to hear that the noble Lord has not received his Whip in as timely a way as he ought to. I hope that that is not because his Chief Whip posted it late.
Baroness Strange: My Lords, might it not be possible to reduce or at least peg the price of ordinary letters by increasing the price for delivering junk mail which I believe costs less than ordinary post?
Lord Trefgarne: My Lords, that is a matter on which I was questioned the other day. Junk mail, as my noble friend describes it, is posted in accordance with tariffs agreed by negotiation between the customer and the Post Office and is not carried at a rate which would subsidise other services.

Roads: Private Investment
2.56 p.m.
Lord Molloy Lord Molloy asked Her Majesty's Government:
Whether they intend to encourage private investors to build lanes beside existing motorways for the exclusive use of heavy goods vehicles.
Viscount Davidson: My Lords, the Government are encouraging the private sector to come forward with new road-building proposals. It is for them to judge what sort of roads would be financially viable. Lanes reserved for heavy goods vehicles might well be a possibility.
Lord Molloy: My Lords, I thank the noble Viscount for his reply, particularly the last few words because the scheme is just as imaginative as it was when first mooted. When the Government have come to a decision, will they ensure that parliamentary procedures are adopted that will require a Bill so that the proposal can be examined? Is the noble Viscount aware that most people, I believe, thoroughly agree with the idea?
Viscount Davidson: My Lords, the question was raised in the consultation paper published last year called New Roads by New Means. Paragraph 39 of the document referred to the possibility of the Secretary of State making adaptation by order, where safety was not compromised, to meet the needs of the operators' business; for example, by restricting the use of roads to particular classes of vehicle.
Lord Carmichael of Kelvingrove: My Lords, does the Minister think that this suggestion will go the same way as road pricing, which was officially buried by the Secretary of State for Transport in another place yesterday? Does the noble Viscount agree that there
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appears to be some confusion over the matter? The Prime Minister said at the Tory ladies' conference that it would form part of the manifesto whereupon Downing Street said that she was thinking aloud, while Conservative Central Office said that it was not a Conservative Party initiative so far as it was aware and that the Prime Minister was speaking off the top of her head?
Viscount Davidson: My Lords, I always listen to my right honourable friend with rapt attention. Other than that, I cannot make any further comment.
Lord Mulley: My Lords, can we have an assurance from the noble Viscount that in the case of roads promoted by private money there will be no relaxation of the rules or the cumbersome public inquiry system that exists for public roads unless, as I would wish, he abolishes the latter?
Viscount Davidson: My Lords, that is outside the scope of the Question. However, I shall write to the noble Lord with a view on the matter.
Lord Ezra: My Lords, are we to understand from earlier answers given by the noble Viscount on this Question that the Government could be considering designating routes for heavy vehicles, coaches and other large vehicles in congested areas?
Viscount Davidson: My Lords, we have not reached that stage yet.
Lord Cledwyn of Penrhos: My Lords, the noble Viscount's rapt attention is not enough. Is it not the case that the proposal was made with the full authority of the Prime Minister of this country? Is he aware that the Road Haulage Association said that the proposal was mind-boggling? Who is travelling in the right lane, the Prime Minister or the association?
Viscount Davidson: My Lords, the Prime Minister, of course.

Business
Lord Denham: My Lords, it may be for the convenience of the House to know that the Committee stage of the Employment Bill will be adjourned at about 7.30 p.m. for about one hour and that during that adjournment the Legal Advice and Assistance (Scope) (Amendment) Regulations 1990 will be taken.

Employment Bill
3 p.m.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Strathclyde): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Strathclyde.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Chairman of Committees in the Chair.]
Clause 1 [Refusal of employment on grounds related to union membership]:
Lord McCarthy Lord McCarthy moved Amendment No. 1:
Page 1, line 7, after ("union") insert ("or a professional association").
The noble Lord said: This amendment deals with the extension of Clause 1 to professional associations. As the Committee will know, the purpose of Clause 1 is to establish a situation in which refusal of employment on grounds related to union membership is to be protected in future.
In the amendment we are saying that that degree of protection imposed in the clause should be extended to cover professional associations. Those Members of the Committee who have listened to debates in the past will know that this matter was raised in another place by the honourable Member for Sedgefield along the following lines; namely, that professional associations practise pre-entry closed shops in much the same way as trade unions. For the Institute of Chartered Accountants and the other accountant associations, the Royal Institute of British Architects and the Royal College of Veterinary Surgeons and others, prior membership is a ticket to employment. Those bodies represent what Carr Saunders in his study of professional associations called the registered professions which enjoy a state regulated monopoly.
We know also that the right to perform certain categories of work are quite clearly related, specified and limited to members of those associations. The right to act as auditors of accounts in limited companies is confined to members of the accountant associations. The right to perform operations and issue certificates in a wide range of areas is related and restricted to, for example, the Royal College of Veterinary Surgeons.
It has never been said, and we are not saying, that all professional associations operate closed shops. Although it examines, qualifies, disciplines and expels, the Law Society does not operate a closed shop. It is possible to continue to practise as a solicitor without being a member of the Law Society. The British Medical Association does not practise a closed shop. It participates in the examination and discipline of doctors through its membership of the General Medical Council but you can continue to be a doctor without being a member of the BMA.
Nevertheless, the issue of professional associations and membership requirements is not confined to a limited number of registered professions where it is prescribed by statute. As Carr Saunders in his classic study of professional associations clearly demonstrated, most professional associations—indeed, one might say, almost all professional associations—would like to have, the name and title of their association established as the entry to the profession. For example, osteopaths, chiropractors, house agents, brewers, public relations consultants and clerks of works are all non-registered professional associations which, says Carr Saunders, are aiming, in a sense, at making their professional title in substance the entry to the job.
Indeed, those who have succeeded in doing that—and a number have succeeded in gaining that
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recognition—can have the name, title and membership of their association protected by injunction. They can prevent people from continuing to call themselves by titles which would give the impression that they are members of an association when in fact they are not. Therefore, we are asking the Committee why that should not be the case for professional associations as it is in the future to be the case for trade unions.
It was said in another place by Mr. Eggar, at col. 14 of the Official Report of Standing Committee D on 18th February, that as regards the statutory registered professions Parliament or the House had:
"decided that the way to provide a level of competence and qualification in certain important professions was to ensure that an employee was a member of a professional association. For that reason, the Bill is not an appropriate means for regulating access to the professions".
The problem with that is that if that is what the House decided at some time in the past, that in itself is not a reason for Parliament changing its mind. After all, if it is not necessary for the Law Society or the British Medical Association to operate, in effect, a pre-entry closed shop, why is it necessary for architects, vets and Inns of Court?
If it is right for the registered professions to operate that because they are statutorily regulated in that way, what about the unregistered professions? The Government may argue—to some extent the Minister of State in another place argued—that professional associations are so concerned with standards and the preservation of standards in those professions that it is not fair to compare them with trade unions. However, the same Minister admitted under pressure that the professional associations also practise regulation of their trade or profession. Many of those professions, as a matter of regular custom, prevent, regulate or restrict price competition. Architects do not allow certain types of price competition. Accountants regulate price competition. Surveyors exchange lists of prices. Indeed, most professional associations, for part of their time and as part of their function, are regulating competition. It is true that they say that is done not merely in the interests of their members but also in the interests of society at large.
What is the difference between that situation and the situation of a craft union or a union like Equity or the Shipping Federation? Until it became unlawful, there was a joint pre-entry closed shop arrangement with the National Union of Seamen. It was successfully argued by both those parties before a previous Conservative Government that they were as much concerned with the quality of the labour force as anything else.
We are saying today that there is no clear distinction between professional associations and trade unions. We are saying that if you look at, for example, the European social charter, the right of association to constitute organisations includes both professional organisations and trade unions. The protection in the social charter of the right to belong or not to belong runs across the board to both professional associations and trade unions. Only in

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this Bill is there an attempt to make a distinction. This amendment seeks to put an end to that distinction. I beg to move.
Viscount Caldecote: This is a most extraordinary amendment. The noble Lord, Lord McCarthy, talked a lot about chartered accountants and other people of whom I do not have much knowledge. He did not mention chartered engineers. A chartered engineer has a high qualification. It is up to the employer, if he wants to, to specify (as he should do in certain circumstances) that a job is open only to a chartered engineer because he wishes to be sure that the person whom he is appointing to that job has certain qualifications which are denoted by the qualification of chartered engineer.
If he wishes to appoint another engineer who is not a chartered engineer, he is free to do so. There is no restriction upon him. A few categories of job must be performed by a qualified chartered engineer where safety of life is at risk. However, by and large the qualifications required are determined by the employer, and if he wishes to stipulate that he wants a chartered engineer who is a member of a professional institution it is right that he should do so.
The noble Lord complained that the description of some professional people was inappropriate. That is also absolute rubbish. It is important that people should be properly described and so understood. I know of one case where a ship capsized and life was lost because the person involved in certain changes in the design who purported to be a qualified naval architect and qualified engineer was in fact a BBC scene designer. As a result the ship was not in a fit state to go to sea.
The proposal that all professional institutions should be included in the clause is absolute rubbish. I hope the Committee will not accept the amendment.
Lord Monkswell: The amendment concerns a salient feature of the whole concept of industrial relations. One of the most significant aspects of industrial relations is the concept of fairness. A major reason for the breakdown of industrial relations is perceived unfairness.
The amendment attempts to project a sense of fairness into the Bill. At the moment the legislation applies only to one group of associations—trade unions. The perception of people who work in industry and commerce will be that trade unions are being singled out unfairly from other professional associations or groups of workers. That is an unfortunate impression to give.
I ask the Committee to consider the amendment carefully and to support it on the basis that we are effectively ensuring that fairness applies across the spectrum of associations, combinations and groups of people who work.
Lord Boyd-Carpenter: This is an extraordinary amendment, as was pointed out by my noble friend. Even more extraordinary is the argument to which the Committee has just had the privilege of listening. The noble Lord is saying that in the interests of fairness
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two different organisations with different functions should be treated the same. With due respect, that has only to be restated to be seen as complete and absolute nonsense.
The difference is perfectly plain. Professional associations, as the name indicates, are associations of people with certain special qualifications; qualifications which those who employ them wish to know that they possess. The general character of a trade union is not like that at all. It is possible, as the noble Lord, Lord McCarthy, has shown, to pick out one or two craft unions which are beamed a little towards certain skills. I have yet to hear that they establish examinations and test the skills of people before they allow them to join. On the contrary, one's experience is that trade unions, with their falling membership—membership over the past few years has been steadily falling—are anxious to recruit as many people as they can regardless of qualifications.
If there is no better argument against the provisions of the Bill and in particular of this clause than that one should treat organisations based upon specific professional skills in exactly the same way as organisations that are not so based, the sooner we pass on to the next amendment the better.
3.15 p.m.
Lord Rochester: On this occasion I must agree with the noble Lord, Lord Boyd-Carpenter. The concept of fairness has no application in this case. There are distinctions to be drawn between professional organisations and trade unions, as the noble Viscount, Lord Caldecote, said. He instanced the example of chartered engineers.
The amendment would prevent an employer stipulating that a person appointed to a professional position should be a member of the relevant professional organisation. A good example, as the noble Lord, Lord McCarthy, said, is that of auditors. The Companies Act 1976 provides that no one may act as an auditor unless he is a member of the Institute of Chartered Accountants or some comparable body. That Act rightly recognises the need to ensure that people who audit accounts in large public companies are suitably qualified. If the amendment were carried it would effectively overturn legislation prescribing that such people should have appropriate levels of competence. I do not believe that that is reasonable. If only for that reason I cannot accept the amendment.
Lord Jenkins of Putney: I should like to question the arguments of the noble Lords, Lord Boyd-Carpenter and Lord Rochester. They say that there is a fundamental difference between a professional association and a trade union. In analysing whether or not that argument is valid, one should have regard to the fact that the original step of qualification for work was probably created by the trade guilds, the working guilds in which the qualification to do the job was paramount.
The idea of people engaged in a specific occupation forming an association to protect their mutual interests is basically one related to working people. The professional associations, although members gain

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entry in most cases by qualification and examination, are pronouncing the same proposition. It is good that people who are associated together relate to each other.
Basically, I do not like the clause. However, if we are to have legislation of this type which seeks to regulate who comes in or to deregulate—in other words, a form of government intervention that says what should happen—I think that my noble friend's proposal on the Front Bench that it must be seen to be fair is a sound one.
The argument will be that there is a substantial difference between qualification by examination and qualification by other means. It is not necessarily possible to have examinations as to whether one could act as a shipwright. It would be difficult to do so. Therefore alternative methods have been found such as apprenticeships and so forth. These qualifications arise for very different reasons.
Some occupations, one of which I know well, involve people with qualifications working alongside people without qualifications. How is one to bring together the common interest which these people have? It can only be done on the basis of a mutual obligation to belong to the organisation which represents them. If one is not to have that obligation in one area, then it is obvious that it should not exist in another, where, although the qualification for entry is different, the basic purpose is exactly the same.
Baroness Seear: I do not want to prolong this discussion, but in supporting my noble friend Lord Rochester I pick up the point made by the noble Lord, Lord Jenkins. It would be a pity to accept the argument from the guilds. The guilds, as I think most people remember them, were organisations of employers and, as employers, they had an interest in standards and so were totally different from trade unions.
Lord Dean of Beswick: I am surprised that the Committee seems almost to have got into a situation of debating into which class of the social structure people fit, however employed. I was disappointed to hear the noble Lord, Lord Rochester, wholeheartedly agree with the sentiments expressed by the noble Lord on the Government Benches.
The argument put forward and subscribed to by the noble Lord, Lord Rochester, is that the professional associations are different from trade unions because they market a special ability. I reject that absolutely. For my pains, or sins, I am a skilled engineer. I started in engineering at 14 or 15 years of age and I learnt my trade on the shop floor. I could go back to it tomorrow if I had to, although probably not as efficiently, and market my knowledge. I consider it insulting for the noble Lord, Lord Boyd-Carpenter, to classify me as being different from someone who happened to have a professional qualification that is marketed better than mine.
What the noble Lord, Lord Boyd-Carpenter, said—supported, to my dismay, by the noble Lord, Lord Rochester—means that in a completely free market you can market your abilities, professionalism, or
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what you have learnt, but a bar shall be drawn between the white collar professions and the blue collar professions. It is absolutely outrageous to make such a suggestion. The blue collar worker who works the lathe, the boring equipment, or is a fitter, bench fitter, shipbuilder or chemical worker may be just as specialised as the members of so-called professional associations.
For example, we know that there can be appalling consequences where mistakes are made by, say, a person working in a chemical plant with a specific job to do. However, noble Lords are saying that there is insufficient protection because, although the person working alongside carries the same qualifications and the same permission to do that job, he is not deemed to be a professional. The noble Viscount, Lord Caldecote, with his love for the trade unions—I listened to the debate he initiated recently—was beyond belief. I believe he was referring to a shipping accident. We all know that there have been appalling accidents in the past few years and that, basically, some of the people held responsible for t hose accidents have not been trade unionists at the bottom end of the scale but people at the top end of the scale.
I need only take noble Lords back two or three years to the disgraceful and appalling events that occurred at King's Cross. The inquiry that was subsequently set up found that the person who was in overall charge at London Regional Transport at the time had some responsibility for what happened. I forget the gentleman's name but that was the finding of the committee of inquiry. That gentleman was not a member of a trade union but I am willing to bet that he was a member of his appropriate professional association. But what did the Government do? He was not subjected to the strictures of a court of law for dereliction of duty; he was moved to one side and given another quango.
It is all very well for Members on the other side of the Committee, supported by the Liberal Benches, accepting that attitude but it does not go down well to the people on the shop floor. I might be out of order in saying this, but we have present in the Chamber today a man who plays an important role in what finally happens in our courts of law. I am referring to the noble and learned Lord, Lord Donaldson, the Master of the Rolls. I have quoted him in the Chamber on previous occasions, and I shall do so again, as the judge involved in the industrial relations court at the time of the Edward Heath Government. As long ago as that the noble and learned Lord is on record as saying that the law was becoming out of balance in favour of employers and against the trade unions.
The amendments that seek to alter the Bill arise because the Bill is directed against the individual rights of trade unionists and not as corporate bodies. I believe that it is about time the Government stopped what they are seeking to do. As I said earlier, my sadness is that the noble Lord on the Liberal Benches chose to support this squalid exercise.
Lord Hunt: I am neither for nor against the amendment and I hope that my noble friend Lord

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Rochester will not wrongly conclude that I am speaking in a contrary sense to him. Having listened to the clear distinction which some noble Lords are trying to make between professional associations, on the one hand, and trade unions, on the other, it seems to me that there is no clear distinction to be drawn at all.
The National Association of Probation Officers, of which I am a past president, began as a professional association and then took on the duties of a trade union. At present it is proud to be both a professional association and a trade union, with very good historical cause.
Viscount Caldecote: The noble Lord, Lord Dean of Beswick, seemed to be confused in regard to a point that I made. In regard to a shipping accident my argument was that the designer of the modification used initials after his name which gave the impression that he was qualified to design the modifications. In fact he was not qualified to do so and the ship therefore capsized. I drew attention to the importance, in relation to what was said by the noble Lord, Lord McCarthy, of describing people correctly according to their qualifications. I was making no other point.
Perhaps I may also ask the noble Lord whether he was not making an argument that an employer should be able to give a reason for not employing a trade unionist simply because he thought the trade unionist did not have the qualifications that the noble Lord, Lord Dean, obviously has, but could give the reason that he is a trade unionist and does not want to employ him. Surely that is not what the noble Lord wants.
Lord Stoddart of Swindon: I have listened carefully to this debate and I have read the amendment over and over again. It states:
"after ('union') insert ('or a professional association')".
As the argument has proceeded some confusion appears to have arisen as to belonging to a professional association and being professionally qualified. The two are different. It is perfectly possible for an employer to say that he requires a person to be properly and professionally qualified before he gives him a job, but it is not necessary for him to follow that by saying that he must be a member of the relevant professional association.
There are very good reasons why an employer should not be able to say that. If he is able to say that to a person who is a member of a trade union, there are similar prescriptions in relation to a professional association. I feel sure that other Members of the Committee can imagine this situation. I do not want to belabour the point. There may be a chartered engineer with the highest qualifications. But because he has a disagreement with his association he does not wish to continue his membership. It may very well be that the association could put pressure on the employer and say, "This man has resigned from our association because he does not agree with us on a particular point. You should not employ him".
The amendment covers that point. An employer could quite correctly demand for a particular job or
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set of jobs a given qualification or qualifications. All the arguments which have been adduced from both sides of the Committee against this amendment fall on the basis of what I have just said.
3.30 p.m.
Lord Campbell of Alloway: I oppose this amendment. I declare that I am a member of a professional union and that I am unable to practise or ply my trade, so to speak, unless I am a member.
The professional association is a curious concept. It is not defined. The amendment seems to be a misguided attempt to broaden the closed shop concept, which the Government are rightly, in my view, trying to narrow.
Clause 1 is wholly concerned with trade union membership or non-membership. I take the point made by the noble Lord, Lord Stoddart. The clause is not in any way concerned with access to the professions. There is some confusion.
Lord Strathclyde: I did not expect for one moment that we should have such an interesting and lively debate on this amendment. Perhaps it will be helpful if I set out precisely what we mean in Clause 1 of the Bill. It seeks to ensure that an individual's union membership or non-membership will have no bearing whatsoever on the availability of job opportunities to him. Subsection (1) of the clause accordingly makes it unlawful for an employer to refuse to employ a person on the ground that he is or is not a union member. That is the point that I believe the noble Lord, Lord Monkswell, was trying to make about fairness.
The clause is an entirely even-handed and fair approach for people who are and for people who are not members of a trade union. I also believe that the noble Lord, Lord Dean of Beswick, got hold of the wrong end of the stick as regards this amendment and what the clause means. As my noble friend Lord Campbell of Alloway said, the Bill is concerned with union membership and non-membership. It is not about membership of professional associations. It is concerned with the closed shop, which is generally understood as a colloquial term meaning a union membership agreement.
While it is true that individuals who practise at the Bar are required to be members of the General Council of the Bar, that cannot properly be described as a closed shop agreement. Quite clearly, the Bar Council is not a trade union.
Noble Lords: Oh!
Lord Strathclyde: Perhaps I may explain that. The Bar Council is not covered by the statutory definition of a trade union contained in Section 28 of the then Labour Government's Trade Union and Labour Relations Act 1974, nor are practising barristers and solicitors workers within the definition laid down by Section 30 of that Act.
As Members of the Committee are aware, there are a number of professions where membership of the relevant association is the established test of professional competence and standards of ethical conduct. This amendment may be inspired by a

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mistaken belief on the other side of the Committee that entry to the professions is restricted to members of the relevant professional associations. That is not invariably so, though the noble Lord, Lord McCarthy, indicated that. It is not necessary to be a member of the Law Society to practise as a solicitor or to be a member of the BMA to practise as a doctor.
But what is the relevance of this to the Bill? It is rarely the case that these professional associations are also trade unions. Where they are, as in the case of the BMA, membership of them will be regarded in the same way as membership of any other trade union for the purposes of the Bill. The Government cannot accept for one moment the Opposition's attempt to suggest that trade unions and professional associations are the same thing. It cannot be sensible to suggest that there is any real comparison between the functions of, say, the National Union of Mineworkers and the Bar Council.
In addition, the Government believe that the amendment would undermine the established procedures for becoming eligible to practise and for maintaining professional standards in the professions. It would also produce some extraordinary results. I thank the noble Lord, Lord Rochester, for making the Committee aware of that. As he mentioned, under this amendment a firm of accountants would not be allowed to refuse to employ an applicant who is not a member of one of the recognised accountancy bodies, when the relevant statute —passed, I may say, by a Labour Government—requires the auditors of companies and trade unions to be members of those bodies.
Also, most professional associations differ from trade unions in being associations of self-employed individuals. Clause 1 does not relate to the self-employed and is therefore a quite inappropriate vehicle for dealing with such associations. In any event, the Bill is concerned with access to employment and not with the right to practise as a member of a profession. It is abundantly clear that the Bill is not an appropriate means for regulating entry to the professions. I suspect that the noble Lord, Lord McCarthy, was teasing the Committee with this amendment and I very much hope that he will withdraw it.
Lord Dean of Beswick: As the Minister made no reference to it, does he totally discount the relevance of the remarks made by his noble friends Lord Boyd-Carpenter and Lord Caldecote?
Lord Strathclyde: No, I simply believe that the noble Lord, Lord Dean of Beswick, misunderstood what my noble friends were saying. Both of them said that this was an extraordinary amendment and I entirely concur with that.
Lord McCarthy: I am not surprised that the Committee has been teased in this way. One should begin by looking at what the amendment says in the context of the Bill. If you are excluded from a job or you cannot get one simply on the ground that you are not a member of a professional association, you get compensation. That is what the amendment says. It is
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not that the employer should not ask if you are qualified or be prevented from employing fully-qualified people, or that he should employ naval architects who are not naval architects. If a naval architect who is fully qualified and has passed all the examinations but is no longer a member of the professional association is excluded from employment, that individual should be given compensation. That is all the amendment suggests.
As far as I can see, the noble Viscount, Lord Caldecote, the noble Baroness, Lady Seear, and the noble Lords, Lord Rochester, Lord Boyd-Carpenter and Lord Campbell of Alloway, have three arguments. Very often they were just arguments by declaration: what a foolish thing to say and what a ridiculous suggestion; how presumptuous and what cheek; what I say three times is true. Those are not arguments.
We move on to the second argument, which is that professional associations are different. I did not say that they were the same as trade unions. They are entirely, completely and absolutely different; that must be the argument. They focus on quality and examinations; they never attempt to restrict competition; the professional associations do not regulate in the interests of their members. I suggest that the Committee knows that that is not so. Ministers in another place have accepted that that is not so. Therefore, as Members of the Committee on this side of the Chamber have said, there are similarities between professional associations and trade unions.
The third argument is that this way—the way that it is done with the Bar Council and the way that it is done with veterinaries—is the only way to observe standards. But once again, if the Committee thinks about it, it is not the only way. It is not the way that we do it with doctors. Goodness knows, they have to be qualified, they have to be examined and they can be disciplined; but they do not have to be members of the BMA. It is not the way that we do it with lawyers. It is the way that we do it with half the legal profession but not the other half. Indeed, the noble and learned Lord the Lord Chancellor proposes in some way to modify the monopoly of barristers. There are other ways of doing it. If there are other ways of doing it, why should we not in fact say that this amendment should cover professional associations?
There is a defendable position and I offer it to the Minister. If he were to say, "Yes, we know that professional associations regulate entry and training; we know that they are there just as much as the AEU or the TGWU to look after the interests of their members, but that is not the only thing they do; we will accept an amendment giving protection if it can be shown that the object of a rule of an association is the protection of quality, examinations or standards, but anything to do with training interests and the removal of competition should be against the law", he would have a defendable position. If he said that that should apply to trade unions he would have a very defendable position. But that is not what the Government say and that is certainly not what the Minister says.

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The Minister has rather different arguments. He says to me, "It is all right. There is nothing wrong with this. It is fair to trade unionists and it is also fair to non-unionists, so why are you putting down an amendment?" I have done so because it is not fair to members of professional associations and nonmembers of professional associations. It discriminates against people who want to drop out or do not want to join professional associations. That is the sense in which it is not fair.
The Minister also says to me that this is a Bill about trade unions. We have had this argument over and over again. The noble Lord knows very well that we trot along to the authorities upstairs to put down amendments. We are given a wonderful stopper. We are told that what we propose is outside the Long Title of the Bill. We are told that we cannot talk about something because it is not the aim, intention and objective of the Bill. We are told that it is not in the Long Title. But we have not been told that this time. We have not been told that to put down an amendment on professional associations is outside the Long Title of the Bill. There is therefore no reason in parliamentary terms why we should not have this amendment.
Finally, the Minister gives me what I suppose logicians would call some kind of excluded middle. He says, first, that closed shops are what unions do; secondly, that the Bar Council is not a trade union; and, thirdly, that therefore the Bar Council's closed shop is not a closed shop. He can do better than that.
On Question, amendment negatived.
3.45 p.m.
Lord Rochester Lord Rochester moved Amendment No. 2:
Page 1, line 7, at end insert:
("(b) because he has engaged in normal trade union activities; or").
The noble Lord said: In moving this amendment I should first like to make it plain that I fully support the Government's decision to bring the pre-entry closed shop to an end. My party's opposition to it is of long standing and we were in advance of the Government in proposing that it should be outlawed. Equally, I applaud the Government's decision to make it as unlawful for someone to be denied employment because he is a trade union member as because he is not. The Government have reached that conclusion late in the day but it is nonetheless welcome as far as it goes.
I put it like that because in my view a person should be denied employment no more because in a previous employment he has engaged responsibly in trade union activities than because he is a union member. The aim of this amendment is to include that principle in the Bill.
Clearly, there is a difficulty in defining the nature of activities that should be acceptable for this purpose. "Responsible", "reasonable" and "legitimate" are words that come to mind. I have chosen the word "normal" best to describe what I have in view. In using that word I readily acknowledge that an employer has
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every right to refuse employment to, shall we say, a "Red Robbo" who has a record of causing disruption in a previous employment. But I do not see why someone should be denied a job simply because as a responsible citizen he has engaged in ordinary trade union activities as a union member or union representative.
Section 58(1) (b) of the Employment Protection (Consolidation) Act 1978 makes it plain that dismissal from employment is unfair if it occurs because an employee has taken part in union activities. But there is no corresponding safeguard in relation to recruitment. The amendment seeks to make good that omission. If someone who is currently in employment cannot be dismissed because of his trade union activities, should it not be equally unlawful to discriminate against him as a potential recruit because of his previous union activities? Why should it be possible for an employer to say to someone, "I don't mind your being a union member but I don't want to employ you because you have been an active trade unionist"?
The Minister will no doubt say that a person who has a complaint on those grounds can take his case to an industrial tribunal. But the Bill does not say so. Why should not a further ground be added to those in subsection (5) of Clause 1 of the Bill to the effect that it is unlawful to refuse employment to a person because he has engaged in normal trade union activities? It may well be said that there are problems associated with the use of the word "normal" to define the activities which should be acceptable to a prospective employer. It may also be said that I have not gone the right way about incorporating what I have in mind into the Bill. I readily accept that there may be drafting deficiencies in the amendment. But the principle underlying it must be clear enough. I suggest that at this stage it is the principle with which the Committee should be concerned. I beg to move.
Baroness Turner of Camden: On behalf of this Bench I rise to support the amendment. It is very similar to an amendment put down by the Opposition. I prefer our wording but the noble Lord's amendment is first before the Committee.
The Bill as it stands contains the right to belong or not to belong to a trade union. But belonging is simply a passive state. Unions, generally speaking, want their members to be as participative as possible. I cannot emphasise enough, though Members of the Committee on the Government Benches may not agree, that unions are democratic organisations. To be effective, democracy needs active participation. It should not be possible to debar from employment someone who has been active in a trade union with a previous employer. If the amendment were accepted that would be impossible.
I need hardly say that the right to belong to a union is enshrined in Article 2 of the Freedom of Association and Protection of the Right to Organise of the ILO, Convention 87. It states:

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"Workers and employers, without distinction whatsoever, shall halve the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation".
However, Article 11 goes further and says that each member country of the ILO, in this case the United Kingdom,
"undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise".
Clearly, one cannot exercise the right to organise without indulging in some activity. Meetings have to be called, local leaderships established, and so on. Many good employers recognise this fact. They understand that it is in their interests that any employee organisation which they organise should be as representative as possible. Such employers will often provide facilities for meetings and will encourage able employees to become representatives. Some of them, even if they do not make facilities available during working hours, will certainly do so immediately afterwards so that as many people as possible can attend meetings on the firm's premises. Many such employers recognise the value of active trade unionists in their employ also being active in the wider organisation of the union outside the workplace and will assist those who wish to stand for election or attend annual policy-making conferences.
The amendment does not ask for such facilities. However, it spells out that it is not just a question of belonging; there is also a right to engage in normal trade union activities. I hope that the Government will agree with that assertion and I look forward to hearing from the Minister that he is prepared to accept what is proposed in principle, even if he does not care for the present wording.
Lord Monkswell: In rising to express my support for this amendment I should like to make two points. The first is consequent upon the speech made by the mover of the amendment during which he referred to the activities of a particular individual in the trade union movement and said that that sort of activity was not normal. He led us to believe that such activities could be used as an excuse for blacklisting a person. In my view that statement needs to be rebutted. I should like to elaborate a little on that aspect of the matter.
The second point that I wish to make may come as a surprise to Members of the Committee on the opposite side of the Chamber. Normal trade union activity—and by that I mean active trade union activity rather than inactivity—can actually be a spur to improvements in management. To start with, the individual referred to by the noble Lord, Lord Rochester—namely, "Red Robbo", though I prefer to refer to him as Derek Robinson—was the senior trade union convener of the British Leyland Motor Corporation or British Leyland (I cannot remember which title is the correct one) at the time in question. The company was faced with a change in direction. Up until that time it was always assumed that British Leyland wanted to be involved in the mass production of motor cars and that it wanted to be a significant
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mass producer of motor cars. Every activity of the management, of the union and of the British Government was aimed at that endeavour.
However, a change in direction was called for by Michael Edwardes, or "Mick the Knife". The proposed change was to cut the production capacity of British Leyland to below 1 million motor cars a year. It was accepted by academics, by leading professionals in the motor industry and, following studies, by the trade unions that there was no future as an independent manufacturer for any mass producer of motor cars whose production fell below 1 million a year. Therefore, the decisions being made by management—admittedly with the backing of the Government—to reduce the production capacity of British Leyland to below 1 million motor cars per year were effectively signing the death warrant of that manufacturer as an independent producer.
Derek Robinson happened to be the union leader who projected that argument. He received support from the workers in the company. They supported him enough in his argument to go on strike. Because there was a major change taking place in that organisation which was backed by the Government, some mechanism had to be found to contain the opposition, if I may put it that way. That mechanism was the leadership of his trade union repudiating him. In my view it was a very unfortunate action to take at the time. I also think that it is most unfortunate that the truth did not emerge at the time and that the British public was not able to make a realistic judgment on the matter. I say that because not only did the leadership of his union repudiate him but he was also vilified in the public press and by the media.
However, that happened some years ago. It is interesting to note that we now have a situation where the arguments which Derek Robinson put forward as the truth for the future of British Leyland have been fully realised. Because of the reduction in production capacity, British Leyland ceased to be a mass producer of motor cars on the world stage. It has lost its independence. Indeed, it could not exist on its own. It has been carved up by successive governments and is now part of another company. It has almost lost its identity. The fact that it is now virtually half Japanese is neither here nor there.
The point that I am trying to make is this. An action that can be construed as normal trade union activity in the context in which it is engaged in should never be used in the future as an excuse for blacklisting and not employing the person concerned. I say that because circumstances change. What I have said is especially true if the person is right. It is a terrible reflection upon our society if we say that people who are right but who were presumed wrong at the time of the event should have their apparent sins follow them for the rest of their working life.
In conclusion, I shall change the argument slightly. I should like to say a few words about how normal, active trade unionism can actually improve management practice. A few years ago, I heard the story of how an active regional official of a trade union in the engineering industry set about promoting trade union

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training schemes; that is, the training of shop stewards and branch secretaries. He was very successful in organising these training courses.
The effect of his endeavours was that the people involved in trade union activity improved considerably. They became better debaters and better counsels for their members as regards disputes with employers. They were winning the arguments against their opposite numbers—the line managers or the personnel managers. The result was that companies also had to engage in extra training. The training was not just in respect of how to counter the arguments of the trade unions; it was in terms of good personnel and management practice. The companies involved improved their managerial functions as a direct result of normal trade union activity. It is wrong to think of trade union activity as being negative.
I have two reasons for speaking today on some of these subjects. The first is that I want to ensure that we look at the whole subject from the point of view of projecting fairness; and the other is to ensure that we recognise the immense importance and the practical benefits to our society which come from encouraging good trade union practice.
4 p.m.
Lord Campbell of Alloway: With respect to the noble Lord, Lord Rochester, I oppose Amendment No. 2, although I understand what he is driving at. Clause 1(1) (a) is wholly clear, explicit and sufficient to carry the principle of the Bill for all practical purposes. The effect of the proposed addition would only be confusion. I agree with the noble Lord, Lord Monkswell, that one should not have a negative attitude to trade unions or their activities. I do not have a negative attitude; but I ask the noble Lord, Lord Rochester: what is the difference between normal and abnormal trade union activity? There is no definition anywhere.
One can argue about that issue in a court of law with expert witnesses from the trade unions as to what is normal and what is abnormal. It is wholly impractical. That is the point that I seek to make.
The amendment is grouped with Amendment No. 9. As a result one has, with respect to the noble Baroness, another type of confusion and impracticability. Again, the amendment as drafted is not workable. One has to take into account that it is unlawful to refuse to employ a person because he has taken lawful activities or proposes to take them. Let us pause for a moment and consider the type of evidence that is needed to enable an industrial tribunal to resolve the issue. It is a theoretical issue.
If the amendment is put to a Division, I urge the Committee not to accept it. It is right to speak to both amendments, with respect, because they are grouped, but one is bad in one way and the other is bad in another way. They are both impracticable and unworkable and would import untold confusion.
Lord Taylor of Gryfe: If the amendment is pressed to a Division I shall support it because of its intention. Like the noble Lord, Lord Rochester, I am opposed to
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the idea of the closed shop. As a member of the British Railways Board I recall that we had one or two railwaymen who refused to join a union and contributed their dues to charity. When operating a closed shop, there is frequently a conspiracy between the union and the employer. The employer often says, "Don't let us have any trouble because two or three people have a sensitive conscience. Therefore let us impose the closed shop and thereby avoid any industrial dispute".
The men involved were sacked and took British Rail, whose chairman presently sits on the Cross-Benches, to the European Court to protect their position. We are not discussing the closed shop. We are discussing the ability of people to exercise their trade union rights. The trouble, as has been pointed out by the noble Lord, Lord Monkswell, lies in defining what is normal. He said that Mr. Robinson's activities were normal trade union activities. The noble Lord, Lord Rochester, said that he would not regard Mr. Robinson's activities as normal trade union activities. That is the difficulty.
If some form of words can be found to overcome that difficulty, I shall be happy. At the moment there is a conspiracy in some quarters to blacklist people who have good trade union records. I was interested to read that the other place is now examining the activities of the Economic League. Employers subscribe to the Economic League, which in return will give them lists of people who should not be employed because they have been militant trade unionists or are suspected of having been militant trade unionists. That is an abuse of power which must be stopped. If the amendment moved by the noble Lord, Lord Rochester, can help us avoid that abuse of power, I shall support it.
Lord Strathclyde: Clause 1 seeks to ensure that an individual's ability to obtain a job will not be affected by whether or not he is a member of a trade union. That is an important new protection for job applicants—I emphasise that—and it is entirely even-handed since it will make the pre-entry closed shop unenforceable while at the same time providing protection for union members.
At present an employer can lawfully refuse to employ a job applicant merely because he is or is not a trade union member. The Bill will make that unlawful; it will be a genuinely even-handed extension of individual employment rights, protecting union members and non-members alike against discrimination in recruitment. It will mean, for example, that job applicants will be free to belong to a trade union and enjoy certain valuable benefits and services to which membership may entitle them, such as legal, financial, training and pensions services; but equally those who do not wish to belong to a trade union will not suffer discrimination in recruitment because of that. We hope that Members on all sides of the Committee will welcome such an important extension of employment protection. That right has not existed before.
Perhaps I may deal with the amendments. The amendment moved by the noble Lord, Lord Rochester, seeks to make it unlawful to refuse to

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employ an individual on the grounds of normal trade union activities which he has undertaken in previous employment. We need to be clear that Clause 1 deals with the problem where the possibility of getting a job depends upon the status as a member or non-member of a trade union of the individual who is applying for it.
It is quite another thing to deal with the particular activities of an individual, whether inside or outside a trade union. The Government do not accept that that is a valid comparison. We are not concerned with the conduct of individuals and Clause 1 is not about the trade union organisation and representation in the employer's workplace.
The noble Lord has sought to argue that the amendment is framed so as to apply only to normal trade union activities. However, as the noble Lord, Lord Taylor, pointed out, what is normal in any particular context is liable to be a matter of considerable uncertainty and debate in another context.
I can assure the Committee that in the Government's view, the Bill as drafted will protect a job applicant who has engaged in activities that are no more than an ordinary and basic part of being a member of a trade union. That compares quite favourably with the noble Lord's word "normal". I hope that it will also satisfy the noble Lord, Lord Taylor of Gryfe.
The fact is that, whatever the circumstances, anyone who thinks he has been refused employment because he is a member of a trade union will be able to complain to a tribunal, and it will be for the tribunal to decide on the details of the particular case.
If an employer were to say that his reason for refusing an applicant was, for example, because the individual had in the past attended and spoken at union meetings or that he had sought the help of his shop steward in taking up grievances with a previous employer, there is no reason to believe that a tribunal would for a moment accept the attempted distinction between those activities and membership.
What we do not for a moment accept is that employers should be put in a position where they may be unable to refuse employment to an applicant whose past conduct they regard as unacceptable, whether or not that person is a union member. The Government believe therefore that the amendment is inappropriate, because the clause is designed to prevent people being refused employment simply because of their membership status. It is not appropriate to deal with the question of their past activities, whether as a member or non-member of a union.
If the noble Lord's purpose is to protect the ordinary and basic incidents of being a union member, the amendment is unnecessary, because the mere fact of membership carries with it a number of incidental activities which are implicit in that. I hope that the noble Lord will agree with that.
Perhaps I may turn to the points made by the noble Baroness, Lady Turner. It is not entirely clear what activities the amendment seeks to protect, but it
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appears to be concerned with individuals who have undertaken representative functions on behalf of a trade union or who wish to do so in future. In other words, we are talking about trade union officials. Many of the same considerations apply to this amendment as to Amendment No. 2. Clause 1 is simply not concerned to judge the legality or reasonableness of what an individual has done in the past, or what he may do in the future. It is concerned with his status as a union member or non-member.
However Amendment No. 3 goes much further. An employer would, effectively, be obliged to engage an individual who had been an active trade union official in the past and who made it clear that he intended to be an active trade union official in the future. That goes far beyond what we have in existing law. In other words, the employer might be faced with an individual who has a track record of organising industrial action or who makes it clear at his job interview that he intends to establish a powerful union organisation at the place of work. Of course, the employer might have chosen to recognise the union in which the individual intends to be active and be perfectly happy to engage him, in which case well and good. But the Government believe that it is entirely a matter for the employer to decide whether to recognise a particular trade union and to what extent.
4.15 p.m.
Lord Wedderburn of Charlton: I should be most obliged if I could say a word. My noble friend and I were consulting and we have no right to come back at the end.
Lord Strathclyde: The noble Lord has that right.
Lord Wedderburn of Charlton: We thought not. Perhaps I may put the point to the noble Lord. When he spoke about a person's activities as an official, surely he was speaking of something to which our amendment did not necessarily refer. He questioned the meaning of,
"lawful activities on behalf of an independent trade union".
That is the language of Sections 23 and 58 of the Employment Protection (Consolidation) Act 1978. There is absolutely no question of any uncertainty about the boundaries of the amendment in the names of my noble friends and myself.
Lord Strathclyde: Perhaps I misunderstood the noble Baroness when she introduced the amendment. I was not entirely clear what activities the amendment sought to protect. Therefore what I said stands: we do not wish to see an obligation upon employers that they must employ an employee who has quite consistently had an appalling trade union track record of being militant and of organising the kind of activities that would be thoroughly irresponsible in the new company. In other words, that is exactly the way the law stands now.
We have adjusted the law to make it illegal for an employer to refuse to employ somebody because he is a trade union member. That is a big step forward from the current position. I am sure that it has been

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welcomed and that is why the amendment of the noble Lord, Lord Rochester, is unnecessary and why I hope that noble Lords opposite will reject it.
Perhaps I may make one point to the noble Lord, Lord Wedderburn. We are in Committee and therefore he is quite at liberty to come back whenever he wishes on any of his amendments.
Lord Monkswell: The Minister said that the Government were concerned about the status of the job applicant at the time when the application for the job is made. In that respect, the status of being a trade union member is only of practical relevance in terms of the advertisement for the job. If the advertisement says that the job is only open to people who are not union members or who are union members, then the person making the application has effectively a mechanism for saying, "I have been discriminated against".
We are talking about the status of the individual at the time of the job application, but that status is also relevant in terms of his previous trade union activity. That will only be relevant to the new employer if he has information about the applicant's previous trade union activities.
The practical application of either of these amendments would be to deny the use of the blacklisting referral agencies—about which we have heard so much in recent months—by prospective employers. The practical implications of the amendment and the Bill would be significant in that, as the Bill is written, it would not allow job advertisements to say that union membership or non-union membership was a requirement of the job. With the amendment we would prevent the blacklisting organisations from operating. The only evidence needed would be that a blacklisting organisation had been contacted to provide any information and that a person's name was on the list so that the employer could make the decision.
Lord Strathclyde: We shall be able to discuss so-called "blacklisting" later in the Bill when noble Lords opposite will introduce a new clause specifically on that subject.
Perhaps I may make one point to the noble Lord, Lord Monkswell. As I understand it, he feels that an employer should be obliged to take on an employee, whatever his past record has been in industrial relations. Quite frankly, that is unacceptable. I do not believe that I can say anything that could possibly convince the noble Lord that I am correct. However, it cannot be right that an employer should be obliged to take on somebody who is a proven troublemaker.
Lord Rochester: I am grateful to those noble Lords who have taken part in this short debate and particularly to the noble Baroness, Lady Turner of Camden, for her support. It is fair to say that in my opening speech I anticipated a number of the criticisms that could be and have been made about the amendment. That includes the point made by the Minister that someone who has a complaint concerning his past trade union activities has his
138
remedy in being able to go to an industrial tribunal. I made the point, however, that the Bill does not say so. An essential element in the Minister's case, as I understood it, was that the clause as drafted concerns the status of a person and his membership of a trade union rather than his activities. That is indeed the case. That is the crux of the matter. What someone does is more important than what he is.
The noble Lord, Lord Campbell of Alloway, mentioned Amendment No. 3. I did not speak to that amendment advisedly because I am concerned with this amendment. However, as Amendment No. 3 has been mentioned, I should say that in two respects—they have been mentioned in the course of the discussion—my amendment is more modest than Amendment No. 3, which relates not only to union activities that a person has undertaken in previous employment but also to those activities that he or she proposes to undertake in any prospective employment.
Further, in Amendment No. 3 the word "lawful" takes the place of the word "normal" in my amendment. Amendment No. 3 could therefore apply to someone seeking a job who had engaged in activities which were within the law but which in the view of the employer were of a disruptive nature. The question then arises whether the employer should nevertheless be obliged to take on such an applicant. I have already dealt with that point in my opening remarks.
The Minister could have said that he understood what I had in mind although he considered I had gone the wrong way about it. He could have offered to look at the matter again between now and Report in the light of what I have said to see whether he could devise a way in which the principle I have mentioned could be incorporated into the Bill. However, he has not done that. I believe there is a clear difference of principle between the two sides of the Chamber over this matter. Therefore I have no alternative but to divide the Committee.
4.22 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 92; Not-Contents, 123.

Division No. 1

CONTENTS

Addington, L.

David, B.

Airedale, L.

Davies of Penrhys, L.

Alport, L.

Dormand of Easington, L.

Ardwick, L.

Ennals, L.

Attlee, E.

Ewart-Biggs, B.

Aylestone, L.

Falkland, V.

Birk, B.

Gallacher, L.

Blease, L.

Galpern, L.

Bonham-Carter, L.

Gladwyn, L.

Bottomley, L.

Glasgow, E.

Campbell of Eskan, L.

Glenamara, L.

Carmichael of Kelvingrove, L.

Graham of Edmonton, L.

Carter, L.

Gregson, L.

Cledwyn of Penrhos, L.

Grey, E.

Clinton-Davis, L.

Grimond, L.

Cocks of Hartcliffe, L.

Hampton, L.

Cudlipp, L.

Hanworth, V.

139

Harris of Greenwich, L.

Nicol, B.

Hollis of Heigham, B.

Oram, L.

Hooson, L.

Park of Monmouth, B.

Houghton of Sowerby, L.

Peston, L.

Hughes, L.

Phillips, B.

Hunt, L.

Pitt of Hampstead, L.

Hutchinson of Lullington, L.

Prys-Davies, L.

Jay, L.

Richard, L.

Jeger, B.

Rochester, L.

Jenkins of Hillhead, L.

Roll of Ipsden, L.

Jenkins of Putney, L.

Russell, E.

John-Mackie, L.

Sainsbury, L.

Kirkhill, L.

Seear, B.

Leatherland, L.

Serota, B.

Listowel,, E.

Shackleton, L.

Llewelyn Davies of Hastoe, B.

Stallard, L.

Lloyd of Kilgerran, L.

Stedman, B.

Lockwood, B.

Stoddart of Swindon, L.

McCarthy, L.

Strabolgi, L.

McIntosh of Haringey, L.

Taylor of Blackburn, L.

Mackie of Benshie, L.

Taylor of Gryfe, L.

Mason of Barnsley, L.

Tordoff, L.

Mayhew, L.

Turner of Camden, B.

Mellish, L.

Wallace of Coslany, L.

Milner of Leeds, L.

Walston, L.

Mishcon, L.

Wedderburn of Charlton, L.

Monkswell, L.

White B.

Morris of Castle Morris, L.

Williams of Elvel, L.

Murray of Epping Forest, L.

Wilson of Rievaulx, L.

NOT-CONTENTS

Aldington, L.

Gardner of Parkes, B.

Alexander of Tunis, E.

Gibson-Watt, L.

Allerton, L.

Gray of Contin, L.

Ampthill, L.

Greenway, L.

Annaly, L.

Gridley, L.

Arran, E.

Henley, L.

Auckland, L.

Hesketh, L.

Balfour E.

Hives, L.

Belhaven and Stenton, L.

Holderness, L.

Beloff, L.

Home of the Hirsel, L.

Belstead, L.

Hood, V.

Bessborough, E.

Hooper, B.

Blake, L.

Howe, E.

Blatch, B.

Hylton-Foster, B.

Boyd-Carpenter, L.

Johnston of Rockport, L.

Brabazon of Tara, L.

Joseph, L.

Bridgeman, V.

Killearn, L.

Butterworth, L.

Kimball, L.

Caldecote, V.

Kinnaird, L.

Campbell of Alloway, L.

Layton, L.

Carnegy of Lour, B.

Lloyd-George of Dwyfor, E.

Carnock, L.

Long, V.

Cavendish of Furness, L.

Lucas of Chilworth, L.

Clinton, L.

Lurgan, L.

Clitheroe, L.

McColl of Dulwich, L.

Cockfield, L.

Mackay of Clashfern, L.

Constantine of Stanmore, L.

Margadale, L.

Cork arid Orrery, E.

Marshall of Leeds, L.

Cottesloe, E.

Merrivale, L.

Cox, B.

Mersey, V.

Craigton, L.

Monk Bretton, L.

Crook, L.

Morris, L.

Cross, V.

Mottistone, L.

Cullen of Ashbourne, L.

Mountevans, L.

Davidson, V. [Teller.]

Mowbray and Stourton, L.

Denham, L. [Teller.]

Murton of Lindisfarne, L.

Downshire, M.

Nelson, E.

Eccles, V.

Newall, L.

Ellenborough, L.

O'Brien of Lothbury, L.

Elles, B.

Orkney, E.

Elliot of Harwood, B.

Orr-Ewing L.

Elliott of Morpeth, L.

Oxfuird, V.

Erne, E.

Pearson of Rannoch L.

Erroll, E.

Pender, L.

Erroll of Hale, L.

Porritt, L.

Exeter, Bp.

Pym, L.

Ferrers, E.

Quinton, L.

Fortescue, E.

Rankeillour, L.

Fraser of Kilmorack, L.

Reay, L.

140

Rees, L.

Sudeley, L.

Renton, L.

Swinfen, L.

Renwick, L.

Swinton, E.

St. Aldwyn, E.

Teviot, L.

Sanderson of Bowden, L.

Thurlow, L.

Seebohm, L.

Tranmire, L.

Selkirk, E.

Trefgarne, L.

Sharples, B.

Trumpington, B.

Stodart of Leaston, L.

Ullswater, V.

Strange, B.

Vaux of Harrowden, L.

Strathclyde, L.

Wise, L.

Strathmore and Kinghorne, E.

Young, B.

Strathspey, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.30 p.m.
[Amendment No. 3 not moved.]
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 4:
Page 1, line 12, at end insert ("or
(iii) to accept a condition that his terms and conditions of employment shall not include a trade union representation clause").
The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 9.
These amendments are all about the right of an individual to seek to have representation by the union of his choice at his place of employment. As already indicated, the right simply to belong to a union is a somewhat empty right if nothing else goes along with it, not even the right to have activity. People belong to unions in order to have issues that arise at work handled on their behalf. When recruiting among non-unionists, the question asked is, "What can the union do for me?" Unions want to achieve full collective bargaining rights, procedure agreements, facilities and all the rest of it.
However, there may well be situations in which the employer does not recognise the right of the union to bargain collectively for all his employees. There may be reasons for that, but there is no reason why the right of at least representation should not be afforded to an employee who wants to belong to a union or who belongs to a union. That was quite common in the industries for which I was responsible when I was a full-time union official. Some large companies which did not recognise the union were at least prepared to see a union official if a member of the union had a problem, was under discipline or about to be made redundant or had a grievance and wanted representation.
Many trade unionists seeking employment elsewhere would like to be assured when taking a new job that if there is future difficulty they can call in their union officer and the company will not refuse to see him or her and will deal with the individual issue in a reasonable way. That is why we have put down the amendment. It would be wrong for an individual who made such a request at a job interview to be refused employment because that is what he had asked for and that is what he wanted, even in situations where the company did not itself recognise the union for collective bargaining purposes.
That is why we have also tabled Amendment No. 9, which contains the reference to a trade union

141
representation clause and sets out precisely what is meant by representation on an individual basis. It refers to representation on:
"matters concerning discipline, dismissal or other dispute or grievance connected with his employment, by an official of an independent trade union of which he is a member who represents him within the meaning of section 15 of the Trade Union and Labour Relations Act 1974".
I beg to move.
Lord Rochester: If the noble Baroness understands, my difficulty with the amendment is its insistence, as I see it, that even in companies which do not recognise trade unions the employer has to accept that in matters concerning any dispute or grievance employees should have a statutory right to be represented by a union official. As I see it, it is one thing that in such cases an employee should have what might be called a prisoner's friend. It is another that that friend should, even in non-union firms, necessarily be a union official. With respect, I suggest that that is to go further than may be reasonable in the circumstances.
Lord Strathclyde: Like the noble Baroness, Lady Turner of Camden, I shall speak to both Amendments Nos. 4 and 9.
Perhaps I may begin by making no apology for saying yet again that Clause 1 is concerned with trying to ensure that an individual's ability to obtain a job is not affected by the question of whether or not he is a member of a trade union. To that end, subsection (1) quite properly makes it unlawful for an employer to refuse employment to an individual because he will not accept a requirement to join or leave a union after starting work or to make payments in lieu of being a union member. The requirement that the noble Baroness seeks to add in Amendment No. 4 is a very different proposition, although I admire her ingenuity in fitting a right to trade union representation into this particular part of the Bill.
The ACAS code of practice on disciplinary practice and procedures in employment recommends that disciplinary procedures should provide for employees to be represented if they wish. Lack of such provision is therefore a matter that an industrial tribunal must take into account, for example, in a case of alleged unfair dismissal. However, I firmly believe that it is for employers to decide the precise content of disciplinary procedures in the light of the ACAS code of practice and their own circumstances.
Where a union is recognised for collective bargaining purposes, it is sensible and no doubt normal practice for its members to be entitled to be represented by a union official in disciplinary matters. However, the code does not say that there should be trade union representation in every case. No doubt recognising that many employees—and today of course it is a majority and increasing—do not belong to trade unions, that a trade union may not be recognised by the employer or even that the employee may decide to be represented by someone else, the code says that as an alternative to trade union
142
representation the employee should have the right to be represented by a fellow employee of his or her choice.
The Government see no need to go beyond the provisions of the ACAS code of practice. It is open to a trade union which is not recognised for collective bargaining purposes to seek to agree with an employer individual representational rights for its members. I understand that arrangements of that kind are quite common. I cannot agree that it should be made unlawful for an employer to decline to include a right to trade union representation in a job candidate's future terms and conditions of employment, which would be the effect of the amendment. The Government can see no reason to impose a right of trade union representation by statute, and certainly not in the context of Clause 1 of the Bill, which is concerned with protecting an individual from being refused employment because of his status as a trade union member or non-member.
I cannot accept this amendment and trust that the noble Baroness will withdraw it.
Baroness Turner of Camden: I am not surprised at the Minister's response, although I am rather disappointed by it because I had thought that he would look at the wording of the amendment and adopt a rather more constructive attitude to it. The amendment states that it should be unlawful to expect an individual going for a job to accept a condition that his terms and conditions of employment shall not include a trade union representation clause. In other words, if someone who has been used to having trade union representation in his previous employment goes along and tells an employer when he is interviewed for a job, "Look, I've been used to being represented by my union and when I come here I should like the right of individual trade union representation", and he is refused a job on those grounds, it should be regarded as unlawful.
I am glad that the Minister referred to the ACAS code; but, on the other hand, the code quite clearly involves the right of individual representation. It also makes clear that the individual has a right to choose to be represented either by a fellow employee or, as is good practice, by a union official, if he so chooses. No one says that the employee must be represented whether or not he is a union member. That is a matter entirely for the individual's choice and desire when he is recruited to a new job. I find the response of the Minister most unhelpful. If he did not like the wording at least he could have accepted the principle involved. He did not do so. Therefore in my view I have no alternative but to test the feeling of the Committee on the amendment.
4.40 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 62; Not-Contents, 132.

Division No. 2

CONTENTS

Alport, L.

Leatherland, L.

Ardwick L.

Listowel, E.

Birk, B.

Llewelyn-Davies of Hastoe, B.

Blackstone, B.

Lockwood, B.

Blease, L.

McCarthy, L.

Bottomley, L.

McIntosh of Haringey, L.

Broadbridge, L.

Mason of Barnsley, L.

Bruce of Donington, L.

Mellish, L.

Campbell of Eskan, L.

Milner of Leeds, L.

Carmichael of Kelvingrove, L.

Mishcon, L.

Carter, L. [Teller.]

Molloy, L.

Cledwyn of Penrhos, L.

Morris of Castle Morris, L.

Clinton-Davis, L.

Murray of Epping Forest, L.

Cocks of Hartcliffe, L.

Nicol, B.

Cudlipp, L.

Oram, L.

Davies of Penrhys, L.

Peston, L.

Dormand of Easington, L.

Phillips, B.

Ennals, L.

Pitt of Hampstead, L.

Ewart-Biggs, B.

Richard, L.

Gallacher, L.

Roll of Ipsden, L.

Glenamara, L.

Shackleton, L.

Graham of Edmonton, L. [Teller.]

Stoddart of Swindon, L.

Strabolgi, L.

Hollis of Heigham, B.

Taylor of Blackburn, L.

Houghton of Sowerby, L.

Taylor of Gryfe, L.

Hughes, L.

Turner of Camden, B.

Jay, L.

Wallace of Coslany, L.

Jeger, B.

Wedderburn of Charlton, L.

Jenkins of Putney, L.

White, B.

John-Mackie, L.

Williams of Elvel, L.

Kennet, L.

Wilson of Rievaulx, L.

Kirkhill, L.

NOT-CONTENTS

Addington, L.

Falkland, V.

Aldington, L.

Ferrers, E.

Alexander of Tunis, E.

Fortescue, E.

Allenby of Megiddo, V.

Fraser of Kilmorack, L.

Allerton, L.

Gardner of Parkes, B.

Ampthill, L.

Gibson-Watt, L.

Annaly, L.

Glasgow, E.

Arran, E.

Gray of Contin, L.

Attlee, E.

Greenway, L.

Auckland, L.

Grey, E.

Aylestone, L.

Gridley, L.

Balfour, E.

Grimond, L.

Beaverbrook, L.

Hanworth, V.

Beloff, L.

Henley, L.

Belstead, L.

Hives, L.

Bessborough, E.

Home of the Hirsel, L.

Blake, L.

Hood, V.

Blatch, B.

Hooper, B.

Bonham-Carter, L.

Howe, E.

Boyd-Carpenter, L.

Hylton-Foster, B.

Brabazon of Tara, L.

Johnston of Rockport, L.

Brougham and Vaux, L.

Joseph, L.

Caldecote, V.

Kimball, L.

Campbell of Alloway, L.

Kinnaird, L.

Carnegy of Lour, B.

Layton, L.

Carnock, L.

Lloyd of Kilgerran, L.

Cavendish of Furness, L.

Lloyd-George of Dwyfor, E.

Clinton, L.

Long, V.

Constantine of Stanmore, L.

Lucas of Chilworth, L.

Cork and Orrery, E.

Lurgan, L.

Cottesloe, L.

McColl of Dulwich, L.

Cox, B.

Mackay of Clashfern, L.

Craigton, L.

Mackie of Benshie, L.

Crook, L.

Margadale, L.

Cross, V.

Marshall of Leeds, L

Cullen of Ashbourne, L.

Mayhew, L.

Davidson, V. [Teller.]

Merrivale, L.

Denham, L. [Teller.]

Mersey, L.

Downshire, M.

Monk Bretton, L.

Elles, B.

Morris, L.

Elliott of Morpeth, L.

Mottistone, L.

Erne, E.

Mowbray and Stourton, L.

Erroll, E.

Munster, E.

144

Murton of Lindisfarne, L.

Stodart of Leaston, L.

Nelson, E.

Strange, B.

Newall, L.

Strathclyde, L.

O'Brien of Lothbury, L.

Strathmore and Kinghorne, E.

Orkney, E.

Strathspey, L.

Orr Ewing, L.

Sudeley, L.

Park of Monmouth, B.

Swinfen, L.

Pearson of Rannoch, L.

Swinton, E.

Pender, L.

Teviot, L.

Porritt, L.

Thomas of Gwydir, L.

Prior, L.

Thurlow, L.

Pym, L.

Tordoff, L.

Quinton, L

Tranmire, L.

Rankeillour, L.

Trefgarne, L.

Reay, L.

Trumpington, B.

Renwick, L.

Ullswater, V.

Rochester, L.

Vaux of Harrowden, L.

Russell, E.

Walston, L.

Sainsbury, L.

Wise, L.

Sanderson of Bowden, L.

Wynford, L.

Sandys, L.

Young, B.

Seear, B.

Zouche of Haryngworth, L.

Seebohm, L.

Stedman, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.48 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 5:
Page 1, line 12, at end insert ("; or
(c) because he requires the presence, in order to assist in negotiating the terms of the employment, of an official of an independent trade union of which he is a member.").
The noble Lord said: This amendment would have the effect of spelling out part of the meaning of trade union membership by making it unlawful to refuse to allow the official of an independent trade union to accompany the applicant for employment. In a sense the amendment tests out the last part of the Government's meaning and conversion to the defence of trade union membership in this context.
As my noble friends have mentioned, unlike non-membership, membership of a union is an active condition. The manner in which work is obtained with some semblance of bargaining capacity with the employer who controls the workplace is an active matter. One occasion when the worker has great need of that freedom of association in action is the moment of hiring. That point has recently been recognised by the courts under existing legislation relating to dismissal. In a recent judgment in the case of Discount Tobacco & Confectionery Ltd. v. Armitage in 1990 Mr. Justice Knox heard the case of an employee who had been dismissed as unsuitable. The Minister might take note of the facts of that case because it is a very good example of reasons which apparently do not refer to trade union membership or activities. The employee was said to be unsuitable. The tribunal found that that related to her demand to have the help of her union official in a dispute about the terms of her original contract of employment.
The 1978 Act provides that the dismissal of an employee by an employer is unfair if the principal reason for such dismissal is that the employee:
"was, or proposed to become, a member of an independent trade union".

145
The Employment Appeals Tribunal took the view that because she had demanded the union official to accompany her she had been dismissed. Perhaps I may quote the judgment of Mr. Justice Knox. It puts the matter more concisely than I can. He stated at page 16 of the Industrial Relations Law Reports:
"[Counsel] drew a distinction between membership of the union, on the one hand, and resorting to the services of a union officer to elucidate and negotiate the terms of employment, on the other, and he accepted that there was evidence of the latter but said that it did not or could not amount to evidence of the former, membership of the union".
The judge was not convinced of that distinction. He stated in this most important passage:
"In our judgment, the activities of a trade union officer in negotiating and elucidating terms of employment is, to use a prayer book expression, the outward and visible manifestation of trade union membership".
He stated that it is an incident of union membership without which the protection in the Act would be reduced almost to vanishing point.
I wondered whether we would hear the Minister state, before I moved the amendment—in which case I would not have moved it—that a similar provision is within the inner core relating to trade union membership. I do not recall his exact phrase. However, I was not sure that he said that. When an employee says, "I want my trade union official to accompany me to help me elucidate and negotiate the terms of employment" (to use the judge's phrase) I was not sure whether the Minister was saying that that was part of trade union membership, was a matter that the employer could treat as objectionable, or was even characteristic of "a proven troublemaker". If the employer has the choice to treat it as the latter, there is very little protection left in the Bill. In other words, the amendment tests how far the Government intend the protection to be effective in real life and not simply in a theoretical debate.
If the Government say that the amendment is unnecessary and that the provision is already included in the Bill, I suggest that they think again. There are those who criticise Mr. Justice Knox's interpretation of Section 58 of the existing Act. It would be nice to have the matter clear. Indeed with a Bill before this Chamber, such clarification would save litigation. If they resist the amendment on the ground that such a situation is not within the inner core of the meaning of trade union membership, then we must ask them to set out a list—it will not be very long—of the type of activities that they include within the phrase "trade union membership". Or can one simply say, "I am a trade union member," and that will be that?
I hope that the Minister will state that the amendment is acceptable in spirit. He will no doubt wish to improve on its words. I beg to move.
Lord Strathclyde: I think that I shall disappoint the noble Lord because there is not a great deal that I can add to my comments on Amendments Nos. 4 and 9. It must be true to say that the Government cannot possibly accept the premise of this amendment that it should be unlawful for an employer to refuse a person
146
employment because he requires a representative of his union to be present to assist in negotiating his terms of employment.
However, that has nothing to do with the greater definition of what is or what is not normal trade union activity. I suggest that it is an extraordinary notion that a job applicant should have a statutory right to take a trade union official along with him to a recruitment interview. Once again I believe that it shows that the Opposition are much less concerned with the position of members of non-independent unions or non-members of unions. However, it would be more even handed but no less bizarre if the proposed right allowed the job applicant to be accompanied by a friend or adviser who may or may not be a trade union official.
It would clearly be absurd to legislate on who may or may not be present to hold the applicant's hand at a job interview. That must be up to the employer and the prospective employee to decide among themselves. I therefore hope that the noble Lord will agree to withdraw the amendment, and to see this amendment for what it is.
Lord Wedderburn of Charlton: Two important matters arise from the Minister's brief reply. He criticised us courteously and I must return the same. In his opening remarks he made the error of referring to trade union activity. The amendment has nothing to do with trade union activity; it is to do with trade union membership, as the case of Discount Tobacco & Confectionery Ltd v. Armitage shows very clearly. I commend that case to the Minister.
If this provision is not included within trade union membership a very weird situation arises on the statute book. The Minister may well find that his interpretation is translated differently by the courts. It would mean that if the Discount Tobacco case were upheld and were to continue in force, the right to have one's official with one will be part of trade union membership—I do not refer to activity—for dismissal but it will not be part of trade union membership in terms of an application for hiring. That would be absurd. The Government will either have to amend Section 58 or they will have to agree that the other clause of this Bill comes into line.
The position is most extraordinary. If we did not know that the Government work as hard as they do, we would think that they have not done their homework. Section 58 and this Bill should surely be within the same compass of meaning as regards the simple words "membership of a trade union". They should not mean different things.
The Government's vision of trade union membership does not include trade union activities. It does not include activities by union officials on behalf of the member. It does not include all the matters that have been put to them. Their vision includes such a small core of content that one would have to have the Hubble telescope working properly in order to be able to identify it. I am sure that the Minister cannot tell us that there is anything left in trade union membership other than the mere fact of saying, "I happen to be a

147
member". That is not what membership is about in real life employment. It is about being part of a living body of people who have representatives who help them, and to which they contribute.
That is not what the Government mean. We are not surprised. There is no point in pressing the amendment. We have made the meaning of the Government's Bill a little clearer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Strathclyde Lord Strathclyde moved Amendment No. 6:
Page 2, line 16, after ("employment") insert ("of any description").
The noble Lord said: It may be appropriate if I speak also to Amendments Nos. 7, 68, 69 and 70.
This group of amendments was stimulated by an amendment tabled by the Opposition at Report stage in another place, though the opportunity has been taken to clarify certain points at the same time.
Clause 1(5) of the Bill lists the types of conduct that are to be regarded as a refusal of employment. It is intended to prevent an employer from evading the purposes of the clause by attempting to rid himself of an unwanted job applicant other than by means of a straightforward refusal of employment. As drafted, it provides that a person shall be treated as having been refused employment in the circumstances described in paragraphs (a) to (d) of that subsection.
A member of the Opposition in another place brought to the Government's attention the fact that a further set of circumstances should be covered; namely, the situation where an employer makes an offer of employment to an individual but withdraws it before it can be accepted. An offer might be made by an employer, not knowing that the individual concerned is—or is not—a member of a particular union, and then withdrawn as soon as the employer discovered the true position. It is clearly right that that should be treated as a refusal and, by adding a new paragraph (e), Amendment No. 7 achieves that purpose.
Amendment No. 7 makes two other improvements to the clause. First, in combination with Amendment No. 6, it takes the opportunity to make clear that a refusal of employment occurs when the applicant is refused the employment which he seeks. This is necessary to cover cases where a job is offered but is not the job the applicant wants and may well be an inferior one.
For example, an employer who receives an application for a job as a skilled toolmaker from a person who is not a member of union X might refuse him that job but offer him instead a job as an assistant storeman. Clearly, we wished the employer to be covered in that case and not to be able to escape by arguing that he had, after all, offered the applicant a job. Amendment No. 7 seeks to achieve that by referring to employment of the description which the applicant is seeking.
Secondly, paragraph (d) currently refers to a "spurious offer of employment", which is separately defined in the tailpiece to the subsection. It was not,
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however, made clear that the definition was intended to be exhaustive. The relevant part of Amendment No. 7 provides a simple answer by removing the words "spurious offer" and incorporating the words defining such an offer in the paragraph itself. The remaining amendments in the group are entirely consequential to amendment No. 7 and are chiefly concerned with the date on which a refusal of employment is regarded as having taken place.
The Government are grateful to the Opposition for having suggested that there was a possible gap in the coverage of Clause 1. That has resulted in these amendments, which I commend to the Committee. I beg to move.
5 p.m.
Lord McCarthy: This bundle of amendments is unfortunately a mixed bag. We readily accept that many of the amendments, which attempt to deal with points which were raised in another place, make the clause as it stands more acceptable. However, other amendments, and in particular Amendment No. 7, make the clause less acceptable. As the Minister said, in the original version at least one might have said that the word "spurious" was not exhaustively defined. Now the Minister tells us that the definition which is now to be embodied in the Bill because the word "spurious" has been deleted; namely:
"such as no reasonable employer who wished to fill the post would offer",
is an exhaustive definition of the circumstances in which employees can say that they have not been made a fair offer. So long as the offer is better than one which any unreasonable employer who wished to fill the post would offer, it is a fair offer.
We find that an unacceptable definition. We would rather have been stuck with the word "spurious". It is in that context that we should like to ask the Minister to look at our Amendment No. 8, although it is to some extent outdated because it assumes that the word "spurious" will be in the Bill. However, we should like the Minister to consider the substance of what we suggest in that amendment for a later stage. Rather than the vague words:
"such as no reasonable employer who wished to fill the post would offer",
we should like something on the lines of the words that we have suggested in Amendment No. 8. We propose the words:
"where the terms offered are as a whole less favourable than the terms of workers in comparable employment in the trade or industry, or section of the trade or industry in which the employer is engaged, which have been settled by one or more collective agreements to which the parties are employers or employers' associations and independent trade unions which represent in each case a substantial proportion of the employers and workers of the same or similar description in the trade".
We believe that that would give some precision to the rather vague phrase. The phrase as it stands, particularly if it is intended to be exhaustive, does not tell us what the pay should be, whether it should be reasonable, what reasonable means, whether there

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should be any other fringe benefits, or what the hours and conditions should be. If one tries to find a standard one comes back to comparative tests.
The Government will say that they took that out of Schedule 11 of the Employment Protection Act 1975. We know that. The Government will say that we are trying to reintroduce forms of contract compliance. We are not doing that. We say that in this narrow case, since the Government have accepted that the term "spurious offer" is not satisfactory, the even more unsatisfactory exhaustive definition that they seek to put on the face of the Bill needs to be broadened and specified in some way. If the Minister does not like the terms of our amendment I suggest that he should come back with something else at the next stage of the Bill.
Lord Strathclyde: Amendment No. 8 of the noble Lord, Lord McCarthy, was not formally grouped with the government amendments to which I have spoken. However, if it meets with the approval of the Committee, I am more than happy to speak to that amendment.
Lord Rochester: As I see it, Amendment No. 8 deals with a different matter of principle which I had supposed we would discuss at a later stage. However, if it is the general wish of the Committee that the two sets of amendments should be taken together that is acceptable to us.
Lord McCarthy: I am quite prepared to leave the amendment until later in order to give the noble Lord an opportunity to speak to it independently if he would like to do so. Nevertheless, it seems to me that the change that we should like to see in the Government's amendment is contained in Amendment No. 8 and we should deal with the matter now.
Lord Strathclyde: I take it that the Committee is happy that I should speak to Amendment No. 8. I understand why the noble Lord feels that it is closely connected with the government amendments, which were inspired by the Opposition in another place.
Clause 1(5) of the Bill lists the types of conduct that are to be regarded as a refusal of employment. It is intended to prevent an employer from evading the purposes of the clause by attempting to rid himself of an unwanted job applicant other than by means of a straightforward refusal of employment. I hope that the Committee will agree to the government amendments which clarify the subsection by removing the words "spurious offer" and incorporating the words defining such an offer into the relevant paragraph itself. Although that clause will no longer talk of "spurious offers", it continues to mean that an offer of employment which is on terms:
"such as no reasonable employer who wished to fill the post would offer",
and which is not accepted for that reason, is to be regarded as a refusal of employment.
The Government believe that such a provision is essential to block an obvious loophole. An employer might be all too well aware that refusal to engage an
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individual because he was, let us say, a union member would be unlawful, but might seek to avoid employing him by offering him a job on terms which were designed not to be accepted. The employer in such a case might, for example, offer the union member remuneration which was set at a derisory level in the hope that the applicant would decline the offer and withdraw. I am sure that the Committee will agree that such evasion would, if permitted, make a mockery of the clause.
The amendment of the noble Lord, Lord McCarthy, is, however, quite another matter. Its wording might seem familiar to the Committee, who may recall how Schedule 11 to the Employment Protection Act 1975 sought to impose "recognised terms and conditions" of employment upon employers and permitted claims to be made to the Central Arbitration Committee in cases where such terms and conditions were not observed. The Government are proud of the fact that they repealed that schedule 10 years ago. We believe now as we believed then that it is for employers to judge for themselves what terms and conditions of employment are necessary to recruit suitable employees.
As I said before, Clause 1 is concerned with the refusal of employment on grounds of union membership or non-membership and is entirely even handed. It is not and should not be concerned with attempting to ensure that union members and non-members have exactly the same terms and conditions of employment or, indeed, that members of union X have exactly the same terms and conditions of employment as members of union Y.
The amendment constitutes an attempt by the Opposition to turn back the clock to a time when employers were not free, as they now are, to make their own decisions in response to the particular circumstances which they face. The noble Lord must know that we cannot allow the Bill to be subverted in such a way. Therefore, I hope that the Committee will accept the government amendments, which, as I said, were inspired by the Opposition, and will see that the noble Lord's amendment is unnecessary.
Lord Rochester: I am now rather confused. It seems to me that there are two distinct matters here. The first concerns the form of words of Amendment No. 7, which was questioned by the noble Lord, Lord McCarthy. In questioning it, he referred to Amendment No. 8. However, I wish to speak to the substance of Amendment No. 8. Since we are now speaking to both amendments, perhaps I should speak to that amendment now.
As I see it, Amendment No. 8 seeks to ensure that, even in firms which are not themselves members of any employers' association which has made an agreement with trade unions on terms of employment in the relevant industry, the employer seeking to recruit someone should have to pay him or her what may be called the going rate. That would give to trade unions a monopoly in wage bargaining in the trade or industry concerned. On these Benches we are against monopolies.

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I suggest that the going rate is very different from a minimum income or, in the case of employees covered by wages councils, a minimum wage. For my part I cannot accept the principle underlying the substance of Amendment No. 8.
5.15 p.m.
Lord Boyd-Carpenter: I am sorry that the noble Lord, Lord McCarthy, does not accept the Government's proposals in Amendment No. 7. As my noble friend Lord Strathclyde very generously made clear, they spring from a line taken by the Opposition in another place on which the Government have shown their flexibility of mind by accepting. That seems to me to have produced a fair and satisfactory outcome.
As we are now discussing Amendment No. 8, I want to say that I very much hope that this amendment will be rejected. As the noble Lord, Lord Rochester, said, it seeks to establish the going rate, whatever it may be, as a fixed figure which cannot be departed from. It is also likely in practice to be very damaging.
The Committee will be familiar with cases in which particular industries find themselves in difficulty in competition and simply cannot carry on on the basis of accepting levels of wages and conditions of employment such as are operating elsewhere. A company may be in difficulty for one reason or another and may be faced with the decision of closing down and making its men unemployed or, alternatively, the workforce may be asked, for the time being at any rate, to accept a more moderate wage. To suggest, as does Amendment No. 8, that a company thus placed which acts in that way is indulging in rejection of employment seems to me quite outrageous.
We are all familiar with situations in which it is necessary, if a company is to survive, to pay only moderate wages. If the employees do not wish to accept that, the alternative is that the company closes down and the employees become unemployed, which nobody wants. As I understand it, the effect of Amendment No. 8 is to bar that altogether by making it equivalent to rejection of employment or, as the original draft indicated, a spurious offer of employment.
I hope that the Committee will accept Amendment No. 7, which I believe amounts to an improvement in the Bill, and very firmly throw out Amendment No. 8 if it is moved.
Lord Campbell of Alloway: There is no relationship at all between Amendment No. 7 and Amendment No. 8 either as a matter of intention or drafting. To put it absolutely boldly, Amendment No. 7 is to ensure that the offer is genuine, straight-up and bona fide. It does not say that because the draftsman has been at work. However, that is what it means.
Amendment No. 8 has nothing to do with that at all. As the noble Lord, Lord Rochester, said, it is a minimum wage-pegging exercise within a reconstructed remit of trade union monopoly. I hope that the Committee will not be confused between one and the
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other. As my noble friend Lord Boyd-Carpenter said, the Committee should accept the first amendment and reject the second.
Baroness Seear: I accept that Amendment No. 8 is a rather watered down version of Schedule 11. I know that that will be denied but in substance that is what it is. However, I believe that the wording of Amendment No. 7 is rather vague and open to a lot of argument. For example, I can see that there could be many arguments about the words:
"no reasonable employer who wished to fill the post would offer".
While rejecting Amendment No. 8 the Government should look again at the wording of Amendment No. 7 to see whether an alternative could be achieved which will not be so good for the lawyers.
Baroness Phillips: I should like to follow the noble Baroness, Lady Seear. The Minister kept vaguely referring to the Opposition and how the Government were acquiescing in what was suggested by tabling these amendments. It would be helpful if he could outline the terms of the amendments presented by the Opposition to see how similar or different they are.
I say to the noble Lord, Lord Boyd-Carpenter, that after he had spoken I imagined the sort of situation which could arise. Let us suppose that a company through maladministration—for example, it makes a loan and the money is not repaid—gets into difficulty and then asks the workers to accept lower wages. Surely that is unfair. Is the chairman of the company going to take a cut of £900,000, or will the workers accept that they must lose something like half their salary? I was looking at this matter very dispassionately until the noble Lord explained it. I could then see that once again the poor old man on the breadline will be hammered and the others will go free.
If the Minister wants us to support him, it is reasonable to give us the structure of the amendments tabled by the Opposition. As he says that he has been so kind in falling in with our wishes, can he tell us the content of those amendments?
Lord Murray of Epping Forest: There is no nonsense about fairness on this. The rates which a reasonable employer will offer are the rates which will attract an individual to work for him. In a market economy and in a labour market such as we have, the rate will be at or about what other employers are offering for similar work by similar workers. Therefore, is there any possible way in which one can define what a reasonable employer would offer except in terms which are broadly along the lines of Amendment No. 8? I cannot see that there is any contradiction between the two amendments. On the contrary, one must be expressed in terms of the other. Therefore, why the fuss?
Lord McCarthy: I should perhaps apologise for attempting to help the Committee. We should have had two separate debates. That would have taken longer but would not have enabled us to make the point we wish to make; that is, that whereas in some respects the amendments being moved are an improvement on the face of the Bill, other

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amendments moved by the Minister make the Bill worse. As the Minister said, they institute a definition which previously was not exhaustive and make it exhaustive. That is the intention of the amendment. That is what the Minister said. That is what we complain of.
It is in that context that we examine Amendment No. 8. I do not suggest that that amendment contains the kind of words the Government would want to include in the Bill, but as the noble Baroness, Lady Seear, said, perhaps the Government could look at those words. I do not intend to move Amendment No. 8, but perhaps the Government could examine its wording and consider producing at Report stage other words which give more precision to the vague term that they have included in the Bill and which they say is exhaustive.
Lord Strathclyde: I hope that this amendment is not too vague. In response to the noble Baroness, Lady Phillips, perhaps I may say that we are trying to be as conciliatory as possible to the Opposition. I am not sure what the terms of the opposition amendment were in Committee or at Report stage in another place, but I am sure that somebody helpful will be able to point the noble Baroness in the right direction to enable her to make her own comparison.
Suffice it to say it was the principle that the Opposition brought to our attention that we conceded. We tabled these amendments, which seek to make the clause as fair as possible, as my noble friend Lord Campbell of Alloway said, and to ensure that the employer has a genuine offer on the table for the employee to decide what is happening. If the question went to a tribunal it would ask whether it was an offer no reasonable employer who wished to fill the post would make. In other words, is it to be inferred that the offer is not genuine at all? Amendments Nos. 6, 7, 68, 69 and 70 relate to that situation.
I do not wish to confuse the Committee, but Amendment No. 8 is precisely what the noble Lord, Lord Rochester, said it was. It concerns the creation of a monopolistic power for trade union wage rates to be imposed.
On Question, amendment agreed to.
Lord Strathclyde Lord Strathclyde moved Amendment No. 7:
Page 2, line 21, leave out from ("employment") to end of line 25 and insert ("of that description, or
(d) makes him an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted, or
(e) makes him an offer of such employment but withdraws it or causes him not to accept it.").
On Question, amendment agreed to.
The Deputy Chairman of Committees (Lord Murton of Lindisfarne: In order to regularise the position I ask that Amendment No. 8 be formally moved, even though it may later be withdrawn.
Lord McCarthy: I should prefer not to move it.
[Amendment No. 8 not moved.]
[Amendment No. 9 not moved.]
On Question, Whether Clause 1, as amended, shall stand part of the Bill?
Lord McCarthy: We must rise to say why we find this clause unsatisfactory and unfair. We must ask the Government to think again about many of the points raised in this debate. We tried to get the clause to include professional associations. We tried to get it to include protection for the normal activities of trade unionists. We tried to obtain minimal rights of representation, effective rights of membership, and to give some precision to the notion of the spurious offer as it was on the face of the Bill. The Government refused to do any of those things.
We ask for a balance between the right to join and the right not to join a trade union, and for protection against being unable to obtain a job because one is or is not a member. We ask for the clause to be balanced and fair. The Government have refused to change any of the provisions of the Bill. As my noble friend Lord Wedderburn said, the result is an unfair and unbalanced clause which does not give an effective right of membership at all, certainly not in the way that trade union members need to belong to and be active in their union.
We are compelled to ask why the Government do that. We are bound to conclude that it is because they are not trying to establish a fair balance. They see the clause as they see the Bill—as part of their step by step pursuit of trade union organisation. They believe that the trade union closed shop must be put down because it is part of trade union organisation, despite the fact that on all the evidence the pre-entry closed shop in particular is declining rapidly. It declined in membership between 1978 and 1984 from 837,000 to 500,000. If one thinks of all the trades that have been dominated by the pre-entry closed shop—the docks, the printing industry, iron and steel and craft unionism—it is doubtful if there are more than 150,000 workers covered by pre-entry closed shops.
The Government put forward this disgraceful attempt to maintain that there are 1.3 million workers in closed shops based on a sample of 97 employees, 33 of whom say that they are in some funny kind of pre-entry closed shop which must be occupied by out of work actors. They never asked to which union these people belonged or what job they did. At the end of the day they ask us to believe that the pre-entry closed shop is on the rampage. There is no evidence for that and no support for the narrow, mean clause which the Government have inserted in the Bill.
Lord Boyd-Carpenter: I take exactly the contrary view to that expressed by the noble Lord, Lord McCarthy. This is a very important clause; it is probably the most important clause in the Bill. It marks the end, as I believe the noble Lord, Lord McCarthy, hinted, of a long process in dealing with what I have always regarded as the outrage of the closed shop. It is the end of the pre-entry closed shop.
It does not help his argument that the noble Lord, Lord McCarthy, says that it is dying anyway. If it is dying, that may be recognition that public opinion regards it as unacceptable, and that those involved

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have begun to have less and less enthusiasm for it. It is no argument against ending what has been an abuse —the noble Lord, Lord McCarthy, does not dispute that it has been an abuse—that it is on the run, on the way out, being repudiated, even by those affected. The noble Lord wishes to speak.
Lord McCarthy: The noble Lord, Lord Boyd-Carpe titer, should understand that the only reason I mentioned those figures was that the Government maintain that pre-entry closed shop membership is on the increase. The Government, on their spurious evidence, ask us to believe that there are 1.3 million workers in pre-entry closed shops. I agree with the noble Lord, Lord Boyd-Carpenter, that the practice is dying.
Lord Boyd-Carpenter: I am grateful to the noble Lord, though I always find his agreement a matter of personal embarrassment. The point I was making was that if he is right—I do not seek to judge between him and the Government—why is he so worked up about it? If it is on the decline, if it is dying, why is he so indignant? Why does he regard it as such an outrage? Why does he table an amendment to strike the clause out of the Bill? If he is right—I am sure he takes the line that he is right—his argument is weaker than ever.
The closed shop has been an evil. It has been supported for many years by the less attractive elements of the trade union movement. As the noble Lord said, it was very strong in certain industries in past years and is basically an unfair provision. It is surely right that if a man or a woman wants a job and applies for it, he or she should neither be refused it nor given it because he or she is a member of a union. Whether or not people are members of a union is a matter for them; it is irrelevant to whether they should be given the job for which they apply.
The closed shop has been an evil. It has been supported for many years by the less attractive elements of the trade union movement. As the noble Lord said, it was very strong in certain industries in past years and is basically an unfair provision. It is surely right that if a man or a woman wants a job and applies for it, he or she should neither be refused it nor given it because he or she is a member of a union. Whether or not people are members of a union is a matter for them; it is irrelevant to whether they should be given the job for which they apply. I am delighted that the day has now come when this Chamber is being asked t o pass into law the demise of what has been, for many years, a blot on the trade union movement.
5.30 p m.
Lord Mellish: The Committee will not be surprised to learn that the noble Lord, Lord Boyd-Carpenter, and myself are completely opposite in our arguments and attitude. On one point I do agree. This clause ends the closed shop as we know it. I accept that. I am speaking because again I want to say something about the closed shop. I make it abundantly clear that I speak for myself. I do not speak for the Opposition Front Bench or for the Labour Party as such. What I have to say is based on my own experience and what
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I have lived through. I want to make that clear because on a previous debate it was held that my views were those of the Labour Party. They are not.
Lord Boyd-Carpenter: Will the noble Lord allow me to intervene?
Lord Mellish: Yes, but I have only just started.
Lord Boyd-Carpenter: The reason why the noble Lord's views are taken as official is because he puts the case for the Labour Party so much better than the Front Bench does.
Lord Mellish: All I can say is that I am in favour of the closed shop. I shall tell the Committee why. Perhaps I am old fashioned, outdated, or outmoded—noble Lords can say what they like—but I was brought up in an industry where the closed shop was welcomed by the employers. Indeed, the employers insisted that all workers in the industry should be members of the union.
On Second Reading I asked the Minister whether he had been approached by employers' organisations wishing to abolish the closed shop. That was a fair question. He said that he had not and that, in any case, the question was irrelevant. Is it? I thought that the intention was to cover industrial relations and to improve conditions in the industry for workers. I thought that that was the purpose of the Bill and that abolition of the closed shop was only part of it. However, when I asked for details of the employers' organisations that had asked for the closed shop to be abolished because they wanted improved industrial relations, the Minister said that there had been no such request and that it was irrelevant.
On Second Reading I used a specific word. I said that those who belonged to an industry and who took from employers that which the unions had obtained—that is, improved wages and conditions—were prostitutes. I now withdraw that. I realise that, after all, prostitutes work rather hard—so I am told. Certainly they are self employed; well, nearly always. I do not know much about that as I have no experience. I am going on what I have read or heard about such matters. Certainly, I was wrong to use the word "prostitutes" in describing people who take what the unions have obtained from employers. I withdraw the word and substitute "parasites"—a much better word.
A person can join an industry where wages have been established and conditions improved by the trade union movement, take all that and then say, "Oh, but I have certain principles. I do not believe in belonging to a trade union". That is codswallop. It is rubbish. I will not have it said that people can hold a religious principle. My noble friend Baroness Turner rightly said that there are ways in which religious people—I have in mind Jehovah's Witnesses—can make a donation to charity. That is fair enough. I accept that. However, I repeat that I have nothing but contempt for people who take what is obtained by others in respect of wages and improved conditions. They are nothing more than parasites.
The noble Lord, Lord Campbell of Alloway, decently and properly said on a previous debate that

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I had gone over the top with my arguments. I hold a very strong view. I come from an industry where the closed shop meant a great deal. I am of the old structure; the Ernie Bevin type. I do not know whether there is such a thing as turning in one's coffin but he would deplore the debate we are having today and the suggestion that the closed shop is evil and bad. One needs be involved in the industries with which I was associated to realise how hard men worked to gain a closed shop.
I have nothing but contempt for people like Scargill. It is the Scargills of this world who have done so much harm to the trade union movement. They have destroyed the movement. Do they not understand that? They must not be confused with the Ernie Bevins who did a magnificent job for the unions. I was one of his youngest trade union officials. There is much I could say about the man. He was moderate and sensible. His entire approach was, "Do not argue with the employers unless they have made a profit". Now it is, "Show your strength if they have". I was brought up with his approach. One hears all this stuff and nonsense about the right of individuals not to belong to trade unions. What does that mean? Is it a desire to be a blackleg; a desire to have nothing whatever to do with others who are working and fighting hard to obtain better wages and conditions? Is that to be held up as an example of freedom of choice?
What the Front Bench of the Labour Party does is its business. I do not know whether there is to be a vote. If there is, I shall vote against Clause 1 standing part of the Bill for reasons opposite to those of the noble Lord, Lord Boyd-Carpenter. I believe that the closed shop principle is absolutely right. I believe that the vast majority of decent employers want it. The Government are set on the line that the Arthur Scargills of this world have done considerable harm to the trade union movement, as they have. Scargill has committed every known crime. He is the only man I know in the trade union movement who, on television, disclosed what went on with the employers. You do not do that. Never do you do that!
The noble Lord, Lord Ezra, was chairman of the National Coal Board when my noble friend Lord Gormley—he is not present at the moment—was head of the miners' union. During their negotiations did anyone in this Chamber, or in the country, know what they said? They rowed like mad. However, when the noble Lord, Lord Gormley, left, whatever his shortcomings, the miners were top of the league. All miners had to belong to the NUM. What about that for a closed shop! The miners themselves wanted it. So they were the top in industry. Then this wretched man Scargill goes on television making great speeches which proved flamboyant rubbish. He disclosed what had gone on between himself and the so-called employer who, incidentally, was just as bad in choosing to appear on television. I squirmed. It was an affront to everything I had been brought up to believe. Negotiations between trade unions and employers should be confidential. But not that lot. Oh no, that was all changed.
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Now this Government are stupid enough to bring in a Bill which is supposed to be a public relations Bill. It will be nothing of the sort. It will do a great deal of harm. I am in favour of the closed shop. I do not care what people say. I have lived all my life believing that it is the strength of the trade union movement. And in that belief I echo the voice of a great trade union leader.
Lord Campbell of Alloway: The noble Lord, Lord Mellish, speaks with sincerity and passion. He has the courage of his convictions, and always he has the ear of the Chamber. With the greatest respect and deference, I think he has gone over the top, as I said recently. I shall not take up time by repeating everything I said because this is a re-run of the debate instigated by my noble friend Lord Caldecote. The noble Lord, Lord Mellish, has said much the same, omitting a word or two, as he said on that occasion. I do not intend to say what I or anyone else said at that time. It is pointless to have a re-run.
The noble Lord, Lord McCarthy, inevitably—one understands his position—has to make a sort of ritualistic Second Reading speech on the familiar lines to which this Chamber has become accustomed. Again, there is no point in attempting a reply from these Benches. There are two views. I happen to share the view of my noble friend Lord Boyd-Carpenter. I do not always share his views, but I do in this respect. I congratulate the Government for seeking to ensure the end of the outrage.
Lord Murray of Epping Forest: The so-called closed shop, the 100 per cent. trade union shop or the union membership agreement, has taken many forms. I suspect that it will also take many forms in the future. We are seeing a change in its shape and in its arrangements. However, at its heart there is a purpose and an intention to which the noble Lord, Lord Mellish, has referred. It is not a mean or a base motive. The motive is that of fair play which is a phenomenon well known and admired by the British.
At the heart of the 100 per cent. shop is the firm belief that people who get the advantage of services and gains should be prepared to pay their whack towards achieving those advantages. Who among us will defend the man on the bus from here to Clapham who claims that he should not and need not pay his fare because the bus has to go there anyway and the rest of the passengers have paid their fare? Who among us would walk into the Carlton Club and claim that he can take advantage of the facilities and not pay the annual membership fee? I am certain that we would reject such notions.
The same principle should apply to people who take the advantages of trade union activity but refuse to share in the obligations. Those with religious convictions I am among the first to seek to exclude. Of those with a conscience about the closed shop, that conscience in my experience has usually lived round about their pockets—a reluctance to meet and pay for their obligations. It is acknowledged that the Government will have their way. However, that will not eradicate the belief held by working men and women that some means should be found to ensure

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that free riders are not accorded the respect in our society which this clause seeks to confer on them. That is why I am opposed to the clause.
Lord Campbell of Alloway: Will it be Labour Party policy to reintroduce the closed shop? I do not know whether the noble Lord is able to answer from where he sits.
Lord McCarthy: I tried to make it absolutely clear to the Committee that we are not opposing the abolition of the pre-entry closed shop. We are saying that it should be done in a balanced way. We shall not be voting against the clause. We are trying to get the Government to consider some of our amendments at Report stage. We are saying that the abolition should be done in a fair and balanced way.
Baroness Phillips: I support my two noble friends who have spoken. I have said before that I find it very offensive that we constantly refer to the closed shop in relation to certain industries and professions. As an historian I return to why the City livery companies were formed. The members are very proud to belong to those organisations. The companies were formed as a protection against people who lacked the qualifications to do the job. That is a closed shop.
The professions of medicine and law—need I go on?—are closed shops because the members do not wish to work with people who do not possess the same qualifications or who have not gone through the necessary training in order to work beside them. There is no real difference. For many years journalists had a closed shop. Now many people go into journalism. An old journalist will tell you of his pride in the skills of his craft. That was why journalists had what we now call a closed shop.
Why do we apply that term only to certain professions and jobs? There is nothing wrong with wanting to work side by side with someone with the same kind of qualifications and application to the job. As my noble friend has said, they are paying. I remember how, as a teacher, I despised those who would not join a union. I said to them, "You have no right to enjoy the privileges that we have had to work for if you are not prepared to make a small contribution". It is simply the alliance and loyalty of a group of people who believe that they should only work with people who have the same standards and qualifications. Let us stop this talk about the closed shop: it seems to have an unfortunate connotation. I endorse what my two noble friends have said.
I am proud to have been part of the trade union movement which has done marvels for the people who have worked in it. I hope that they will never regret the fact that the movement is not now so enthusiastically supported as it was. We live in very troubled times. If employers are in difficulty they first cut the labour force. They do not reduce the number of people at the top; they reduce the numbers at the bottom. There may come a day when we shall once again need the famous closed shop. In the meantime let us not take the attitude that there is something evil about it. It was necessary, and it is still necessary.
5.45 p.m.
Lord Rochester: I can be very brief. I have already made it plain that my noble friends and I fully support the Government's decision, after 10 years of the step-by-step approach initiated by the noble Lord, Lord Prior—whom I am glad to see in his place—to bring the pre-entry closed shop to an end. On the basis of that principle I would very much like to support the Motion that the clause stand part.
However, the Committee will also remember that earlier today I said that a person should be no more denied employment on account of engaging in responsible trade union activities than because he was a trade union member. That being so, I cannot conscientiously support the passing of the clause.
Lord Dean of Beswick: Is the Minister not aware that this is not the first time that there have been suggestions that the closed shop should be ended? Is he not aware that in 1940, in this country's hour of greatest peril, Winston Churchill approached the trade union movement and asked it to waive its historic rights, which it did? It agreed to dilution within the engineering services and that allowed hundreds of thousands of men and women to be recruited into engineering as semi-skilled people. In some cases they became highly skilled without the problem of having to join a trade union.
Is the Minister not further aware that when that took place Winston Churchill is on record as having paid tribute to the trade union movement for what it had done for this country in its hour of greatest need? I wonder what that great man would think today about the shabby deal which this Government are giving the trade union movement.
Lord Strathclyde: If the first clause of this Bill is passed it will undoubtedly represent one of the most important landmarks in the history of industrial relations and trade union law in this country by signalling the end of the pre-entry closed shop. The post-entry closed shop is already unenforceable but it is still lawful for an employer to refuse to engage workers because they are not—or indeed because they are —members of a trade union.
In any civilised society individuals should be free to choose for themselves whether or not to belong to a union. The continued existence of the pie-entry closed shop places an unacceptable restriction on that freedom. The pre-entry closed shop also has very damaging economic effects. Chapter 2 of our Green Paper, Removing Barriers to Employment sets these out in some detail and there is no need for me to repeat them today. There can be no doubt that the pre-entry closed shop restricts training opportunities, leading to shortages of skilled labour. And it artificially inflates labour costs with consequent damage to profitability and jobs.
It is not surprising that during this brief debate we have heard a variety of opinions on the closed shop. Some people, inside and outside the Chamber, will no doubt accuse the noble Lord, Lord Mellish, and the noble Baroness, Lady Phillips, of being dinosaurs in their approach. I shall not accuse them of that. I have

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nothing but respect and admiration for the noble Lord's speech. It was inspired, passionate and above all sincere in its tribute to the trade union movement and to the closed shop. However, we have already discussed this clause in great detail and we have voted on two or three occasions this afternoon.
The Opposition have objected to many aspects of the clause. They have objected to the fact that the clause does not cover professional associations, although it is perfectly clear that the Bill is not an appropriate means of regulating entry to the profession. They have objected to the fact that, although evenhanded on the questions of membership or non-membership, the clause does not stop an employer refusing to employ a union activist. They have objected to the fact that the clause does not deal with questions of union representation and recognition which clearly go beyond the issue of access to employment. They have continued to avoid answering the question—at least I think that they have continued to avoid answering the question—whether in the event that they were ever returned to power they would guarantee unconditionally in legislation the freedom of the individual to choose for himself whether or not to join a trade union.
The Opposition have not made clear whether they would continue the protections which current legislation provides against the enforcement of union labour-only contracts and union membership agreements. Therefore I invite Opposition spokesmen, as I invited them at Second Reading, to join me in urging all trade unions which continue to deny basic individual rights by operating pre-entry closed shops to take immediate steps to dismantle them. There is no need to wait for the Bill to become law. There is no need to deny these basic individual rights any longer. If the Opposition have changed their policy on the closed shop, let them say so quite clearly now.
The Government believe that Clause 1 represents a significant and overdue change to the law of this country. It is now time to come to a vote on the penalty shoot-out clause of the Bill. I hope that in doing so all Members of the Committee will examine their consciences, look carefully at the principles we have debated and go through the Lobbies according to those beliefs. This is an historic moment—the ending of the closed shop—and it is important that the views of the Committee should be adhered to.
Lord McCarthy: The noble Lord asked a direct question and he is entitled to an answer. Our amendments to the Bill show the position of the Labour Party and the Opposition on the closed shop. If he is not certain of that and wants it stated again I refer him to the Labour Party policy document Looking to the Future. It states:
"the right to join a trade union is of fundamental importance and must be allied to strong rights of representation and recognition if it is to be real. Whilst recognising the freedom not to join a trade union in the Charter, we fully support and advocate 100 per cent. trade union membership".
That is the party's policy. If the noble Lord wants the details he can get them from the amendments. I say
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once again that we started this debate in order to get the Government to say some kind words about one or other of our amendments. They have not said them. We do not intend to divide the Committee but I ask the noble Lord to think about the issue between now and Report stage.
5.54 p.m.
The Deputy Chairman of Committees: The Question is That Clause 1, as amended, stand part of the Bill. As many as are of that opinion will say "Content"; to the contrary "Not-Content". I think the "Contents" have it. Clear the Bar.
[Division Called.]
Tellers for the "Not-Contents" have not been appointed pursuant to Standing Order No. 51. A Division therefore cannot take place, and I declare that the "Contents" have it.
Clause 1, as amended, agreed to.
5.57 p.m.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 10:
After Clause I, insert the following new clause:
("Blacklists
Where a person provides information to an employer which relates to the activities, or the past or prospective activities, of another person on behalf of an independent trade union within the meaning of section 23 of the Employment Protection (Consolidation) Act 1978 (in this section known as a "blacklist") and that other person is refused employment by the employer—

(a) the employer shall be presumed to have unlawfully refused employment by reason of that other person's membership of a trade union; and

(b) the person providing the blacklist shall be jointly and severally liable with the employer on a complaint under section 1(2) above.").

The noble Baroness said: With this amendment I shall speak also to Amendment No. 72 to Schedule 1. The Bill makes it unlawful to refuse access to employment on grounds related to trade union membership. We considered that question in our debates on the previous clause. However, recruitment practices exist in the United Kingdom which could nullify what the Bill allegedly sets out to do. I refer to the practice of secret blacklisting of individuals who are debarred from employment because of their supposed political or trade union activities or connections.
An organisation has recently been giving evidence to the Select Committee on Employment of another place. The Select Committee has been considering recruitment practices and in the course of its investigations has interviewed representatives of the Economic League. A recent "World in Action" programme threw some light on the activities of this rather sinister organisation. I say "sinister" because it surely is sinister and entirely unacceptable that one's right to earn a living should be put in jeopardy as the result of secret information being given to an employer unknown to the job applicant and which the job applicant has absolutely no opportunity to check for accuracy.
The Economic League has been in existence for about 70 years. Allegedly it exists—so it says—to assist in the development of a widespread understanding of the value and importance of profitable industry and to fight subversion. However, a major part of its activities consists of keeping records of individuals alleged to be subversive—and what that means is entirely within the league's definition. It can be very wide indeed, covering membership of organisations such as CND, the Child Poverty Action Group, Christian Aid and other charitable organisations, as well as the more obvious Left-wing organisations. The information is then supplied, on request, to employers who are subscribers to the league.
People who apply for jobs and whose applications are rejected have no means of knowing why they have been rejected, or of challenging the information supplied by the league. As a result of the "World in Action" programme, much more attention has been given to the practices of the league. The information it has on people is not on computer and therefore it escapes the requirements of the Data Protection Act.
There was an interesting exchange between representatives of the league and members of the Employment Committee in another place on the matter of record keeping. On that occasion, representatives of the league were asked whether it kept lists. At first the representatives denied that they did so. They were then questioned by the chairman as follows:

"Question: You do not keep lists at all?

Answer: We do not.

Question: You do not have an index of names?

Answer: We have an index, we do not produce a list.

Question: What is the difference between an index of names and a list?"

There followed a rather rambling reply which included the words:
"You will know from our documentation that we have submitted to you that we encourage and advise our client companies which utilise our pre-employment vetting service to supply the information we provide them with, if any, to the individual concerned in its entirety, quoting the Economic League as the source.

Question: But you do have a list?

Answer: We do.

Question: You have a file?

Answer: We do not create blacklists.

Question: You have a file, with a list of names?

Answer: We have records, sir".

It is clear from the "World in Action" programme, and more particularly from a recent book written by the researcher and producer of the programme, that the records are far from accurate. Instances have come to light fortuitously, so to speak, of individuals who certainly could not be described as subversive but who nevertheless have been put on the league's records as troublemakers and have had their employment prospects damaged as a result. The cases are very well documented and are contained in the publication to which referred.
The former director of the league from the North West has described the system of record-keeping as
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chaotic. Moreover, there has been little evidence that individuals denied jobs as a result of information from the Economic League have ever been given the information in its entirety, as representatives of the league claimed was the case. In any event, there is no obligation to provide it, either on the part of the league or on the part of the employer. Equally, there is no obligation on employers to check any information supplied by the league and no evidence to suggest that that is ever done.
It is sometimes argued—indeed, the league's representatives argued this point before the Employment Committee in another place—that it is for the individual to take appropriate action if he feels that information which has been supplied is inaccurate. However, that is totally unrealistic. To start with, the league operates in a secretive way. An individual would not necessarily know that he had been the subject of a check. Even if the information were to come to light, the only remedy would be by way of libel action in the courts. But first the individual would need proof, which is hard to come by, as I have already said. Even more important is the fact that most people so libelled are ordinary working people seeking jobs. Libel actions are notoriously expensive, the risks are considerable and there is no legal aid available. Therefore, this is virtually a non-remedy; in fact, there is no remedy.
We have an organisation operating in our midst which does so in secret, whose files and card indexes are not open to public scrutiny and which derives its information about so-called activities and political proclivities from dubious sources—often the tabloid press. The league is not publicly accountable in any way, and yet its activities can result in a loss of livelihood for individuals who need jobs in order to live.
The league says that it operates as a result of contributions from member firms. It is to the credit of a number of leading employers—the high street banks among them—that as a result of the spotlight thrown on the league's activities they have withdrawn support. The CBI too does not like the league and the Institute of Personnel Management is against it. However, a large number of companies still subscribe and undoubtedly use the services of the league when recruiting employees.
One way of dealing with the matter may be to extend the provisions of the Data Protection Act to cover manual records. They would then be open to scrutiny. However, I do not think that that would go far enough. For many years a private agency with no public accountability has been quietly vetting and in effect blacklisting thousands of people and doing so for activities which are all perfectly legal. Fortunately, people in this country have the right to belong to political parties of their choice and to belong to unions, other organisations and pressure groupings of various kinds. Even on its own showing, the league has been carrying out about 100,000 checks every year. It is quite immoral. It ought to stop. That is why I hope that the amendment will find favour with the Committee. I beg to move.
Lord Rochester: As a Liberal Democrat, I can well understand the feelings which prompted the noble Baroness, Lady Turner of Camden, to move this amendment. I never had much love for the activities of the organisation to which she referred—namely, the Economic League—which conveys information to employers about the alleged activities of potential recruits to their employment. That feeling dates from a time about 40 years ago when it fell to me to ensure that the two people who were representatives of the league and who regularly sought to address employees of the company for which I then worked were kept in their proper place; that is, outside the factory gates.
The methods employed by the Economic League to compile its information are to my mind highly suspect. Like the noble Baroness, I am thinking especially of its use of manually compiled files in a way which means that they escape the obligations of accuracy which are imposed upon computer records under the Data Protection Act. The noble Baroness said that one way to deal with the matter would be to extend the provisions of the Data Provision Act to cover manually held records. That may be a question for the Home Office rather than the noble Lord, Lord Strathclyde.
However, in supporting the amendment I should like to ask the Minister whether he agrees in principle that the degree of protection accorded to individuals should not be dependent upon the way in which information about them is compiled. The amendment aims to provide a more immediate means of correcting abuses which may arise from the use by employers of so-called blacklists. I support that objective.
Lord Campbell of Alloway: I hope that my noble friend will not accept this amendment. I too share the concerns expressed by the noble Baroness and the noble Lord, Lord Rochester, about the blacklisting activities to which reference has been made. However, there are other ways in which this problem ought to be dealt with. The proposed new clause is really straining the wording of the Bill. To import this as a new dimension of the concept of a,
"Refusal of employment on grounds related to union membership",
is straining the Bill to creaking point.
It has been used as an overt attack on the Economic League, about which I must admit I know little. I am not here to support, oppose or criticise it. What has been said has been said. Let us assume that it is all true. Let us assume that there is a mammoth problem. All right; let it be dealt with. Is this the way to deal with it? It requires careful thought because we are moving into the realm of intrusion into privacy, where there is always the good, the bad, the counter-balance, and so forth. Let us not step hastily into an area such as this into which so far our common law has not entered.
Lord Strathclyde: I do not propose to repeat all the points that I made when referring to the earlier opposition amendments concerning trade union activities, but it can safely be assumed that much of what I said then applies to the new clause (after Clause 1) with which we are now dealing. I must say at the
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outset that, as a result of those earlier amendments not having been accepted, the new clause would have an odd effect. It would mean that an employer could lawfully act on his own knowledge of an individual's trade union activities in refusing him employment, but if he took into account any information about such activities provided by a third party the refusal of employment would be unlawful.
Clearly that would not be a sensible position, but in fact the position is worse than that. The new clause would have the effect, which I suspect is unintentional, that whenever an employer had received information about an individual's trade union activities it would be unlawful to refuse that individual employment whatever the reason for refusal, even if it had nothing to do with the individual's union activities. That cannot be right.
Lord Wedderburn of Charlton: I am sure that the Minister did not mean to elide part of the amendment. I am grateful to him for allowing me to intervene. Perhaps to save time, he called it an amendment that would make it unlawful for the employer to act as he described. In fact, the amendment provides that the employer is presumed to have unlawfully refused employment. The amendment does not make such a presumption conclusive. It is open to the employer to show that other reasons were present. The amendment is clear on that point.
Lord Strathclyde: I see the amendment in a far more definite light, but there we are. I am not a lawyer and I cannot look at the matter with legal precision. I still suspect, which is why I said that I believed the effect was unintentional, that the amendment would have the effect that I said it would have, though I accept that the noble Lord, Lord Wedderburn, has said that that effect is not intentional and that that is not what is required.
In any event, it is apparent that what we have here is another attempt by the Opposition to outlaw what they describe as Economic League blacklists. I agree with my noble friend Lord Campbell of Alloway that we are not here to defend the Economic League, or to condemn it. That is something that noble Lords opposite can take up with the Economic League as the Select Committee of another place has done.
In Committee, in another place, the Opposition tried to argue that because the Bill will make it unlawful for an employer to select only new recruits whose names appear on a union's list. It should equally be unlawful for him to select new recruits whose names do not appear on an Economic League blacklist. As my honourable Friend the Minister of State made clear then, that attempted analogy bears no relationship to reality. That is because the Economic League, unlike some trade unions, does not submit candidates for employment, and because employers do not agree to employ only people that the Economic League puts forward.
The Government firmly believe that an employer should be entirely free to refuse to take on a job applicant whose previous activities, whether or not in a trade union context, he considers unacceptable.

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Equally, we can see no reason why employers, if they choose to do so, should not be free to use the services of organisations which compile information that may be helpful to them in selecting suitable persons for employment. But the new clause is not confined just to organisations whose function is to collect and supply information to employers; it would also cover references from an individual's past employers.
Surely it cannot be right that an individual's past employer who provides a confidential reference for a prospective employer, which includes a factual statement about that individual's trade union activities, could later be found to be party to an unlawful refusal of employment. Of course, employers who use such information, whether it is obtained from the Economic League or from other sources, should satisfy themselves as to its quality and accuracy. They might, for example, ask for second opinions from other sources, but those are not, in the Government's view, matters that require any amendments to the Bill.
I hope, for the reasons that I have outlined, it is understood that the Government cannot accept the amendment. I hope therefore that the noble Baroness will withdraw it.
Baroness Turner of Camden: I am somewhat disappointed that the Minister, even if he does not like the wording, does not accept the validity of the points made by myself and the noble Lord, Lord Rochester, in support of the amendment. I am sorry to say that I cannot agree with the noble Lord, Lord Campbell of Alloway, that by tabling the amendment we are straining the Bill, because, as I understand it, Clause 1 relates to recruitment practices. The amendment is clearly about recruitment practices.
One of the worst features of the Economic League, the organisation to which I referred—there may well be other organisations—is that it operates secretly without any accountability. It is not possible to subject its records to scrutiny, and the individuals who fail to obtain employment due to that organisation's activities have no redress because the whole affair is conducted in secret. The lists that it compiles about people often contain inaccurate information and it has a broad idea of what constitutes subversive activity.
Moreover, the keeping of blacklists and the general business of blacklisting employees is a breach of ILO Convention 98 of which we are a signatory. I shall not deal with the tricky point made by my noble friend Lord Wedderburn about assumptions. He dealt effectively with the point made by the Minister about the wording of the amendment and I shall not go over that point again.
As was clear from the way in which I moved the amendment, I feel strongly about the issue. It is a question of civil liberties. It is desperately unfair that people should be prevented from obtaining jobs because of secret information provided to their would-be employers. As I have said, many employers now regard the league, and other similar organisations, as unacceptable and do not use its services although they once did. The league's employer membership is declining. Nevertheless, the practice is
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still widespread. It is unfair that it should continue, and in those circumstances it is my intention to test the feeling of the Committee.
6.18 p.m.
On Question, Whether the said amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 58; Not-Contents, 102.

Division No. 3

CONTENTS

Addington, L.

Lockwood, B.

Aylestone, L.

McCarthy, L.

Birk, B.

McGregor of Durris, L.

Blackstone, B.

Mackie of Benshie, L.

Bonham-Carter, L.

Mayhew, L.

Bottomley, L.

Mellish, L.

Brooks of Tremorfa, L.

Murray of Epping Forest, L.

Cledwyn of Penrhos, L.

Nicol, B.

Clinton-Davis, L.

Peston, L.

Davies of Penrhys, L.

Phillips, B.

Dean of Beswick, L.

Pitt of Hampstead, L.

Fisher of Rednal, B.

Rea, L.

Foot, L.

Richard, L.

Gallacher, L.

Rochester, L. [Teller.]

Galpern, L.

Russell, E.

Graham of Edmonton, L. [Teller.]

Serota, B.

Shackleton, L.

Grey, E.

Stedman, B.

Hampton, L.

Stoddart of Swindon, L.

Harris of Greenwich, L.

Taylor of Blackburn, L.

Hatch of Lusby, L.

Tonypandy, V.

Hollis of Heigham, B.

Tordoff, L.

Houghton of Sowerby, L.

Turner of Camden, B.

Howie of Troon, L.

Wallace of Coslany, L.

Hughes, L.

Wedderburn of Charlton, L.

Jay, L.

White, B.

Jeger, B.

Williams of Elvel, L.

Jenkins of Putney, L.

Winstanley, L.

John-Mackie, L.

Winterbottom, L.

Listowel, E.

NOT-CONTENTS

Alexander of Tunis, E.

Elliott of Morpeth, L.

Allenby of Megiddo, V.

Faithfull, B.

Arran, E.

Ferrers, E.

Ashbourne, L.

Fortescue, E.

Balfour, E.

Greenway, L.

Belhaven and Stenton, L.

Halsbury, E.

Beloff, L.

Hanson, L.

Belstead, L.

Harmar-Nicholls, L.

Bessborough, E.

Henley, L.

Blake, L.

Hesketh, L.

Blatch, B.

Hives, L.

Boyd-Carpenter, L.

Holderness, L.

Brabazon of Tara, L.

Hooper, B.

Brookeborough, V.

Howe, E.

Brougham and Vaux, L.

Hylton-Foster, B.

Butterworth, L.

Johnston of Rockport, L.

Caccia, L.

Kimball, L.

Caithness, E.

Kinloss, Ly.

Campbell of Alloway, L.

Kinnoull, E.

Carnegy of Lour, B.

Lindsey and Abingdon, E.

Cavendish of Furness, L.

Long, V.

Colwyn, L.

Lucas of Chilworth, L.

Cork and Orrery, E.

McColl of Dulwich, L.

Cox, B.

Mackay of Clashfern, L.

Craigavon, V.

Margadale, L.

Cranbrook, E.

Merrivale, L.

Crook, L.

Mersey, V.

Cullen of Ashbourne, L.

Monk Bretton, L.

Davidson, V. [Teller.]

Monson, L.

Denham, L. [Teller.]

Morris, L.

Derwent, L.

Mottistone, L.

Downshire, M.

Munster, E.

Elibank, L.

Murton of Lindisfarne, L.

Elliot of Harwood, B.

Napier and Ettrick, L.

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Nelson, E.

Somerset, D.

Orkney, E.

Stodart of Leaston, L.

Oxfuird, V.

Strange, B.

Park of Monmouth, B.

Strathcarron, L.

Pearson of Rannock, L.

Strathclyde, L.

Pender, L.

Strathmore and Kinghorne, E.

Pym, L.

Sudeley, L.

Quinton, L.

Swinton, E.

Rankeillour, L.

Thomas of Gwydir, L.

Reay, L.

Trefgarne, L.

Renton, L.

Trumpington, B.

Rippon of Hexham, L.

Ullswater, V.

Rodney, L.

Vaux of Harrowden, L.

Sanderson of Bowden, L.

Vernon, L.

Sandys, L.

Vinson, L.

Sharples, B.

Wynford, L.

Slim, V.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.26 p.m.
Clauses 2 and 3 agreed to. Clause 4 [Secondary action]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 11:
Page 4, line 36, at end insert:
("( ) Secondary action satisfies the requirements of this section if is done with the support of a ballot under Part II of the Trade Union Act 1984 and—

(a) the purpose or principal purpose of the action is directly to prevent or disrupt the supply of goods or services during the dispute between the employer party to the dispute and the employer under the contract of employment to which the action relates; and

(b) the secondary action (together with any corresponding action relating to other contracts of employment with the same employer) is likely to achieve that purpose.").

The noble Lord said: I beg to move Amendment No. 11 and speak to Amendment No. 12. Both of these amendments concern what is now called under Clause 4 of the Bill, "secondary action". It has been so called in our system of labour law since 1980, although before that it was usually called—as it still is in the trade union movement—"sympathetic action" or, in most systems of Western Europe, "solidarity action".
Members of the Committee may find these two amendments familiar. Both attempt to cut a path through what the Government now intend for the first time effectively to be a total ban—perhaps with the minor exception, if it is such, of subsection (3)—on secondary action as defined in Clause 4, replacing Section 17 of the Employment Act 1980.
The reason that our amendments will be familiar to some Members of the Committee is that they describe the area, broadly speaking, of what came to be known as the "gateways to legality for secondary action" which were included in the Employment Act 1980.
Perhaps I may spend a moment upon the history. The Government have never explained why, after 10 years, they are now revoking the gateways to legality for secondary action which were included in Section 17(3) and (4) of the Employment Act 1980. I add immediately that we always said that we regarded the gateways as less effective than the Secretary of State considered them at the time. We believe that experience in the courts over the past 10 years has
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proved that to be correct. There has never been a major case in which the gateways—sometimes optimistically called the protection whereby supplies are interrupted from the first supplier to the first customer—have availed a defendant. That is one of the reasons why there is a minor difference in wording between our amendments. However, broadly, they cover the same kind of ground, namely, that sympathetic action should be allowed where there is a direct disruption of the supply of goods or services. It should also be allowed—this is covered especially in Amendment No. 12—where there is a disruption of supplies from a group of companies where there are commercial relations between either two subsidiaries or the holding company and a subsidiary within the group. The provision does not bite on companies merely because they are in the same group and associated.
We further believe that sympathetic action should be allowed where an employer intervenes and supplies goods or services,
"not previously supplied by him and normally supplied by the primary employer"
as a means of helping in a dispute.
Before the Minister even asks, I should say that these two amendments do not represent our total policy on secondary action. There are other amendments to come. However, we feel they constitute a good place to start. We wonder whether the Minister will now tell us why the Government disagree with the stance taken by the Secretary of State, now the noble Lord, Lord Prior, in 1980. The point was not explained in another place. I gave 00000the noble Lord, Lord Prior, notice that I wished to quote him. He agreed and said that he would attend or not attend the Chamber as the mood took him.
On 17th April 1980 at col. 1490 of the House of Commons Hansard the then Secretary of State defended his gateways to legality by saying that,
"the only other position that we could take would be to say that there will be no immunity for anything other than primary action".
That is now the Government's position. The Secretary of State continued:
"I do not believe, for reasons that I shall give, that that is either a practical or a reasonable position to take … We are seeking to reach a position which we believe is fair and which recognises the traditional rights of the trade union movement".
We, of course, did not agree with that stance. The Secretary of State added at col. 1498 of the House of Commons Hansard:
"the clause does not attempt the easy way out—the simple, easily-constructed position of removing immunity for all but primary disputes. No, the clause genuinely seeks a position which is balanced and reasonable. Simple repeal of the immunities for all secondary action would not be right… I have said on a number of occasions from this Box that, just as it is not reasonable to leave trade unions with more power than they need in the vain hope that they will not misuse it, so also it would be unreasonable to weaken them to the extent that they are unable to defend their members against attack. Finding the right course calls for enormous effort and thought… It will not be achieved by reburnishing our prejudices".
It would be nice if noble Lords who voted for that provision would explain why they are now going to vote against this amendment. Perhaps the Minister did not vote for that provision. However, I am sure that had he been present on that occasion, the noble Lord, Lord Prior, would have persuaded him to do so. What has happened to cause this change of mind? All we ever hear of are strange incidents. The case of the Ford motor company has been referred to many times. We have stressed that that was not a case of secondary action at all, or, in so far as it contained that element, it was far from the core of the problem. There have been no historical events or crises to cause this reaction. It is simply a question of a change of mind. Sympathetic action is not very well understood by this Government.
Having reread the debate that took place in 1980, I can understand the case that was made at that time. However, I do not agree with it. Is it understood that there are many kinds of solidarity action? There is the kind where one employer is an ally of the primary employer. That situation is covered by parts of our amendments. There are cases where sympathetic action is truly altruistic. British workers in our ports have a fine tradition of taking action at no profit to themselves, and sometimes to their disadvantage. They have taken such action to assist crews, mainly from developing countries, imprisoned in ships flying flags of convenience, to obtain the minimum conditions for seafarers contained in international agreements. However, this Government's legislation does not take that situation into account. Such action is to be rendered unlawful.
There are cases where one group of workers manifestly has a direct common interest with other groups of workers. On a later amendment we shall consider a case where even the Government appear to accept that a common interest exists. We shall see whether the Government agree that there can be community in action.
This matter is partly a question of misunderstanding. If we could not explain the clause that way, we would have to say that it was directed at establishing a reburnishing of prejudices against the trade union movement, as the noble Lord, Lord Prior, suggested. Worse than any misunderstanding is the fact that the Bill represents another breach of international standards. I am sorry to repeat the point to the same Minister. However, irrespective of the procedural consequences and finalities of the case itself, the committee of experts of the International Labour Organisation, in considering the United Kingdom's legislation on strike law, especially relating to this area, said in April 1989 that,
"The overall effect of legislative change in this area since 1980 is to withdraw protection from strikes and other forms of industrial action in circumstances where such action ought to be permissible … The Committee … ask the government to introduce amendments which enable workers to take industrial action … (and) which accord adequate protection of the right to engage in … protest strikes and sympathy strikes as guaranteed by Articles 3, 8 and 10 of the Convention".
The convention referred to in the quotation is convention No 87 on freedom of association of 1948.
Those comments were made as regards the law as it stood at that time. The Government's response is to repeal even the tiny and ineffective gateways to legality contained in the 1980 Act without meeting the arguments of the noble Lord, Lord Prior, of 1980 and without explaining their position on the ILO convention—I have referred to only one of many documents showing the position under the ILO convention—other than to say their position is not a breach of that convention. They plead not guilty to a breach of that convention, but they offer no explanation of their stance.
The ILO committee of experts makes it clear that if workers have a direct interest in a dispute, the boundaries of the employment unit cannot define their right to strike under the international convention. One finds that to be the case under all the major European systems of labour law. The right to withdraw labour cannot be limited in any democracy by boundaries drawn according to the employment unit because it is the employer who defines the employment unit. Therefore, the right to strike is put entirely into the hands of the employer. That fact is understood in all the major systems. Every legal system puts some limits on sympathetic or solidarity industrial action, but no other European code of labour law bans it altogether. None permits the legal veils of an employer's corporate identities within a group of companies to determine workers' rights absolutely.
Some systems are quite strict; for instance, the German law. However, it permits sympathetic solidarity action on the basis of what may be called "the ally test". The most recent case that I know of occurred in 1985. It was stated that where an employer had "departed from his 'neutrality'" or had taken over the production of another employer and had been an ally in that sense, secondary action must be allowed.
In most countries it is a case of a test of interest. In Italy a wide test of interest is applied. It is a case of whether the workers have a common interest and whether both the actions in themselves are inherently lawful. We have met that situation in our amendments by providing for ballots. We have used the structure of labour law as it stands, other than on one particular point.
In France, if both actions are lawful and the demands,
"relate to the interests of the second group"
the secondary action is lawful. That is a quotation from a textbook. A similar test is used in the Netherlands, Belgium, Spain and even in Greece, although Greece in other ways is rather restrictive in its strike laws.
Historically, nationally and internationally, the Government therefore appear to have a poor case for at this point—after 10 years—taking away even those two small areas of legality for what is now called secondary action. Their main argument in the Green Paper was simply to restate—I quote from paragraph 3.10 of the Green Paper—that:
"The Government sees no reason why employers who are not a party to a dispute should be at risk of having industrial action organised against them".
Lord Strathclyde: Absolutely!
Lord Wedderburn of Charlton: The Minister said "Absolutely". It is important that he said that because the Government will not have any exception to that. Their policy is that employers should always be allowed to help other employers in a dispute, but employees should never be allowed to help other employees in a dispute. Some people might think that that was other than a fair and balanced attitude to industrial relations. They might even think that it would be counter-productive.
I see from the Minister's helpful comment of "Absolutely" that he will be against the amendments, but I want to hear from him an account and a reasoning which matches the standard of the reasoning, with which I disagreed in the end but which existed in 1980 at the time of office of the noble Lord, Lord Prior. The affairs of this country deserve at least some reasoning. In that hope at least, I beg to move.
Lord Campbell of Alloway: I hope that the Committee will in no circumstances accept the amendment. We have heard from the noble Lord, Lord Wedderburn of Charlton, a technical, detailed and legalistic discussion about cases in which both of us at various times have been involved. One could argue about their merits, but this is not the place to do so. They have by and large produced satisfactory and fair results, but, as in all spheres of law, there have been some hard decisions.
The noble Lord also indulged in a comparative thesis of labour laws in other states which on detailed analysis—I promise the Committee that I shall not attempt such an analysis—bear no true comparison at all.
The noble Lord also mentioned a committee of experts. That committee of experts is always trotted out. I get so bored with that committee of experts who opine on this and opine on that. However, the one thing that they never take into account, because it does not matter a fig to them, is that, as a result of what has happened here under this Administration, our strike record on days lost is better than it has been for years and years. That is what matters in the economic sense—in the generation of wealth, in the maintenance of standards and in keeping employment reasonably high.
Perhaps I may now turn to the subject of secondary action, which is sometimes also called sympathetic action. It has never been satisfactorily defined in any of the statutes that have been passed. It has always been a maze of incomprehensible complexity. The judges in the courts have done their best, but, at root, it is indefensible. It is a hangover of the trade union and I have always stood against that aspect of trade unionism. It is a hangover from the desire of trade unions to use their power as a lever.
Baroness Turner of Camden: Does the noble Lord agree that sympathy action can sometimes be altruistically motivated and that groups of workers might sometimes wish, for quite altruistic reasons and not for self-aggrandisement, to help other groups of workers? Is that not sympathy action?
6.45 p.m.
Lord Campbell of Alloway: I accept that workers may feel sympathy for other workers, but I do not accept—the noble Baroness is entitled to disagree with me—that that sympathy should extend to inducing other workers for whom they have sympathy, or vice versa, to break their contracts of employment with another employer.
I am relieved and grateful that at long last the Government will do away with that. I do not expect the noble Baroness or noble Lords on the Benches opposite to agree, but, like the noble Lord, Lord Mellish, who speaks from his conscience, I speak from mine. The Government are absolutely right on this point.
Lord Rochester: As the noble Lord, Lord Wedderburn, has reminded us, Clause 4 has the effect of making all secondary action illegal. He told us what the Government's position was in 1980. The Government's view is that there have since then been abuses. The question therefore is whether the mischief that has occurred since 1980 is sufficient to justify this new measure.
Whatever view may be taken by the Committee about that question, we are now discussing the amendment. It proposes that secondary action should be lawful if its purpose is to:
"disrupt the supply of goods or services during the dispute between the employer party to the dispute and the employer under the contract of employment to which the action relates".
As I see it, that could once again lead to a situation in which we might see miners picketing railway stations or railway workers blacking coal and so on. I should not be at all happy about that.
We are also discussing Amendment No. 12. I have more sympathy with subparagraph (i) of the amendment. In this matter of secondary action, it is essential that there should be even-handedness between employers and employees. I fear that the clause as it now stands may encourage the unscrupulous employer artificially to divide his company into separately owned organisations simply to defeat what would then become secondary action. To that extent, I am sympathetic to Amendment No. 12 and I shall listen with great interest to what the noble Lord, Lord Strathclyde, says on that point.
On the other hand, as I read it, subparagraph (ii) of the amendment would mean that, for example, an employer normally using one type of fuel for his operations might be debarred from making use of another to keep production going. I fear that that might lead to just the situation about which I am unhappy in the case of Amendment No. 11.
For those reasons—in some respects they are different, although they are largely the same—I have reservations about both Amendments Nos. 11 and 12.
Lord Boyd-Carpenter: I was a little intrigued to hear the noble Lord on the Front Bench opposite so noticeably hankering after 1980. That is a good example of the backward-looking attitude which now appears to dominate the Labour Party. The noble

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Lord seemed to think that everything in 1980 was all right and to ignore the experience of the 10 years that have passed.
He also sought to brush aside the Ford case. It is a great mistake to brush aside the Ford case. Not only did it directly damage our economy, it forfeited investment of many millions of pounds and deprived 1,000 men of jobs in an area where they are much required and probably affected another 1,000 men a year or two later. No government can ignore action of that kind—that is just one example—which can have such effects.
Therefore the Government are right to proceed as they have in respect of secondary action. This is all part of the general process of trade union legislation. The Government have proceeded—rightly, judging by results—by steps in that direction as they have done in so many others. Instead of provoking a crisis, as they probably would have done in the early 1980s, by wholesale and widespread legislative changes, they proceeded step by step in a way that carried public opinion with them and which contributed to the greatly improved atmosphere of industrial relations referred to earlier. One is happy to think that that is the fact. Therefore the general government tactic of step by step moves, of which this is quite a good example, has justified itself by the results.
Secondary action can be very unfair. Why should an employer who is not at all involved in a dispute be faced with the disruption of his work because his workers or the union that organises his workers is in dispute with a totally different employer over a totally different matter? It is grossly unfair to that employer who ex hypothesi has no quarrel at all with his employees or the union that he should be made to suffer simply because the union is trying to mobilise power in different directions against a totally different employer.
I have always thought that for that reason secondary action was one of the most unfair aspects of our system. For years I have thought it quite wrong that it should receive the cover from the law which it has received until now. Therefore I particularly welcome this clause and hope equally that the Committee will reject both these amendments.
Lord Strathclyde: The case for making changes to the provisions of the present Section 17 of the 1980 Act, which concerns immunity for threatening or organising secondary industrial action, was set out in the Green Paper Removing Barriers to Employment. Those proposals won solid support, and confirmed our belief that the time was right to revise the arrangements which were appropriate in 1980 but which clearly are no longer appropriate for the 1990s. The kind of point made by the noble Lord, Lord Wedderburn, about my noble friend Lord Prior and the changes that have taken place since 1980 vividly demonstrates the degree to which the Labour Party is stuck in some kind of time warp in which the past assumes much greater importance than the present or the future. I am grateful to my noble friend Lord Boyd-Carpenter for making that point so clearly. It
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shows that the Opposition have no understanding of what the step by step approach to reform of industrial relations and trade union law in fact means.
An essential principle of that approach is to keep the relevant law under review and not be afraid to come forward with proposals to adapt the law to present-day circumstances and needs. That is what the Government did in the Green Paper and those proposals on secondary action won solid support. If there have been few cases in which trade unions have secured immunity for secondary industrial action since 1980, that is neither here nor there. The threats made by the TGWU and other unions to black the new plant proposed by Ford USA at Dundee clearly show the potential scope for damaging action against an employer who has no dispute with his own employees. That is the principle, which the Government now accept; that in the 1990s there is no case for trade unionists to have immunity for organising industrial action against employers who have no quarrel with their own workers.
The noble Lord, Lord Wedderburn, said that he disagreed with the action that we took 10 years ago. Today, 10 years later, he says that maybe that was all right. Perhaps in 10 years' time he will say that what we are doing in 1990 is not so bad either.
Nothing in Clause 4 affects the ability of a union to call for primary industrial action; that is, action in contemplation or furtherance of a dispute between workers and their own employer. It will remove immunity where the call is for secondary action which is made other than in the course of peaceful picketing as the present law allows. I should add that nothing in Clause 4 affects the position of any worker who decides to take secondary action. We are dealing here with what the law should be in relation to threats or calls to take secondary action, whether made by a union or anybody else.
These amendments share a common theme. They seek to extend the scope of immunity for organising secondary action beyond that proposed by Clause 4 and in some cases beyond the scope of immunity allowed by present law. That simply confirms that the Opposition is committed to giving more scope for damaging and destructive secondary action. It is apparently quite content to see the action threatened against companies such as Ford USA if plans to establish new plant and bring new jobs happen to offend certain unions who are in a position to threaten secondary action to force their will on an employer who has no dispute with his own workforce.
The amendments also make reference to ballots. However, these are unnecessary because other legislation means that if a union is lawfully to call for industrial action it must always hold a properly conducted ballot before doing so. However, there can be no question of a ballot enabling a union to call for industrial action which is unacceptable in itself—for example, political action or action to enforce closed shop practices. It is perfectly proper for the law to set limits to immunity and remove it altogether where industrial action has unacceptable purposes.

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Amendment No. 11 is apparently designed to reinstate the gateway to immunity for secondary action aimed at the first customer or first supplier of the employer in a primary dispute. It is broadly similar to the provisions of the present Section 17(3) of the 1980 Act. There is no case whatsoever for continuing to allow immunity for such action. As the Green Paper explained, it leaves scope for unnecessary uncertainty about whether or not any particular secondary action satisfies the gateway. What is more important, to continue to allow such a gateway runs counter to the principle that there should be no immunity for organising action against an employer who is not in dispute with his own workers.
Amendment No. 12 seeks to give scope for organising action against an employer who is associated with the employer in dispute or who has agreed to take over the supply of goods or services which would normally be supplied by the employer in dispute. Once again, to allow any such gateway is incompatible with the principle that there should be no immunity for organising action among workers who have no dispute with their own employer.
On the question of associated employers, there is simply no evidence that employers have or are in future likely to split up existing companies simply to reduce the scope for lawful industrial action. In this connection we have heard in the past about the purported reasons why Mr. Murdoch reorganised his newspaper business. I have to say that I am unconvinced that he was influenced to any significant extent by a desire to limit the scope for lawful secondary action to be organised against his enterprises. In any case, the reason why the unions were unable to bring effective pressure to bear on Mr. Murdoch to reinstate the print workers whom he had dismissed after they chose to take industrial action was simply that other workers refused to become involved in taking industrial action on their behalf. Moreover, the failure of the unions to ballot those workers about taking industrial action against their employer was far more significant than the issue of whether there could have been immunity for organising secondary action if there had been such ballots.
Similarly in respect of the Dimbleby case the fact is that the union targeted its industrial action so as to affect a company which had no dispute with its workers. In such circumstances there is no case for allowing immunity. In that case the union's action was unlawful under the present law and would rightly remain unlawful under the law as proposed in this clause.
To allow secondary action against employers who happen to offer to supply goods and services which would otherwise have been supplied by those in primary disputes with their own employer would represent a very significant extension of the scope for secondary action well beyond what is allowed by the present law. It hardly needs to be said that primary industrial action can damage the interests of innocent customers and suppliers. The most obvious result of
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the amendment is that where that innocent customer or supplier tries to repair the damage that he has suffered by getting another employer, even more remote from the dispute, to supply him with the goods or services which the employer in the primary dispute would normally have supplied, industrial action could be organised against the other employer.
It is surely impossible to justify such a highly damaging result unless one believes that the commercial interest of innocent employers must always take second place to the desire of unions to make industrial action successful. I find it hard to believe that the Opposition wish to go that far.
If in such circumstances a union representing the workers of the alternative supplier wanted to call for industrial action by his workers in contemplation or furtherance of their own dispute with him, that could be lawful now, as it could be if Clause 4 is enacted. However, as I have made clear, it is very different and quite unacceptable to suggest that the union representing the workers involved in the primary dispute should be allowed to call for industrial action against employers who have no connection with that dispute.
The noble Lord, Lord Wedderburn, again made much of the ILO. I entirely agree with the words of my noble friend Lord Campbell of Alloway. We have heard enough of the ILO. I said at Second Reading—and I shall no doubt have to say it again—that the ILO has not condemned the present law and will not condemn Clause 4 as being incompatible with ILO conventions. At least the Government are very confident that nothing in our general employment law, or indeed within this Bill, is incompatible with any ILO convention that we have ratified. I cannot be more unequivocal than that on the ILO. I hope that noble Lords opposite will agree that.
No doubt they feel very strongly that these amendments should be accepted in whole or in part in order to modify the law on secondary action as it will stand by virtue of Clause 4 of the Bill. However, nothing that they have said gives grounds for rejecting the fundamental principle on which Clause 4 has been constructed: that there should be no immunity for organising industrial action by workers who have no dispute with their own employer. The amendments would create unwarranted scope for the kind of damaging and destructive secondary action which has been a blot on the industrial relations record of this country. Surely no responsible person would wish to allow such irresponsible industrial action to become rampant once again.
I hope therefore that, if these amendments are not withdrawn by noble Lords opposite, Members of the Committee will vote against them.
7 p.m.
Lord Wedderburn of Charlton: I suppose that the Minister's speech will become known as the philippic contra Priorem because everything he said was a condemnation of the reasoning of 1980. Let me spend a moment on 1980. It is very amusing for the Minister and the noble Lord, Lord Boyd-Carpenter, to

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condemn us for daring to look back to 1980. I was trying to find a common point of departure. It is somewhat difficult in these trade union matters. I do not know how the noble Lord, Lord Boyd-Carpenter, voted on the 1980 Employment Act. However, I see that he now regards the legislation as quite misguided.
Lord Boyd-Carpenter: Perhaps the noble Lord will allow me to intervene. Perhaps the noble Lord can appreciate that a measure may be perfectly appropriate at its time, but that does not mean that for the rest of eternity one has to accept it. I rather hope that the noble Lord believes in progress.
Lord Wedderburn of Charlton: I am obliged to the noble Lord for that enlightenment. I took his reasoning to be argument that he could have applied then since it had so little concrete social content. The Ford case was mentioned. I believe that Ministers in particular should be careful how they speak about the Ford case in view of the importance of multi-national investments. Perhaps it is not altogether wise, in view of the fact that Ford management know perfectly well what happened, to describe the situation as simply dealing with trade union obstruction. It was interesting that neither the noble Lord, Lord Boyd-Carpenter, nor the Minister explained to us, as I invited them to do, how it turned on secondary action. I accept that there were difficulties among trade unions. I shall be happy to discuss that on another occasion. But it is not a case to which this problem applies. Noble Lords did not refer to any other. This vast experience of 10 years which erupts into this enormous prohibition on secondary action produces no other cases except those that we might use. The Minister referred to Wapping and Murdoch. The Minister suggested that it does not matter that Murdoch divided his companies into at least six or seven subsidiary companies. I am quite willing to believe that there are always major objectives other than labour law objectives in setting up subsidiaries. Taxation is always to the fore. But it is odd and interesting that the effect—which is what matters—under the law as it was then of setting up subsidiary companies to deal with distribution and supplies separately meant that the possibilities of lawful industrial action were much reduced.
The Minister stated that in the Dimbleby case the trade union chose the wrong company as a target. Has he ever been in the position, when organising or consulting—as has been my position and that of my noble friend with regard to industrial action—of trying to find out just who is the employer of certain employees? There are some notable court judgments on the matter. In the Dimbleby case two subsidiaries within the group had the same directors, the same office, and the same shareholders. It is right that when it all came out in the light of day in your Lordships' Judicial Committee, hey presto, the union had chosen the wrong company. But what a crazy way to run a labour law system: that it should depend upon chance whether those employees were employed by a subsidiary other than the subsidiary the union thought was the party to the contract, and that this could be changed overnight.
Lord Campbell of Alloway: It does not depend upon chance if you do away with secondary action. That is one of the reasons that I support the Government's decision to do away with it.
Lord Wedderburn of Charlton: Perhaps I may reply to the noble Lord. He is absolutely right. That is the Government's position. They are not prepared to discuss the realities of a balanced and fair approach which allows something on the one hand and something on the other. That is why I took the initial point of the noble Lord, Lord Prior. It is not a policy on secondary action that I share. I made that clear at least three times. The noble Lord, Lord Boyd-Carpenter, no doubt overlooked it. If one takes that point, and asks where is the balance, then one begins to wonder whether those fortuitous events which relate to which company has a subsidiary on this night and that day in that particular case can really be the proper test of rights.
Lord Campbell of Alloway: I agree that the Ford case had nothing to do with secondary action. It was in essence a recognition dispute. Have the Benches opposite any proposals in amendments to deal with recognition disputes? If so, we can deal with that later. However, I still revert to the basic position. There is no bridge between us. I cannot see the justification for having secondary action against an employer who is not involved in the dispute, and the noble Lord, Lord Wedderburn, can.
Lord Wedderburn of Charlton: I appreciate that the noble Lord and I are in that genuine difficulty. My noble friend will be moving a later amendment on the Marshalled List which is pertinent to recognition. I would not describe the issue as simply a recognition dispute. I think that he is much closer to the heart of the difficulties that occurred in Dundee than his noble friends.
Recognition is a problem. Once again, so far we have not been able to get the Government to see that there is a problem about recognition and employers who will not bargain with trade unions. However, I cannot feel that the noble Lord's intervention differs from the Minister's position in this respect. The Minister said that the Government were proceeding step by step and now they wanted to make it clear that industrial action should not be permitted other than in a dispute with the workers' own employer. The noble Lord shares that position.
Perhaps I can entice the noble Lord into the argument by the route that the Minister used. Workers have no control over who their employer is. If we are employed by X plc and the company suddenly decides to pass our section over to a subsidiary, which may improve our conditions of employment, our employer has changed. In ordinary commercial life that happens all the time. The noble Lord knows that. He has advised companies on changing their group structure for purposes quite unrelated to employment. Every time that happens a group of employees find themselves employed by a different employer.

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The Minister should remember that workers have a common interest with other workers. It is as though an employer took over this Front Bench and said that now we were cut off from the Benches behind. We would not accept that. He should consider the point that such workers may well say to their employer that they are in dispute with him and will not handle his goods or have any relationship with him until they have terms and conditions of employment which allow them to co-ordinate. That point is as yet undecided. The Minister may well find that the clause generates litigation and problems of that kind. It is a difficult point and there is some authority on it, both ways; and there will be more.
All the Minister will do is simply proceed step by step to restrict the rights of workers in trade unions. I suppose that next year, if he is still there, he will do so again. He may try to restrict workers' rights to form even bigger trade unions. He may try to intervene more in their relations with employers as to how they finance themselves. He can tell us later in the evening if that is not so.
The Government proceed step by step because they do not believe that trade union organisation in the labour market as an effective force is desirable. Of course they do not; they believe in an individualised market. The Minister nods. In that case why not make primary strikes unlawful? There can only be expedient reasons for that. That is why the Government push aside the International Labour Organisation. I am genuinely surprised that the Minister said—I hope that I quote him correctly—that the ILO will not condemn Clause 4 of the Bill.
Lord Strathclyde: I am confident that the ILO will not condemn Clause 4.
7.15 p.m.
Lord Wedderburn of Charlton: The Minister is confident. He says that in the face of a number of facts, quite apart from the fact that the committee of experts has held the existing law on secondary action to be a contravention of the ILO convention. The committee of experts is not, as the noble Lords seem to think, a group of strange people who descend like gods in a machine to solve problems. It is a sizeable group of the most renowned jurists from every major contributing member country of the ILO. The Minister knows very well who our representative is. I doubt whether he would want to adopt such an attitude towards his judgments.
When the committee of experts says that this range of legislation is already a breach of the convention on freedom of association, the Government can do better than simply say that it is not. That is all they have ever said. They have never produced their reasons. We understand that they have given reasons to the committee but they will not release them because they are confidential. We hope that they will be published soon. In addition, the freedom of association committee, the entire body of the ILO from top to bottom, is of that view. The only thing that the Government have escaped so far is the condemnatory
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paragraph which every member fears and which is never made public because the ILO is not that sort of club. It does not publish a condemnatory paragraph until a member has acted even more badly than this Government.
On that basis I wonder what will happen as a result of Clause 4. If one goes abroad and talks to people about labour law systems in Europe, one first has to make them believe that what is happening here really is happening. Secondly, when one goes back the next year one has to make them believe what else has happened. They find it very difficult to believe. I believe that the ILO will have some difficulty with this Bill. However, we shall leave it there and we shall see.
Lord Strathclyde: International comparisons are a red herring. It may well be instructive to know what happens overseas but no other country has the same framework of industrial relations and trade union law or the same industrial relations institutions and traditions. The Bill is concerned with getting the right framework for this country and not for a country overseas.
Lord Wedderburn of Charlton: In Italy we find that before legislation is introduced there is often considerable comparative debate. I believe that in Paris there is less since they are as confident as the Minister that they are right. That is not always very profitable. There is considerable comparative debate in Germany, and also now in Spain. In Germany and Holland, on the one hand, and in France, Italy and Spain, on the other, there are completely different industrial relations systems. But one does not find the same insular confidence which sweeps away comparisons. With a certain degree of humility they accept that there may be lessons to be learnt from looking at what other people do. However, one must not import measures from an alien industrial relations system. The Government's predecessors learnt that in 1971. It really will not do just to say that we are special and therefore we do not have to look at international standards. International standards matter. They matter to real working people. That is a point of reference which the international trade union movement has made. It is something that the Government should take into account. It is very hard to see Clause 4 as other than a further breach of the convention.
Perhaps I may say one further word about the point raised by the noble Lord, Lord Campbell. I accept that some of the area is technical. I do not mind, and as a fellow member of the profession he should not mind, that it is legalistic. Being legalistic can sometimes be very good, especially if you win. I do not mind that I have made comparisons with other states, as I have explained. However, we on these Benches mind that this complex area of law has become very unfair and is being made more unfair by the Bill. It is not even true, as the noble Lord, Lord Campbell, suggested, that under our present law our strike record has been better than the rest. The figures arose in a previous debate. The rate of decline in days lost per thousand workers in the 1970s and the 1980s in almost

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all Western European countries was much sharper than in Britain. The noble Lord said that our strike record was better. It was not.
Lord Campbell of Alloway: The noble Lord knows full well and far better than I, as a comparative jurist and a professor—I am neither—that those records—for example, for France—exclude a myriad of public sector strikes. I shall not go on to the case of Germany or Italy even though I could enter into the debate. Why not? Because I do not like to bore the Committee.
Lord Wedderburn of Charlton: The noble Lord and I read the same publications. There are problems with everyone's statistics. However, if the French produce statistics—as they do—only for the private sector, and if the noble Lord were to find, as he would, that the rate of decline in the French private sector is steeper than the rate of decline in our private sector, that is a point to be considered. The statistics in Germany and in Italy have their own problems. In some ways in Italy they are better.
Taking all the problems together, there is no way of avoiding that conclusion. If the noble Lord can avoid that conclusion, then perhaps he will explain that to me later. I do not regard that as a big point on this legislation. That is the most important aspect that Members of the Committee must understand. The important point about industrial conflict is that it is largely conditioned by economic and not legal factors. Legal factors are relevant, but the basic factors are economic.
The noble Lord, Lord Rochester, spoke about the drafting of our amendments and his fear that secondary action would go too far. However, he said also that he feared that secondary picketing would go too far. The issue of secondary picketing is not necessarily limited and constrained by precisely the same rubrics as secondary action. Secondary picketing does not appear in these amendments. I am happy to discuss that matter on another occasion because that is an interesting problem.
We shall not press these amendments to a vote. I am sorry that the noble Lord, Lord Prior, will not see his proposals put to a vote again; but perhaps it is better that we should not do so in that it seems that they may now be defeated by a House which supported them so solidly in 1980.
Let us have no doubt about the fact that the proposals contained in these amendments are only a very small part of the policy for dealing with the proper rights of working people balanced against the rights of their own employers and other employers and parties in society. They play a small part but they have provided a very useful testing point to see how extreme and extremist the Government are on this matter. The answer is positive. They are extreme and extremist and that will be their downfall. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 12 not moved.]
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 13:
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Page 4, line 38, leave out from ("done") to ("or") in line 43 and insert ("either—
(a) by workers who have taken part in a ballot which satisfies Part II of the Trade Union Act 1984 together with some or all of the workers who are party to the trade dispute in circumstances where subsection 1A of section 11 of that Act does not apply;").
The noble Lord said: The Minister explained that he will not accept any amendment allowing for secondary action other than Clause 4(3), if that be an exception. We are dealing with Section 17 of the Employment Act 1988 which my noble friend Lord McCarthy had the misfortune, during the time of those debates, to call the "gibberish clause". The Minister and I will have had time to work that out by now. That clause amended Section 11 of the 1984 Act. It said that where there were separate workplaces—and I shall put it very broadly—among those whom a union wished to call to a ballot and then perhaps to take industrial action, there must he separate ballots and separate majorities. That was inserted as a new Clause 1A of Section 11 of the 1984 Act.
Secondly, there came the major exception to the obligation to hold separate ballots of workers employed at one or more different workplaces. That exception applied where there was a common factor or at least where pairs of them had a common factor. I am afraid that the attempt to explain the "gibberish clause" in more ordinary language descends rapidly into similar case, but I shall do my best. They must have a common factor shared between pairs of them in the two workplaces and that common factor could relate to their terms and conditions of employment or to their occupational description.
The eventual code of practice on trade union ballots for industrial action states that that exception—that is, workers in different work places but who have a common factor linking them—would allow the union to ballot groups:
"whose votes can be aggregated forming a group consisting of (a) all of its members; (b) all of its members employed by one or more employers; or (c) members who share a common distinguishing factor".
Proposition (b) has been commented upon. That is not generally accepted as a statement of law properly derived from the Act, but never mind. Therefore, there is a situation in which the Government's own commentary on the 1988 amendments to the 1984 Act states that a union may ballot in one single ballot all of its members employed by one or more employers or members who share a common distinguishing factor.
Therefore, the Government offer a test of common interest. The test of direct common interest is laid down for us in terms of ballots. On those matters we may all vote together even though we are in different workplaces where there is a common factor and where, according to the code, all the union members are employed by one or more employers and are in the group which is being balloted. Through this amendment we say as shortly as is possible that if you are allowed to vote together, then you must be allowed to act together. We know from the Government's commentary that the case can be covered of workers employed by one or more employer, as I read from the

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code. That meets a general test which in British conditions is a reasonable starting point. We are aware that this amendment needs looking at in terms of one or two technical points. However, we tried to keep it as short as possible in order to raise the general principle.
Curiously enough, that principle was invented by the Government. Despite what my noble friend says, when one looks at it long and hard it ceases to be gibberish and makes a kind of sense. The principle in it is that if people are covered by the same bargaining unit and the same bargaining collective agreement, it is crazy to have separate workplace ballots with separate majorities. We heard at the time of the 1988 Act that that was the intention behind the Government's exception. That may be why Section 17 of the 1988 Act has not caused more difficulty than it has.
We then say that it must be right that when it is said that there is no more secondary action, that group should be allowed to say, "Although we may be employed by more than one employer, we can ballot together and so surely there must be an area in which we can act together". It would be remarkable to say to union members that a ballot can be held of all its members at once, a majority vote is obtained but then action can only be taken by those employed by employer A and not those employed by employer B just across the road.
With those remarks, I hope that the Minister can tell us a little more about what was in the Government's mind in that connection. I beg to move.
Lord Strathclyde: The amendment seeks to extend the scope of immunity for organising secondary action beyond that proposed by Clause 4 and beyond the scope of immunity allowed by the present law. That is what I understand the amendment to mean.
It also makes reference to ballots. However, there can be no question of a ballot enabling a union to call for industrial action which is unacceptable in itself; for example, political action or action to enforce closed shop practices. It is perfectly proper for the law to set limits to immunity, and to remove it altogether where industrial action has unacceptable purposes.
The same principle applies in respect of secondary action. There should be no immunity for organising industrial action against an employer not in a dispute with his own workers. But that is what the amendment would allow.
The amendment seeks to remove from Clause 4 the provisions which will allow immunity for calls to take industrial action which are made in the course of peaceful picketing. The present law allows immunity for such calls.
Paragraph 3.11 of the Green Paper, Removing Barriers to Employment, explained why this was necessary. For example, a worker employed by an employer not party to a dispute may be called upon by peaceful pickets not to deliver goods to an employer who is in dispute with his workers. The peaceful pickets may, by doing this, be calling on him to
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interfere with the performance of his contract of employment. However, not to allow such a call to have immunity would risk rendering peaceful picketing impossible, and that is no part of the purpose of Clause 4. However, that is far from giving any sort of licence to picketing which is not peaceful, or which takes place other than at the picket's own place of work.
7.30 p.m.
Lord Wedderburn of Charlton: If the Minister is passing to something else, perhaps I could deal with one point. With respect, our amendment may mislead by being curiously labelled paragraph (a). The clause would read:
"Secondary action satisfies the requirements of this section only if it is done … (a) by workers who have taken part in a ballot … or (b)".
The original paragraphs (a) and (b) would still be included. The amendment does not delete lines 40 to 45. I say that to clarify the point.
Lord Strathclyde: I thank the noble Lord, Lord Wedderburn. In that case perhaps I can return to ballots and Section 17 of the 1988 Act which allows aggregation of votes as the noble Lord described, but only where all the workers are in dispute with their own employers. If there are 20 employees in dispute then their action will be primary action and nothing in Clause 4 will make their action unlawful.
I am not sure that I can give the noble Lord any further comfort. The amendment seems to be incompatible with the principles underlying Clause 4 and I hope therefore that the noble Lord will withdraw it.
Lord Wedderburn of Charlton: The Minister makes a good and correct point that the amendment is inconsistent with the spirit and meaning of the clause. But the clause is so absolutist—to use the word again—that any amendment that does not make it more extreme is against the spirit of it.
I understand that the Government will not accept the amendment. I do not feel that the Minister has answered the reasoning that where we can all vote together there is some rational ground for saying that we should be allowed to take action together. I shall look carefully in Hansard at what he has said regarding which workers can be included in a ballot. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Strathmore and Kinghorne: I beg to move that the House be now resumed. In moving this Motion I suggest that the Committee stage on this Bill be resumed at twenty-five minutes before nine o'clock.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Legal Advice and Assistance (Scope) (Amendment) Regulations 1990
7.35 p.m.
The Lord Chancellor (Lord MacKay of Clashfern)The Lord Chancellor (Lord MacKay of Clashfern) rose to move, that the draft regulations laid before the House on 12th June be approved—[21st Report from the Joint Committee].
The noble and learned Lord said: My Lords, the Motion standing in my name relates to the draft Legal Advice and Assistance (Scope) (Amendment) Regulations 1990 which extend the scope of the Assistance by Way of Representation (ABWOR) Scheme to cover appeals against closure orders made under Section 10A of the Fire Precautions Act 1971 and to include the remaining cases under the Matrimonial Proceedings (Magistrates' Courts) Act 1960. Unlike the green form, which is generally available unless excluded by regulations, ABWOR is only available to the extent the regulations provide. These draft regulations before us today specify two areas where ABWOR will now be available if they are approved.
The Statutory Instrument rectifies an omission from the last ABWOR regulations made in March 1989. Inadvertently the reference to the Matrimonial Proceedings (Magistrates' Courts) Act 1960 was left out of the 1989 regulations. I am grateful to the Law Society for pointing out that, although the 1960 Act has been repealed—which was a ground for taking out the reference—applications for variation of orders under that Act may still be made. ABWOR has always been available for these proceedings and no change of policy has been intended. This amendment now restores the position.
The extension to appeals under Section 10A of the Fire Precautions Act 1971 is, however, new. The Act was amended in 1987 to give fire officers the power to order the immediate closure of multi-occupation buildings where there is a serious risk to safety. This means that fire authorities now have the power to make closure orders against the occupiers of a building including domestic tenants. The effect of an order is to force the tenants to leave the closed premises immediately. Failure to do so can be punished by a fine or imprisonment. Appeal against a closure order lies to the magistrates' court.
As I have explained, ABWOR is only available in specific proceedings if regulations so provide. No regulations were made for this purpose in 1987. I believe that this was because it was not then contemplated that the powers in the Act would be used directly in respect of domestic tenants as opposed to the landlord of the premises in question. The first case involving domestic tenants has only recently come before the court. Since a tenant in this situation may be at risk either of losing his home or of incurring a fine or imprisonment for non-compliance with an order, it is clearly right that provision for legal assistance should be available where necessary. The amendment to the regulations will have that effect.
I am grateful to the learned judge who presided in that case for pointing out that in his view this was a clear case in which legal aid should be available. I hasten to accept his advice and this particular part of the regulations has come forward accordingly. These are important yet brief extensions of the scope of the scheme. I beg to move.
Moved, that the draft regulations laid before the House on 12th June be approved [21st Report from the Joint Committee].—(The Lord Chancellor.)
Lord Mishcon: My Lords, as always the House will be grateful to the noble and learned Lord the Lord Chancellor for the clarity with which he explained these draft regulations. For the benefit of noble Lords who heard the word "ABWOR" and wondered what it meant, perhaps I may explain that it is an abbreviation for "Assistance by Way of Representation". I am sure that all noble Lords present knew that perfectly well, but I thought I should explain that I knew it also.
The noble and learned Lord would be disappointed if, after saying that these regulations are very proper and that we should approve them this evening, I did not take the opportunity briefly to remind him and the House of the great need that there is For ABWOR—if I may use that extraordinary abbreviation again—in matters of great social need.
The noble and learned Lord will not be surprised if I at once refer to appearances before the Social Security Commission. In almost all cases the Government are represented by the legal department of the Ministry. But the legal aid for the people who come before that commission—who are usually people in great need to whom the decision that is to be made is of great import—does not extend to representation for them.
I conclude by mentioning another group of people. They are the people who appear before the Immigration Appeals Tribunal. Those are matters not necessarily of life and death, but certainly matters where life will either be improved or made very miserable. It may be a question of joinder of families, or whatever, before the appeals tribunal in the vital matter of immigration but there is no right of representation through legal aid.
As I said, the noble and learned Lord will not be surprised that I mention those two priorities. I could mention others but, acceding to his request that the House pass the regulations, I ask him not to forget the two I have cited. I express the hope that it will not be too long before we hear that the noble and learned Lord is bringing forward regulations to cover those matters.
With those words, we on these Benches certainly approve of the regulations which the noble and learned Lord has brought before the House.
The Lord Chancellor: My Lords, I am grateful to the noble Lord, Lord Mishcon, for supporting my Motion. Of course, I would be delighted to be in a position to extend legal aid further than it presently extends and perhaps the first area that he mentioned is an important priority in that connection.

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However, I have to say that this depends on resources being made available. The level of resources that the present legal aid scheme takes is high and each year becomes higher. I have looked, with assistance, at the present scheme to see whether some of the money presently available could be used in other ways as suggested by the noble Lord. So far I have not seen any way of accommodating more within the level of expenditure that we have.
Your Lordships know that I am looking generally at eligibility, not behind closed doors, as some professional bodies would say, but with very open doors. I am extremely anxious to have any good suggestions that may be made. I particularly welcome suggestions which might help us to improve the structure of the present system in such a way as to accommodate more within it but without an undue increase in resources. With those words, I commend the regulations.
On Question, Motion agreed to.
Viscount Ullswater: My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.43 to 8.35 p.m.]

Employment Bill
House again in Committee on Clause 4.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 14:
Page 5, line 8, at end insert:
("( ) Irrespective of anything contained in a procedural and collective bargaining agreement, an employer may not unilaterally revoke such an agreement unless and until a majority of employees in the relevant bargaining unit have indicated their support for revocation in an independently conducted ballot.
The Secretary of State shall, in consultation with the Advisory Conciliation and Arbitration Service, draw up regulations under which such ballots shall be conducted.").
The noble Baroness said: This amendment relates to situations in which employers seek unilaterally to revoke procedure and collective bargaining agreements with unions. The main purpose and reason why people join unions is in order to have some influence on their working terms and conditions. For most people it is totally unrealistic to imagine that the employment contract is one negotiated between equals. Except in conditions of extreme labour shortage the employer has everything on his side.
Unions were developed in order to try to redress the balance so that employees collectively might have some means of exerting pressure in order to maintain or improve terms and conditions. That is why simply belonging to a union, and having the right to belong, is not enough on its own. The union needs to be able to bargain collectively on behalf of its members. In order to do that it normally needs a recognition and procedure agreement.
In this amendment we are not seeking to put forward some kind of mechanism for recognition though it is the view of my party, with which I concur, that there should be some kind of statutory mechanism by which unions can achieve recognition if they are representative enough. However, this amendment tries to deal with the situation where an agreement that has been in existence for some time is about to be revoked. In recent years a number of employers have interpreted the Government's continued attack on union rights, with very little counterbalance in the area of employer responsibilities, as meaning that the Government are anti-union. That is hardly surprising considering some of the language used in a number of government publications.
In certain instances such employers have simply withdrawn recognition in situations where they may have recognised the union for a very long time. The reason sometimes given is that they believe the union is no longer representative; that too few employees belong or support the union and therefore the company as a whole would be better off without union recognition. That is what is said sometimes. It often conceals a wish to introduce different and often worse terms and conditions, but management feels that it cannot do that if it has to negotiate with the union.
The amendment proposes that management should not be able to take this action without a test of employee opinion. If the Government are really so keen on ballots, why do they not take the principle a stage further into the realm of employment itself? Why should the employer terminate a recognition and procedure agreement if the employees want it to continue? What redress do employees have when that happens? At present ACAS is unable to help, though in my experience its officials are often keen to do so. They normally advocate against jettisoning an agreement. Why not let the employees themselves decide? Why should the employer have autocratic powers? Apart from coming out on strike, why should the only remedy be to leave a working environment with which, until then, one has been satisfied? Since the Government are in favour of ballots I await the response to this amendment with interest. I beg to move.
Lord Rochester: My difficulty with this amendment is that it clearly means that it would no longer be possible, except with the consent in a ballot of the majority of employees in a relevant bargaining unit, for an employer after due notice to withdraw from a procedural and collective bargaining agreement. Surely it should always be open to both parties to such an agreement to do just that. I sympathise very much with the case presented by the noble Baroness, but not so much that I feel able to subscribe to the amendment.
Lord Strathclyde: I feel that the arrangements proposed by the amendment are neither necessary nor desirable.
First, it must be right to leave it to the parties directly involved in collective bargaining—unions and employers—to decide for themselves if they wish to

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establish or continue such arrangements. Employers must be free to decide for themselves whether they wish to recognise any union, and whether they wish to bargain collectively on any matter.
Secondly, in this country employers and unions do not choose to make collective agreements which are legally enforceable between them. In such circumstances, it would be quite inequitable to seek to impose on one party—the employer—special requirements which had to be satisfied before he could withdraw from a collective agreement which both parties had voluntarily entered into.
Thirdly, the amendment is also unnecessary in so far as it aims to "protect" individual employees whose own terms and conditions are determined (wholly or in part) by the terms of collective agreements. To the extent that this applies, an employer cannot modify the terms of individual employment contracts except as the law allows—which may involve giving sufficient notice or intent to end any such contract. An employee whose employer breaches the terms of his contract has a remedy through the normal civil law as it applies to such breaches of contract.
Finally, I have to say that in so far as the particular arrangements envisaged in this amendment would mean giving ACAS some kind of role in operating the "independently conducted ballots" which are mentioned, that would risk damaging the high reputation of ACAS. ACAS would surely become, as it was at the time when we still had the unworkable arrangements concerning statutory recognition rights, enmeshed in intrusive interference in a way which could only have this effect. I cannot believe that there is any case for running such a risk.
The noble Baroness alluded to the fact that employees had rarely successfully claimed against their employers when there had been a breach of contract. However, there are many examples where precisely that has happened. For example, there are the cases of Rigby v. Ferodo, Keir and Williams v. County Council of Hereford and Worcester, R. F. Hill Ltd. v. Mooney. There are many others.
Any attempt to impose any kind of arrangements along the lines of those proposed in this amendment could only damage good industrial relations. Whatever role there could be for such a system where legally enforceable collective agreements were the norm, it could play no useful role in this country. I hope therefore that the noble Baroness will feel able to withdraw the amendment.
Baroness Turner of Camden: I am not altogether surprised by the noble Lord's response to this modest amendment. Although the Government have said that they are all in favour of ballots, they appear to be in favour of them only within unions and not in relation to employment itself which is what concerns most people belonging to trade unions. People belong to unions in order to protect their conditions in relation to their employer and not in relation to the union to which they voluntarily belong.
I cannot accept what the Government have said as being at all reasonable in the circumstances. If they did
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not like the wording of my amendment, it would have been possible for them at least to accept the principle and to say that they would come back at Report stage. They have not done so. I do not accept what the Minister has said about involving ACAS in a consultative role. That is entirely appropriate given what ACAS has to do and the context in which it operates.
Of course it is right that procedural agreements in this country are not legally enforceable. But we are not talking about a legally enforceable contract. We are talking about circumstances where the Government have decided to revoke a non-legally enforceable contract—in other words, to take away a right which people already have. We wish to give those people who hitherto have been covered by that right the opportunity to vote on whether or not it should continue to obtain in their employment. It has nothing to do with terms and conditions of employment. It concerns simply the procedural arrangements. Those are quite different from the substantive agreements undertaken under those procedural arrangements which then cover terms and conditions of employment. What the Minister is talking about when he mentions terms and what people are paid, and so on, has nothing to do with this amendment or indeed with procedural agreements generally.
However, having said that, I do not intend at this stage to divide the Committee. I shall consider what the Minister has said to see whether or not I should come back with something different at the Report stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.45 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 15:
Page 5, line 8, at end insert:
("(4A) Notwithstanding subsection (4) above, for the purposes of this section an employer who is a member of an employers' association which is a party to a trade dispute shall be regarded by virtue of his membership as a party to the dispute if he is represented by the association in the dispute, but not otherwise.").
The noble Lord said: The words of the amendment are taken from Section 17(7) of the Employment Act 1980. At the risk of being accused of looking backwards, I feel that I should make that clear. The subsection provides quite reasonably that where an employer is a member of an employers' association, he shall be regarded by virtue of his membership of the association as a party to a dispute in which it is engaged if he is represented by the association in the dispute, but not otherwise. That subsection has always seemed quite reasonable. It is matched, as the recent judgments in the docks strike case made clear, on the union side by the union representing its members in a dispute, although not necessarily on the basis of agency, as parties to the dispute. There has been no suggestion in the case law that the provision is oppressive. If one gives a mandate to certain people to negotiate for you, you expect to be bound by that action, so why do the Government wish to change the

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law? They are repealing Section 17 and with it this provision. Do they mean to change the law, or do they say that the law is as the subsection stated without the subsection? It has never been made clear. It is important for us to understand the Government's intentions on this matter before we go further. I beg to move.
Lord Strathclyde: This amendment, like the others tabled by the Opposition, seeks to extend the scope of immunity for organising secondary action beyond that proposed by Clause 4, and beyond the scope of immunity allowed by the present law.
That simply confirms that the Opposition are committed to giving more scope for damaging and disruptive secondary action. In this case, however, the amendment may also be based on something of a misunderstanding, if I have understood the noble Lord.
Among the other changes made to the law on immunity for organising secondary action in the present Section 17 of the 1980 Act by virtue of its replacement by Clause 4, the provisions of Section 17(7) which concern the situation of employers who are members of an employers' association are to be removed.
Clause 4(4) in fact takes account of changes made by Section 18 of the Employment Act 1982 on the terms of Section 17(7) of the 1980 Act. Prior to the 1982 Act, Section 17(7) had the effect of ensuring that members of an employers' association were not to be treated as parties to a trade dispute merely because the association to which they belonged was such a party. After the 1982 Act, Section 17(7) in fact had a different effect, and made members of an employers' association represented by it in the dispute parties to that dispute for the purposes of secondary action, when otherwise they would not be parties.
Clause 4 corrects this anomaly. The Government's policy is that where there is a dispute between a member of an employer's association and his workers, the fact that the association is a party to that dispute should not have the consequence that any other members of the association would fall to be treated as parties. Clause 4(4) removes that area of doubt and secures the intended policy result. On the other hand, the amendment appears to recreate that anomaly. Accordingly, Amendment No. 15 is incompatible with the terms of Clause 4 and with the principles upon which it is based. Therefore, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Wedderburn of Charlton: It was always my intention to withdraw the amendment. However, I must say that the Minister's explanation has not made it easier for me to do so. Indeed, I could not recognise the juridical history which he put forward. That was perhaps due to my inability to follow the speed with which he delivered his speech. I shall have to read what he said in Hansard.
I always understood that subsection (7), despite the 1982 Act, still provides very broadly to make an employer a party to a dispute where he was
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represented by the association in it. I did not think that the 1982 Act had denied that proposition. We see that it is the Government's intention, once again, to narrow the area in which employers can be parties to the dispute. That is the critical feature once one removes all gateways to legality for any type of secondary action. The Minister has certainly given me that broad lesson. I shall read the details of what he said in Hansard tomorrow. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 16:
Page 5, line 11, at end insert ("whether or not that act relates also to the dispute in contemplation or furtherance of which the secondary action is done.").
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 17 which deals with the same point but in a slightly different way. It concerns the genuine difficulty which we have; namely, accepting the Government's policy for the moment—and for what is left of their time—and looking at the clause as it stands.
For the first time the clause, very helpfully, introduces the concept of a primary dispute as a legal term. It is referred to as "primary action". That means that we now have both primary and secondary action as terms of art. The basic distinction is that in primary action the employer is party to a dispute with his own employees. In subsections (4) and (5), this distinction is spelt out, especially in the latter subsection where in the second paragraph "primary action" is said to be the action mentioned in subsection (2),
"where the employer under the contract of employment is the employer party to the dispute".
The first paragraph of that subsection reads:
"An act in contemplation or furtherance of a trade dispute which is primary action in relation to that dispute may not be relied upon as secondary action in relation to another trade dispute".
Therefore so far, so good. However, we worry that it would be possible for the courts to be in difficulty in a situation where disputes overlap. We have this point especially in mind because we believe that there are situations in which the interests of employees employed by different employers overlap but which also include different features peculiar to each group. Where the subject matter of the dispute overlaps, the objective of the Government appears to be that that dispute, under subsection (5), would be excluded as being secondary action.
However, one wonders whether in terms of an overlap the court may say "Yes, it is primary action; but it has a relationship". Again, the words in subsection (5) are very important. They read:
"An act in contemplation or furtherance of a trade dispute which is primary action in relation to that dispute may not be relied on as secondary action in relation to another trade dispute".
The court may say, "It is so closely intertwined that it is obviously the objective of those organising the second part of industrial action that it should be a main or possibly the major objective to assist the

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first". If it is the Government's intention to exclude the possibility of such a finding, we think that an amendment is needed. I suggest to the Minister that he should look especially at Amendment No. 17, and in particular to the closing words which speak of the
"relationship between such an employer and the employer party to that dispute".
It is a question of whether the Government have any chink open in their mind on this matter. Perhaps the Minister will be able to show me that my fears are unfounded. I beg to move.
Lord Strathclyde: Before I comment on these two amendments, it would be helpful if I explained the purpose and the effect of the subsection in Clause 4 which they seek to modify. Subsection (5) ensures that where workers take primary action in contemplation or furtherance of a trade dispute with their own employer, that cannot be held to be secondary action simply because looked at from the point of view of another employer it has secondary effects. For example, if a primary dispute closed a factory one result might be—albeit as a by-product—to cut off supplies to another employer who was also involved in a different dispute with his own workers.
The first limb of Clause 4(5) therefore protects such primary action. It will be for the courts to determine, where relevant proceedings are brought before them, whether any particular call to take industrial action is primary or secondary. But Clause 4(5) ensures that genuine primary action will not fall foul of the provisions intended to prevent secondary action.
The second limb of Clause 4(5) provides what is, in effect, the only appropriate interpretation of primary action for the purposes of the clause. That is to say, action where the employer under any contract which would be affected by the action is the employer party to the dispute.
These amendments attempt to modify the provisions of Clause 4(5). However, they are inappropriate, and contrary to the intended effects of the clause as it stands.
Amendment No. 16 appears to be intended to produce the result that if action is primary in nature to any extent at all, then it is to be treated as primary action even if it is predominantly secondary in nature. That is simply unacceptable. In circumstances where it may be arguable that industrial action has been organised in contemplation of one dispute or another or, perhaps, both, it should be for the court to determine which dispute the organisers were contemplating or furthering according to normal principles. The issue is no different from the issue which could have confronted the courts at any time since the Trade Disputes Act 1906 as to whether organisation of particular industrial action had the benefit of the trade dispute immunities when it might possibly have been organised to further a dispute which was not a trade dispute.
This is even more readily apparent in the case of Amendment No. 17. The change this proposes to the second limb of Clause 4(5) would mean that action which would fall to be treated as secondary action
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would, in fact, become primary action if it happened to be about some relationship between two different employers. There is no justification, and no need, for any such provision.
I feel that these amendments would confuse and subvert the intended effects of Clause 4. Therefore, I hope that the noble Lord will read what I have said in Hansard and that he will, in the meantime, feel able to withdraw the amendment.
Lord Wedderburn of Charlton: My students would say that I often confuse, but that I never intend to subvert. I am grateful for the Minister's explanation on the matter. However, his reply disclosed one rather important issue. I believe that he said that where there was a trade dispute with one's own employer that would be primary action so long as it predominantly related to that dispute. Predominantly is a very important word. However, it is not exactly what the second paragraph of subsection (5) says. It reads:
"Primary action means such action as is mentioned in paragraph (a) or (b) of subsection (2) where the employer under the contract of employment is the employer party to the dispute".
There is no questioning that wording. If we look back to subsection (2) it says:
"There is secondary action in relation to a trade dispute when, and only when",
it induces a breach of the contract of employment, and so on.
The Minister said that it must not only be in relation to the trade dispute, but that it must be predominantly in relation to it. I hope that he will take the matter away and discuss it further. It is simply a matter of avoiding litigation. I appreciate the fact that these matters are more easily understood when set out on paper than in debate. But if the Government wish to tie the matter down in the way indicated in his speech by using the word predominant as part of the test of establishing primary action, they should really consider including the word in the legislation at the next stage. It is not so at the moment. Our amendments may not be helpful. The Minister will not allow himself to be helped by them; I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 17 not moved.]
On Question, Whether Clause 4 shall stand part of the Bill?
Baroness Turner of Camden: We now come to a discussion of Clause 4 as a whole. I oppose the Motion that Clause 4 stand part of the Bill. We have attempted to amend the clause. As has been said, it removes immunity in tort from all secondary action—I prefer to call it sympathy action—other than that arising during the course of peaceful picketing by workers at their own place of work.
In making those proposals, the Government are departing from their earlier philosophy, enunciated by their then Secretary of State for Employment, the noble Lord, Lord Prior. When dealing with previous amendments my noble friend Lord Wedderburn spelt out in great detail what was involved. Back in 1980,

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the noble Lord, Lord Prior, identified, as we have seen, two gateways to legality. I make no apology for repeating the argument. I believe that it is important.
Action taken against a first customer or supplier, or an associated employer, fell within the scope of the immunities found in Section 13 of the Trade Union and Labour Relations Act 1974. According to the noble Lord, Lord Prior, those two gateways to legality were necessary if the freedom to strike were not to be rendered illusory. The noble Lord, Lord Boyd-Carpenter, who, I am sorry to say, is not now in his place, asked whether that meant that we supported the 1980 Act. We do not, but we believe that it is better than what is proposed in the Bill, because the Government have now abandoned that philosophy. It will now be possible for an employer merely to split up his operation into several so-called subsidiary companies and to transfer work to one of them when facing a dispute at a particular company.
The union will not be able to match that action by starting a dispute at the site at which the work has been transferred even if it legitimises that action by a ballot of the workforce. Surely that cannot be regarded as even-handed. It blatantly favours the employer at the expense of the workers.
I have never understood why the Government should apparently regard sympathy action as so discreditable. On the contrary, as I said on Second Reading and again this afternoon, it has the merit of being disinterested and unselfish. If workers are prepared to give assistance to colleagues who are indirectly involved it is because they understand that their colleagues' battle could be their battle the following day, especially as under the propositions contained in the Bill the company could well be the same company but diversified to prevent the union exercising full leverage.
There can be serious questioning of whether the proposals are compatible with the United Kingdom's international obligations under the ILO Convention No. 87. I make no apology for referring again to the ILO. We should not hold the ILO in contempt. It has already ruled that the Government have introduced unacceptable restrictions on the right to strike, and further legislation cannot therefore be justified. The ILO committee of experts has observed that secondary action is protected by Convention No. 87, especially where the action,
"relates directly to the social and economic interests of the workers involved in either, or both, the original dispute or the secondary action, and where the original dispute and the secondary action are not unlawful in themselves".
I cannot agree with Members of the Committee opposite that we can disregard ILO conventions. At one time the United Kingdom government were in the forefront of progressive legislation and support for international standards. We cannot abandon international standards. We are becoming increasingly out of step with other countries in Europe. No other country in Western Europe prohibits sympathy action in all circumstances. In Belgium sympathy strikes are lawful; in France sympathy strikes for political
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reasons are not lawful, but such disputes with an occupational or professional aim are; in the Netherlands the right to strike is virtually unlimited except where manifestly unreasonable; in Denmark sympathy strikes are permissible where there is a reasonable degree of interest between the two groups concerned; and in Germany, where the restrictions are the most tight, as my noble friend Lord Wedderburn said, there are industry-wide collective agreements, and workers are held to have an interest if covered by the same collective agreement.
The picture throughout Europe is that we have the most restrictions. The position will be even worse if these provisions are carried. I repeat, I do not believe that the Government can go on ignoring European practice indefinitely. Nor does there seem to be any pressing need for the provision in the Bill based on United Kingdom industrial experience. I was told recently by the CBI that when asked about obstacles to competitiveness in the run-up to 1992 its member firms did not include industrial relations in the United Kingdom as one of the obstacles. They all identified the lack of an appropriately skilled workforce and the low educational attainments of many school leavers as the prime cause for our lagging behind when it comes to competition with the rest of Europe.
In response to the Motion, could we please not have reference yet again to Fords at Dundee? I repeat again that we are not talking about secondary action. The noble Lord, Lord Campbell of Alloway, was correct when he said that the issue was basically one of recognition. If we had a fair and reasonable way of settling such issues, the problem would not have occurred; but the Government abandoned the provisions of the Employment Protection Act in that regard and have not replaced them with anything else. Incidentally, I am surprised that Members opposite, in view of the Government's alleged concern for individuals and individual choice, are apparently prepared to favour arrangements where union officials reach agreements with managements about who should represent the workforce before a brick has been laid and a worker appointed. What employee choice is involved in that? We are dealing with another of the Government's ideological obsessions about unions. They seem to believe that another helping of anti-union legislation will assist them to win the next election. I hope that we shall prove them wrong if that is their objective. This clause—unhelpful, unnecessary and desperately unfair—should not stand part of the Bill.
Lord Rochester: I am in something of a dilemma concerning the Motion of the noble Baroness that Clause 4 should not stand part of the Bill. The Committee may recall that at an earlier stage I felt obliged to oppose or any rate not to support—which I suppose amounts to the same thing—either Amendment No. 11 or Amendment No. 12, two of the main amendments concerning secondary action under the clause. On the other hand, I very much agree with the noble Baroness that it is important that there should be even-handedness between employers and employees.

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The Minister did not altogether succeed in dispelling the fear that I expressed earlier: that the clause may encourage the unscrupulous employer artificially to divide his company into separately owned organisations, simply to defeat what would then become secondary action. Therefore if the noble Baroness presses her Motion to a Division, I am afraid that I shall not be able to support the Government.
Lord Renton: I am sorry to hear the noble Lord, Lord Rochester, say that. From time to time during the past 10 years he and his party and we on this side have agreed that what should be done on behalf of the members of the trade unions, in accordance with their wishes, and what should be done in the national interest are matters on which our views have coincided.
I was surprised by the speech of the noble Baroness, Lady Turner of Camden. She seemed to be going back many years in the views that she put forward. It has sometimes seemed to many of us on our side, and to members of the public, that the Labour Party have considered it more important to try to follow the maxim, "Workers of the world unite!" and do whatever a minority dictated, than to follow the maxim that in the case of each trade union and each strike we should act according to the wishes of the members and try to safeguard the national interest.
Clause 4 acknowledges the right to strike so long as reasonable provisions laid down by Parliament are observed. We must make up our minds. Should we say that the wishes of the members of a union are to be paramount together with the national interest? Or should we follow the wishes and sometimes the dictates of trade union leaders in other unions which have a strong influence on the union which may be striking? Are they to have the right to carry the dispute into fields with which the members of the union are not concerned?
Clause 4 should always ring a bell in the minds of Members of the Committee opposite—even though in another context! I should have thought that this Clause 4 dealing with secondary action has got it right. It is the next stage in ensuring that the wishes of the members of the unions principally concerned in the dispute should override the purely party political interests of other unions or of the Labour movement as a whole. That may conflict with the national interest. So despite the strong feelings and opinions of the noble Baroness, Lady Turner of Camden, and, I was sorry to note, the views of the noble Lord, Lord Rochester, I hope that the Government will stick to their guns on this Clause 4.
Lord Strathclyde: Clause 4 of the Bill removes immunity for organising or threatening to organise secondary industrial action. It thereby establishes the principle that an employer should have a remedy if he is threatened with industrial action even though he is not a party to a trade dispute. The only exception is to be for inducing secondary action in the course of peaceful picketing as the current law allows. The clause makes no change to the legal liability of anyone taking part in industrial action as my noble friend Lord Renton explained. Its terms are relevant to the
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legal liability of those persons or bodies who call for or threaten to call for secondary action. Nor does it affect immunity for organising primary action—a dispute between workers and their own employer.
Perhaps the most important justification for the clause is the simple point of principle that no employer should be at risk of having industrial action organised against him if he is not party to a trade dispute. The noble Baroness, Lady Turner, explained at some length how the ILO had found the Government guilty of all kinds of transgression against what is fair, right and proper. I hope that this is the last time we shall hear about the ILO—
Noble Lords: No!
Lord Strathclyde: If that is the case, must say yet again that the Opposition are not giving all the facts. It is untrue that the ILO has condemned the present law. It is equally untrue to suggest that the ILO has yet condemned Clause 4, as drafted. We have every reason to believe that that body will not condemn Clause 4. However, what is true—
9.15 p.m.
Lord McCarthy: If I may say—
Lord Strathclyde: I hope the noble Lord will let me finish what I have to say. The whole point is that we never reach the end of the story on the ILO. Let us get the position absolutely right. Last summer an ILO advisory committee made an observation on aspects of UK compliance with ILO Convention No. 87. There was absolutely nothing extraordinary about that. The very same committee, in its report, queried aspects of the law in various European countries. There is nothing wrong with that. A process of dialogue between that kind of committee and the governments of member countries of the ILO is quite normal. The United Kingdom Government have responded to the committee's observations. However, as is always the case, the response was given to the ILO in confidence. Members of the Committee opposite know that.
Finally, it is significant that the TUC subsequently withdrew the complaints it made to the ILO advisory committee after it issued its 1989 report. Clearly, the TUC had no confidence that the ILO would uphold its complaints. I wish that Members of the Committee opposite would stop going on about the ILO.
Lord Wedderburn of Charlton: The noble Lord has not quite sat down. I found his intervention most helpful. It is perfectly true that the committee of experts has also raised the matter of contraventions of the convention with the German Government, the Government of the Netherlands and, I believe, the Government of Greece. Is the Minister aware that the Government of the Netherlands—I understand that this is also true of the German Government according to a report which I recently read—have entered into a constructive dialogue with the committee to try to reduce the incidence of contraventions in their legislation? Without disclosing the confidential communication to the committee, will the Minister assure us that this Government have also entered into

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a constructive dialogue with the committee to bring our legislation into conformity with the convention, as those other governments have promised to do?
Lord Strathclyde: As I understand the position, as the TUC has withdrawn its complaints to the ILO, there is simply no need to have any constructive negotiations because there are no complaints to discuss. No doubt we shall enjoy some more debates on the ILO as the Committee continues on its course through the Bill.
The noble Baroness, Lady Turner, talked about Ford USA in relation to Dundee. The behaviour of the TGWU in response to the plans of Ford to set up a plant at Dundee illustrated the potential scope, through blacking, for lawful organisation of targeted secondary action, and the damage that such action might cause to new firms and to overseas investment in this country. The noble Baroness cannot deny that that is the case. There may well have been an argument about recognition, but there was still that threat to do untold damage to inward investment in this country. As a result, 1,000 jobs were lost in Dundee.
Lord McCarthy: When the noble Lord says that the potential for damage was there, what he means is that it was not actually there.
Lord Strathclyde: That is purely an argument of semantics. We have now got rid of that potential. If Members of the Committee opposite support that kind of action, it is entirely a matter for them. Perhaps they do not go to Dundee very often. I do. It is difficult to talk to the people of Dundee on this issue following the loss of the Ford plant.
This clause will give an employer a remedy against attempts to organise industrial action against him even though he is not in dispute with his own workers. It is much more straightforward than the provisions of Section 17 of the 1980 Act. It reflects the essence of a worker's real employment relationship; that is, his relationship with his own employer.
I suggest that the real reason that the Labour Party is opposed to this clause—I regret the fact that the noble Lord, Lord Rochester, does not agree with the Government's position on the clause as he has agreed with us throughout our discussions—
Lord Renton: Does my noble friend recollect that in earlier debates on this vital question of secondary action the Liberal Party in those days made common cause with us?
Lord Strathclyde: Yes. The noble Lord, Lord Rochester, has done so again today, so I am not sure why he has decided that Clause 4 should be opposed.
Lord Rochester: I thought that I had made my position absolutely plain. The noble Lord had not altogether dispelled my fear that, in order to escape, employers in that situation might seek to set up separate companies in order to defeat what would then become secondary action. Noble Lords opposite may disagree, but I am entitled to express that view which I consider to be important. In effect, I have supported the Government on a number of
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amendments. I did not feel able to support them on that point and I cannot therefore conscientiously support the clause in total.
Lord Strathclyde: That is an entirely reasonable position for the noble Lord, Lord Rochester, to take. However, he will admit that there is no evidence to suggest that any employer ever has gone or ever will go to all the sweat of setting up separate companies so as to create what would now be illegal secondary action, whereas, by supporting the socialists and opposing the clause, he allows such things as the blacking of Ford USA, Dundee to occur. We have seen the threat and potential disaster that that has caused.
The Labour Party opposes the clause because its union paymasters do not like the constraints that the present law places on their ability to threaten industrial action in the hope or expectation of regaining the positions of unrestrained power and undeserved influence that they once enjoyed. There is a saving grace: the British public will be left in no doubt that the Labour Party is, has always been and is determined to remain the party of the bully-boy's charter and the flying picket. I recommend that the clause stand part.
Lord Rochester: Before the noble Lord sits down and if the Chairman will allow me, I want to make my position plain on one other point. The noble Lord said that in this I was supporting the Labour Party. I am not supporting the Labour Party. I did not say that I would vote with the Labour Party. I said that I did not find it possible to vote with the Government.
9.27 p.m.
On Question, Whether Clause 4 shall stand part of the Bill?
Division called.
The Deputy Chairman of Committees (Baroness Lockwood): The Question is, That Clause 4 stand part of the Bill.
In the absence of any Lord to say "Not-Content" at the second Question, I declare that the Contents have it.
Clause 4 agreed to.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 18:
After Clause 4, insert the following new clause:
("Industrial Action
In this Act, the Employment Act 1982, the Trade Union Act 1984, the Employment Act 1988 and sections 13, 62 and 62A of the Employment Protection (Consolidation) Act 1978, "industrial action" means concerted action in combination by persons under a contract of employment or a contract under which they personally do work or perform services for another, done in contravention of one or more obligations under such contract, or a concerted refusal by such persons in combination to fulfil their obligations under such contract.").
The noble Lord said: This amendment proposes the addition of a new clause to the Bill. It is one of two that we are moving on industrial action to which this part of the Bill relates. In the light of debates that we have had, especially those on Clause 4, and with regard to the firm way in which views have been exchanged across the Chamber, I am well aware that a genuine difference of approach makes it unlikely

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that the amendment will be acceptable to the Benches opposite. However, that difference of approach presents itself to us as a starting point with regard to the basic civil liberty of the right to withdraw one's services in the employment relationship.
I suspect that the contrary approach will interpret a civil liberty in a much narrower sense. However, despite that the amendment is relevant to both approaches. One might consider that both approaches would agree that an employee should not suffer disadvantage in law except where some wrong had been done. That is the normal situation with strikes and industrial action. Although we shall later suggest that the time is coming to change the draconian rule that the system represents, in our system the employee who goes on strike is seen to break the contract of employment and can normally be dismissed. However, since 1971 industrial action in some areas of law has had an odd meaning. The industrial relations legislation which introduced this concept has a new and wide meaning. It refers to industrial action which was introduced to exclude the new clause on unfair dismissal. That was a bipartisan addition to our new labour law in that period, especially in what is now Section 62 of the 1978 Act and Clause 8 of this Bill. That refers to dismissal of those taking part in industrial action. The rule has been that the employer has the right so to do but cannot victimise only some of those taking part. It has been described both in judicial and commentary authorities, in the words of Sir John Wood as having the objective:
"ostensibly to remain neutral in the face of industrial action".
In 1977 Mr. Justice Phillips described the curious area where the employer must dismiss all those taking part to avoid actions in the tribunal for unfair dismissal. But the phrase "those taking part in industrial action" has a very wide meaning beyond breach of contract of employment. Mr. Justice Phillips called it a kind of legal laissez-faire or neutrality in industrial disputes.
We say that in many respects the Government have departed from the area of neutrality in so far as that was a correct description. In this Bill they departed from such neutrality in Clause 8 in particular. Clauses 4 and 6 do not represent anything like a bipartisan attitude to these matters.
Before proceeding I simply point out that there is one other area where industrial action as a legal term occurs without a breach of the contract of employment; namely, in relation to the employees' continuity of service for the qualifying period. Since 1965, again on a bipartisan basis, that has been placed on the footing of industrial action freezing but not breaking the continuity, whether or not a breach of contract occurs. There seems to be no suggestion, and I hope that there will be none, from the Government that that should be changed.
Step by step, as we have heard this evening, there has been an approach towards a new attitude. Therefore we say in the amendment that in the important areas where rights and obligations rest upon the concept of industrial action where employees suffer disadvantage from the concept of industrial
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action, as a general matter that should arise only when there is a breach of the contract of employment. It may be said that that is not a very great step to take. I would agree with that. Much of the industrial action that occurs is a breach of the contract of employment. However, in regard to dismissal it is quite important.
The Minister was kind enough to write to me setting out some of the authorities on which he will rely later in the Bill. One of those is the case of Power Packing Casemakers v. Faust of 1983 in the Court of Appeal. In that case workers who took industrial action in the form of an abstention from overtime work which they were not obliged to undertake, even though they committed no breach of contract, were held in this context of dismissal under Section 62 to have engaged in industrial action within the special meaning of that part of the law. Lord Justice Stephenson said that the phrase "industrial action" covered:
"even more clearly a refusal used as a bargaining weapon whether it is a breach of contract or not".
We say that because industrial action is not a wrong in itself and because the balance of rights and duties has moved so very strongly against, in particular, the individual employees. The organisers of industrial action do not commit a tort—a civil wrong—unless they induce employees to do wrong in terms of their contract of employment. Employees should have their rights assessed in terms of their contract of employment.
I suspect that those on the Benches opposite will look back—we shall not blame them as they blame us when we look back—and say, quite rightly, that a Labour Government were one of the administrations—the Minister is nodding—who agreed to this structure of the law and contributed to it very strongly in their legislation of 1974 to 1978. That is true, but some of us have learnt over the past 10 years. We have learnt that things could be worse than we thought. One of the lessons that we have learnt from that period is that the protection traditional to British employees is too fragile. If one believes in individual rights at work it is proper to say that an individual employee should not suffer disadvantage, at any rate unless he or she breaks the contract of employment. That is not a very radical or Bolshevik proposal to put before the Committee.
The bipartisan tradition is better represented by that than it is by the opposite. The liberty of association should be preserved in practice in that way, or at least as a first step. That is the general purport of our amendment. I appreciate that there are many points that could be made about whether any further Acts or provisions in Acts should be added to the list in the amendment. We have tried simply to set out the major provisions of 1982, 1984 and 1988 and one or two other sections of the 1978 Act. If the Minister got as far as that in considering the amendment we should be quite pleased because he will have taken it seriously, as we hope he has done. I beg to move.
Lord Strathclyde: It is certainly true that the term "industrial action" appears, or will appear by virtue of

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provisions of this Bill, in a number of statutes without the sort of definition proposed by this new clause. However, to accept the new clause would mean that those provisions, in some cases, could have quite different effects from those which would otherwise apply. The Government believe that any such change would be highly undesirable.
What the new clause completely fails to address is the fact that it is quite possible for workers to bring pressure to bear on their employer, or for workers to be induced to bring pressure on their employer, by means which do not involve breach or interference with the terms of the contracts under which they work.
There is absolutely no reason to assume that the only damaging action which workers can take to bring pressure on their employer necessarily involves breach or interference with the performance of their contracts. For example, the Court of Appeal judgment—mentioned by the noble Lord, Lord Wedderburn—in the case of Faust v. Power Packaging Casemakers recognised that a refusal to do voluntary overtime could constitute "taking industrial action" if it was motivated by certain considerations.
As regards employees' individual employment protection rights, courts and tribunals have rightly been reluctant to place a rigid limit on activities which might constitute "industrial action". In addition to the Faust case, they have found that standing round a new machine for a short time to prevent the employer from testing its operation (Thompson v. Eaton Ltd. 1976), or holding a disruptive union meeting at the peak point of production (Rasool v. Hepworth Pipe Co. Ltd. (No. 1), 1980) constitutes "taking industrial action" for the purposes of Section 62 of the 1978 Act. What the employees did in such cases might arguably not have involved interference with their contracts of employment, but I think it is clear enough that it is right to treat it as "industrial action".
It follows that if such activities prevent an employer providing work for other employees, the provisions of Section 13 of the 1978 Act should disqualify them from entitlement to guarantee pay, as envisaged by the terms of Section 13(2).
As regards immunity for threatening or calling for industrial action, the position is rather different. There can be no liability in tort for doing something which does not involve inducement to breach or interfere with the performance of a contract. In that context, therefore, if a union is required to ballot its members before calling on them to take industrial action, it will not need to do so for the purposes of protection against liability in tort if it is calling upon them to do something which does not involve any such breach or interference.
However, Section 1 of the 1988 Act gives union members the right to restrain their union from calling on them to take industrial action whether or not such breach or interference is involved. That issue was debated at length during the passage of the 1988 Act in your Lordships' House. I hope it will suffice if I simply remind the Committee that there were sound
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reasons for this approach, including the fact that whereas union members will not have much difficulty in deciding whether they are being called upon to take industrial action, it could be difficult for them to know whether they were being called upon to breach or interfere with the performance of their contracts; and as employees, they would be liable to non-selective dismissal if dismissed while taking part in any industrial action whether or not the action involved any breach of or interference with the performance of their contracts.
As the noble Lord, Lord Wedderburn, pointed out, when the Labour Party enacted the provisions of Section 62 of the 1978 Act it saw no need to define industrial action as it now proposes. It was right not to do so, and to leave it to courts and tribunals to recognise industrial action on the basis of the description of events given to them in disputed cases.
It is naive to suppose that workers cannot cause damage and inconvenience to their employer by doing, or refusing to do, something in a way that does not involve actual breach of or interference with the performance of their contracts. Accordingly, it is right to treat such activity, for relevant purposes, in the same way as industrial action such as a strike which does involve breach of contract. This new clause, however, would adopt exactly the opposite approach.
I hope that the noble Lord, Lord Wedderburn, will consider carefully what I have said and will agree that the approach which he proposes in the new clause would not be the best one to take.
Baroness Seear: I hope that the Government will think again about the proposed new clause. Over recent years the whole sphere of industrial relations has become more and more legalistic and restrictive by law. We, on these Benches, agreed that some changes in the law were necessary. However, we believe that the Government have gone much too far in their legalistic approach.
I was always taught to believe that the more we kept people like the noble Lord, Lord Wedderburn of Charlton, out of industrial relations, the better. These matters should be settled without this highly legalistic approach. The Government have over-encouraged legalism and made it much more difficult for decent industrial relations to develop free from legal intervention. The amendment is desirable to the extent that it would reduce the legalistic approach. The Government have been pursuing trade unions beyond the point at which it is sensible and reasonable. Some relaxation is long overdue.
9.45 p.m.
Lord Lucas of Chilworth: I am surprised that, with her great knowledge of these matters, the noble Baroness should accuse the Government of being over-legalistic. All that has happened over recent years is that the Government have attempted to get in front of the barriers that the trade union movement have regularly set up in a legalistic framework backed by industrial action to circumvent the best endeavours of our better industrial companies towards industrial relations.
Baroness Seear: If the noble Lord will allow me to intervene, many of our best industrial companies share the view that we have become overly legalistic.
Lord Lucas of Chilworth: That is perfectly true. They do share that view. It is something which they would not wish were it not for the actions taken in recent years which have circumvented the law which has been in place and has given rise to the situation that other laws have to be put in place to give a balance to precisely the argument to which the noble Baroness refers.
Lord Strathclyde: Perhaps I can briefly say to the noble Baroness that she must be aware that by this current Bill we get rid of the closed shop and secondary action; and we are about to get rid of unofficial action. We are making things less and less legalistic. We are getting rid of the type of problems in which the noble Lords, Lord Wedderburn and Lord McCarthy, seek to indulge. We are less legalistic. It is precisely this new clause that would create the kind of problems that the noble Baroness does not wish to see.
Lord Wedderburn of Charlton: I agree with the noble Baroness, Lady Seear, that lawyers should retreat so far as possible from industrial relations. My only amendment to her proposition is that they should be preceded by Ministers of the present Government.
The Minister said some interesting things, and perhaps I can comment quickly on two. We are more and more winkling out the Government's approach. Now that they have reached this point of their step-by-step approach—I do not mean the Minister personally—they are becoming over-confident; they are beginning to explain what the Bill is about.
The Minister refers to workers who bring pressure to bear on their employer; later he said that employees who inconvenience their employer must suffer disadvantage whether it is a breach of their contract or obligation or anything else. We do not hear very much of employers who bring pressure to bear on their employees or who inconvenience their employees.
This does not amount to pressure and disadvantage used to make employees work to their contract, which we say is the rule of law. The rule of law is that one works to one's contract and is made to work to that contract, not necessarily by specific performance but by appropriate sanctions. To make the worker work as opposed to working to his contract—which is what this Bill is involved in—without inconvenience to the employer, is the labour law of the master and servant Act and the Poor Law. It contains precisely that philosophy. We shall read Hansard. The Minister may want to amend what he said.
The Minister is right that the present case law from Thompson v. Eaton, Rasool, Faust, and a large number of other cases, makes it clear that industrial action in this area of dismissal and strikes does not depend upon breach of contract. I am delighted that we are agreed on that point. I knew that we would agree because of our correspondence. That will be important when we come to Clause 8.
It is in this area of dismissal that this amendment could have had its most important effect. It is a paving
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step towards the debate. I say now that it will be a complex debate. It will need to consider a large number of legal authorities; but that is what this Chamber is for. I hope that when we come to Clause 8 we shall at least have saved a little time by having had this useful exchange on this point of breach of contract. I am sorry that the Minister will not consider the matter further. I agree with the noble Baroness but this is an area which should be looked at, in a sense, quite apart from the Bill. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 [Minor amendments relating to ballots]:
Lord McCarthy Lord McCarthy moved Amendment No. 19:
Page 5, line 25, at end insert ("provided that where it is not reasonably practicable for members of a trade union who are employed under such contracts to be included in the ballot, a failure to accord them entitlement to vote shall not constitute a breach of section 11 of that Act.)".
The noble Lord said: I hope that the Minister is not entirely ad-libbing tonight. He seems to be getting off his script on occasions. If he is telling us that the more restrictions on immunity we have and t he fewer rights we have the less law we have, so that if we have no immunities and no rights we would be totally free, that is a novel doctrine. On the other hand, if he is saying that he wants to get rid of law, not just law which binds upon employers but law per se, perhaps he will follow this amendment and, if he will leave his brief, say that he will look at it sympathetically.
This minor amendment deals with a clause which the Government themselves say is putting through a series of minor amendments. Therefore, we have a minor amendment to a clause which itself introduces minor amendments. This very small amendment releases the law a little in ways that may help workers a little and which possibly may find support from the Government.
The purpose of Clause 5 is to add a number of additional restrictions and to widen the area of balloting. That is why the noble Baroness, Lady Seear, does not like it. She says that it is giving us more and more law. The purpose of the first part of the clause is to extend the scope of the balloting provisions to cover strikes involving contracts of service as well as contracts of employment. Therefore, restrictions which previously merely applied to contracts of employment are now to apply to those who may be involved in industrial action and who have contracts of service only: in other words, the self-employed and, more particularly, those in the construction industry who are working in some form of labour-only sub-contracting.
The purpose of the amendment, which, as I said, is a very modest one, is to introduce that familiar concept, the reasonable or practicable caveat, into requirements of ballot legality; to say, in fact, "Yes, of course, you must organise now or seek to organise a ballot in terms of the 1984 Act and the 1988 amendment. However, if it is not reasonably practicable to include all the workers who are under

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the kind of contracts covered by the extension of the clause, the mere fact that you have not included all those workers does not make the action unlawful".
The Minister will know, and no doubt will tell us, that this whole subject was raised, debated and rejected in another place. At that stage the Minister said (cols. 197–200 of Commons Hansard) that Section 11(1) of the 1984 Act provides only that one must include those members of a trade union who believe they will strike and if the trade union has no reason to believe they will strike and does not ballot them they are all right. Secondly, he said that Section 11(6) of the 1984 Act states that the right to vote need only be given to those who are entitled to vote as far as is reasonably practicable and, if you put those two things together, in effect you get what we are asking for in this amendment.
With respect, we do not think that that is the case. We are not just suggesting that we should take account of those who are left off the ballot because the union never thought that they would strike and therefore did not put them on the ballot—that is what Section 11(1) does—and we are not referring to those who offend against the provisions of Section 11(6). We are asking for a somewhat wider caveat, exemption or allowance than that. Consider the situation of a mixed ballot, as there might well be, in which the union is introducing a number of workers who have contracts of employment on, say, a building site, but also involved in the strike action are a number of workers on the lump who have contracts of service or who are self-employed.
We are asking why there should not be a special provision as it is much more difficult to contact these people. They are more mobile and they have probably been in the union for a shorter period of time. They may also be out of compliance and therefore may not be on the employer's list of members. It is possible that they are not on the employer's computerised payroll, which is frequently the source from which the unions obtain the names of their people. In those circumstances we are saying why not have a small and modest provision—provided that the union can show that it was not reasonably practicable to include the people concerned in the ballot—to allow the industrial action to be lawful? I beg to move.
Lord Boyd-Carpenter: I wonder in what circumstances it would not be reasonably practicable for members of a trade union who are employed to be included in a ballot. If they are available to be called out on strike, it seems that it should be possible to include them in the ballot. I am a little puzzled when the noble Lord says that there may be some persons whom one can call out on strike but who cannot be included in the ballot. Can the noble Lord explain that point?
Lord McCarthy: If these people come out on strike and they are included in the strike, unless they have been balloted in an entirely legal way which is laid down with great precision in the legislation, then that act of validation will be unlawful. If the union unfortunately gets into its strike force some people
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who did not get a ballot form and therefore did not vote for whatever reason, then the ballot becomes unlawful.
We say that the union should do everything that is reasonably practicable to include such people in the ballot. For the reasons I have given there are difficulties in including them because of the rate of turnover and the absence of their names on a computerised payroll. Another reason may be that they have been on the site for a shorter period. Therefore, in terms of simple solidarity, if one may use that strange phrase, they may involve themselves in industrial action. It may be that their terms and conditions of employment are involved. If they are on strike and they are not included in the ballot, then unless this amendment is passed it would be an unlawful ballot.
Lord Boyd-Carpenter: The noble Lord has not explained the circumstances in which it cannot be reasonably practicable to include these persons in the ballot. If they can be called out on strike, they can surely be included in the ballot. Is not this provision possibly opening quite a gap in the law?
Lord McCarthy: I do not wish to keep jumping up like a jack-in-the-box. There is so much wrong with the noble Lord's view. The trouble is that he thinks that everyone is called out on strike as though all trade unionists have little pieces of string attached to them; the string is pulled, but in the absence of the string, they do not come. Therefore, if trade unionists have the string around their necks and it is pulled, why cannot they be made to sign the ballot before the string is pulled? Strange as it may seem people come out on strike. They are not always called out. They may feel themselves involved and have an interest in the matter. They may even want to support other people. They come out on strike but it may not have been reasonably practicable to give them a paper to put a cross on. Therefore, the ballot is unlawful.
Lord Boyd-Carpenter: Why not?
Baroness Seear: Perhaps I may suggest to the noble Lord that the instructions for the ballot may have been sent by post. In the present state of the Post Office it is possible that the paper was not received.
10 p.m.
Lord Strathclyde: That would fulfil the reasonably practicable aspect of the clause. Perhaps I may more fully explain what exactly Clause 5 does. It remedies an anomaly in the present law. As explained in the Green Paper, Removing Barriers to Employment, the present requirements of the law on union industrial action ballots apply only in respect of action taken by those employed under contracts of employment defined in a particular way. However, it is perfectly possible for a trade dispute to involve workers doing work under other kinds of contracts. The law would give immunity for inducing industrial action in contemplation or furtherance of such disputes by such workers.
As an example one may consider the position where industrial action is in prospect by all the union members on a construction site where 90 per cent. Of

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those members are working as freelancers under contracts of services and 10 per cent. are working under contracts of employment as presently defined for the purposes of the relevant law. The way in which the present law is framed means that the union can still have immunity for organising the action even if it does not give a vote in a ballot to the 90 per cent. of its members who happen to be working under contracts other than contracts of employment. It has to ballot only the 10 per cent. who work under contracts of employment, the situation which the noble Lord, Lord McCarthy, wants to protect.
Whether or not any such situation has arisen in practice, it cannot be right to allow that law to remain as it is. There is simply no good reason to deprive such workers who are members of a union of the right to a proper ballot as is available under the Government's legislation to union members who happen to be working under contracts of employment. The noble Lord has claimed that it is too difficult for a union to give entitlement to vote to the members who would be given such entitlement by virtue of this clause. It is no more difficult to give such members an entitlement than it is to give it to members who do work under contracts of employment.
In any case the law already caters for a situation in which it is in practice impossible for all members with such entitlement to be given the opportunity to vote. First, the balloting constituency—that is, the members who must be given entitlement to vote—is and will continue to be defined by Section 11(1) of the 1984 Act. That means entitlement to vote must be given to all those members of a trade union who it is reasonable at the time of the ballot for the union to believe will be induced to take part or, as the case may be, to continue to take part in the strike or other industrial action.
Secondly, Section 11(6) of the 1984 Act specifies that, as far as is reasonably practicable, every person properly entitled to vote must be given a voting paper and a convenient opportunity to vote. Thus the law already applies and will continue to apply a reasonable practicability test. It means that if it really is not reasonably practicable for a union to give some of those properly entitled to vote in industrial action ballots the opportunity to do so, the ballot can nonetheless give the union protection for calling industrial action.
I am sure the noble Lord will agree that it is entirely right that a union should make reasonable efforts to satisfy the requirements of the law as regards establishing the balloting constituency and giving those entitled to vote the opportunity to do so. It is also right that if it fails to make those efforts the union should be at risk of proceedings if it goes ahead with organised industrial action, since it will have denied members their democratic rights. That is fundamentally what it is all about. I hope I have reassured the noble Lord that the amendment is unnecessary and that he will therefore withdraw it.
Lord McCarthy: The noble Lord is now saying something quite different from what the Government said in another place.
Lord Strathclyde: No.
Lord McCarthy: Yes, quite different. In another place the Government said that we could not have this amendment because it would unfairly and unduly widen the area of immunity. The noble Lord now says that we do not need the amendment because it does not do anything new. I suppose we ought to call this the ILO answer. We are getting the ILO answer—"I can't tell you why we are against it; we have told somebody secretly, privately, confidentially. We always do it secretly, privately and confidentially, and you must take it on trust." I suppose that that is what we shall get.
Even then, the noble Lord should not misrepresent our position. We have never said—at least we have never said in this amendment—that we are opposed to extending ballots to contracts of service. That is not the purpose of the amendment. If one has to have ballots in the way that they are prescribed in the legislation there is a certain logic in introducing and including contracts of service alongside contracts of employment. We are not arguing about that. We are saying that in the circumstances, and given the difficulties of contacting workers who are on contracts of service, there ought to be some reflection of that in the legislation. We were told in another place that we could not have it because it was too wide. Now we are told that we cannot have it because it is exactly the same. Nevertheless, at this time of night, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 20:
Page 6, line 9, at end insert:
("(6) The following subsection shall be inserted in section 10 of the Trade Union Act 1984—
"(3B) Where a trade union holds a ballot which complies with this Part of this Act and with the support of that ballot induces persons to take part, or to continue to take part, in industrial action, nothing in this section shall cause an act to be actionable by reason only that those persons include one or more who have been engaged by an employer party to the dispute to enter his employment since the date of the ballot".".).
The noble Lord said: The amendment deals with a point which has emerged recently in the courts but which has worried some people for some time. To put it briefly, it concerns a ballot being held and a call later for industrial action to the union's members in a dispute with one employer—a proper trade dispute; nothing the Government could object to. Those who actually join the stoppage include employees who were not employed by the employer at the time of the ballot. As the noble and learned Lord, Lord Donaldson of Lymington, the Master of the Rolls, said in the recent case of The Post Office v. The Union of Communication Workers in the Industrial Relations Law Reports at page 147:
"The Union clearly cannot identify and ballot those of its members who are not employees of the employer at the time of the ballot, but who will, in the event, join the workforce at a later date. It would seem to follow that any call for industrial action following a ballot should expressly be limited to those who were employed by the employer".

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I interpolate that the noble and learned Lord is interpreting the statute and that the word "should" means that this should be limited to those employed by the employer. He continued by saying that they should be,
"given an opportunity of voting at the time of the ballot. For the avoidance of doubt, let me say at once that I am not concerned, I do not think that any court would be concerned, at small changes in the workforce but, de minimis apart, this point may repay consideration".
In context, it is clear that the noble and learned Lord thought that that was perhaps the proper reading of the statute. When one hears a court say, "de minimis apart", one knows that very often it is facing a conclusion that it thinks is not altogether sensible and is retaining some elbow room for itself in a case where only a small error, as the statute would say, has been made.
However, it does not seem very sensible that that should be the position. I do not believe that that was anyone's intention. I do not remember and I could not find any evidence of the point ever having been discussed as regards the enactment of the 1984 legislation. As I said, I do not believe that it was anyone's intention that this should be the position.
After all, it is the employer and not the union who hires the extra employees in the short time after the ballot, which we assume to be positive, as in that case; or at least it would have been had they managed to regularise the position. Moreover, when the union calls out its members it does not seem reasonable, if a few who are more than de minimis—however many that may be—then join, as members would naturally do in such a dispute, that that should so to speak invalidate the entire operation which otherwise the union has, we assume, carried through in strict conformity with the statutes.
Maybe there are problems with the wording proposed in the amendment. However, we thought it right to raise the matter because it is a situation which can lead to great uncertainty and legal argument. For example, no one knows how many people are included in the expression "de minimis". There may also be argument about exactly who was hired and when. It seems to me to be a quite unnecessary piece of legalism in the ordinary run of industrial affairs to get in the way and possibly even affect negotiations in a dispute. I beg to move.
Lord Strathclyde: The noble Lord, Lord Wedderburn, will be glad to know that I think his amendment is unnecessary. Section 11(1) of the Trade Union Act 1984 requires the union to accord an entitlement to vote to all those members of the trade union who it is reasonable, at the time of the ballot, for the union to believe will be induced to take part or, as the case may be, to continue to take part in the strike or industrial action. It is clear that the question of entitlement to vote falls to be decided by reference to union members employed by the relevant employer at the time of the ballot. Therefore, to suggest that the
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ballot could be invalid because individuals who joined the group at a later date were not given a vote makes no sense.
The noble Lord, Lord Wedderburn of Charlton, mentioned, in support, the judgment of the noble and learned Lord, Lord Donaldson of Lymington, in the case of The Post Office v The Union of Communication Workers. The Government agree that it would not be reasonable for a union to be expected to ballot members who had not been employed by the relevant employer at the time of the ballot when it had no way of knowing that it would later be called to take the action to which the ballot relates. No proceedings could be brought on that ground. I hope that I have reassured the noble Lord that the law already adequately covers the point and that the additional protection which the amendment seeks to provide is unnecessary. I hope that with that explanation the noble Lord will be able to withdraw the amendment.
Lord Wedderburn of Charlton: I always exert myself to the utmost of my powers to be reassured by the Minister. I fear that on this occasion too he has been unsuccessful. In the passage that I read the noble and learned Lord, Lord Donaldson, said:
"It would seem to follow"—
that is, follow from the Act—
"that any call for industrial action following a ballot should expressly be limited to those who were employed by the employer, and given an opportunity of voting at the time of the ballot".
Of course we cannot expect the union to ballot people who are not employed by the employer. That is not the point. The point is that there appears to be emerging a legal rule that the union can call out people or induce them to take part in industrial action only if they were employed at the time of the ballot. That is the obverse of the issue, and that is the problem.
I ask the Minister to reconsider this matter. It is a silly little problem. It need not cause any difficulty. It will get in the way in a dispute which might otherwise be settled. It may not happen all that often. It is just the kind of difficulty which arises—here I say, in my experience—once the lawyers become involved. If I am briefed—for whichever side—it is my job to take such a point, to win, and to obtain an injunction if I am for the employer. The noble and learned Lord, Lord Donaldson, is saying that the employer might obtain an injunction on that point. That is silly. The Minister thinks that it is silly. That is why he spoke about something else. Subject to the noble Baroness, Lady Seear, intervening, I shall withdraw the amendment.
Baroness Seear: The Minister has implied that he agrees with the amendment. He said that it is unnecessary because the point is already covered. He will have heard of a belt and braces. What is the trouble with accepting the amendment and making the position clear? Why cannot he accept the amendment? As he says that the matter is covered, it would not do any harm. If there is any doubt, it would make the position clear.
Lord Strathclyde: I thought that that was the point the noble Baroness was trying to make in respect of a

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previous amendment when she said that we did not want any more legalistic stuff. Here is an example of the Government saying that more law is unnecessary while the noble Baroness is saying that we should have the amendment in any case.
Lord Strathclyde: The noble and learned Lord, Lord Donaldson of Lymington, said that the point would repay consideration. The Government have considered it. They see no reason to change the law.
Lord Wedderburn of Charlton: For a moment I believed that the Government were going to reconsider the point in the light of the noble and learned Lord's admonition. I seriously ask the Minister to consult on the issue if he does not wish to leave the Bill in a curious state and does not want bad law. We do not want more law; we want better law. Managers will not necessarily thank the Government for leaving the position as it is. The unions have a little to gain from the amendment. Managers will gain from the fact that they will not be able to put the matter to their lawyers as early as they otherwise might. Subject to that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
10.15 p.m.
Clause 6 [Responsibility of trade union for acts of officials, &c.]:
Lard McCarthy Lard McCarthy moved Amendment No. 21:
Page, 6, line 24, after ("union") insert ("where the committee or official is not prevented by the rules of the union from doing, authorising or endorsing that act").
The noble Lord said: I wish to move Amendment No. 21 and speak to Amendments Nos. 22 and 25. In many ways this is the most serious clause in the Bill—not the most disgusting, that is Clause 8. It is the most serious example—to paraphrase the Minister—of setting the workers free by restricting their freedom. The amendment makes virtually any officer of any union, and any committee of any union responsible for the acts of a member of the union which happen to be outside the boundaries of law.
It is a long story. Some Members of the Committee may not like us going back into the past, and believe that if we do so we shall get stuck there. I apologise to them. I shall turn to the present; but I must start with 1971 when the previous Conservative Government succeeded in removing the blanket immunity in tort which had been re-enacted in the 1974 TULRA. They did it in a way which was generally thought by most people subsequently to have been—intentionally or unintentionally—a mess. That led to a series of cases in which judges at various levels of the judiciary said that certain bodies inside unions were either responsible for the acts of the members or should make the union responsible. Other judges said that other people should be responsible.
It was generally thought that when in the 1980s the Conservative Government wanted to consider this legislation again, they should take a totally different approach. We did not want it at the time but the form of liability that was introduced in 1982 was to spell out the responsibilities in the statutes of that year, to state
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specifically who would be legally responsible, who could commit the union and therefore commit tortious liability, clearly and precisely in the statute. This has turned out to be a rather clearer and better way of doing it than the way that it was done in 1971.
Yet the Government wish to change it. Everyone would say that a wide range of people under the terms of the statute are responsible for the actions of the union: the union's principal executive; the president and general secretary; any other employed full-time official of the union; any committee to which any of those people report; and those authorised under the rules to do this anyway. I should have thought that net was wide enough. There should be no need to go further in the way that Clause 6 does and say that virtually everybody in the union who could be said to be an official or to serve on the committee of the union—whatever the rule books may say—could commit the union. It is their responsibility and the union could find itself at risk, it could incur considerable penalties and costs. The only escape, once the union knows that this is the case, is the act of repudiation.
Therefore we ask for a modification. We do not ask that there should be no change from the present situation. We ask for a limitation on this global, general, vague liability under which branch treasurers might put the union into a situation of liability. The average branch steward—not a shop steward—might put the union into a liability. We suggest that if the rule book says clearly and precisely that such-and-such an officer has no such authority, that will be one condition to be satisfied. However, even then these two conditions should run together. The rule book clearly states that such a person is in no such position of authority, and if the person himself is not in the employment of the union—he may be a lay member or a doorkeeper, a branch secretary or a branch treasurer—he should not be put in a position where he can be made responsible for, or authorise, industrial action.
Once upon a time the Conservatives wished to introduce an element of liability and responsibility and they wanted to take away blanket immunity. However, they believed it was unfair and unjust to put every single officer or lay official of a union, however minor he may be, in a position where he could commit the union. They had several reasons for thinking that, but they also felt that would put a union in an impossible position if the only way it could escape such a liability was by an act of repudiation. We shall be considering acts of repudiation in the context of this Bill in subsequent amendments. The legal position is uncertain as regards an act of repudiation taking place. What is the legal position of a union as regards an act of repudiation and a validating ballot?
In this amendment we propose that liability should be limited, even if the Government wish to extend it. I hope that the Minister will give us some hope and some assistance tonight, and that he will try to spell out some of the reasons why the Government feel it is necessary to introduce a provision of this kind. I hope that he will try to put some flesh on the bones of the general arguments in the Green Paper which suggest that there has been a tremendous increase in the

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number of unofficial strikes. Those arguments further suggest that it is that increase in unofficial strikes which has made the Conservative Party and the Conservative Government depart from a position which I consider they have held since the early 1970s.
The Green Paper refers to a few random unofficial strikes. However, it makes no significant attempt to provide statistical evidence to demonstrate that the proportion of unofficial strikes has increased over the past five or 10 years. It has no considerable body of evidence to suggest that the number of working days lost as a result of strikes has increased over the past few years. It contains an assertion that three-quarters of the disputes that could be classified were found to be unofficial. However, we do not know how many of the alleged disputes could not be classified and we do not know what proportion of them were finally classified. Even on the figures that the Minister gave over the two years for which they are available, only 20 per cent. of working days lost were due to unofficial action. However we do not know whether the figure for previous years was 10, 15, 25 or 30 per cent. So far the Government have provided no statistical analysis or case studies to demonstrate why they should depart so completely from their former policies. I beg to move.
Lord Rochester: As these are the first amendments dealing with potential union liability for unofficial industrial action, I should say that in my view Clause 6 will do nothing to improve this country's industrial relations. It may well create more difficulties for management by prolonging procedures for resolving disputes. That in turn may provoke employees to take more unofficial action rather than less. There is a further danger. The Government's aim in introducing this clause is to curb such action. However, my fear is that it may have the reverse effect in that unofficial action will escalate into major official disputes legitimised by a ballot.
One reason why the Government have introduced the clause is that they want to put a stop to the practice whereby unions have sometimes connived at unofficial action in order to escape liability for it. What troubles me is that their proposed remedy may prove worse than the disease.
In the past, as a manager, I have had to deal on a number of occasions with unofficial action taken by members of the AEU. That union makes it plain in its rule book that only the executive council or the national committee may authorise industrial action of any kind. My first reaction to such trouble was to call in the union's district official to persuade his members to go back to work before trying to get the dispute resolved. If necessary, the national officer was roped in. The effect of the clause as it stands will be to undermine the authority of that union and distance it from its members. The amendment has the merit of seeking positively to uphold rather than to diminish the union's authority. That, rather than the Government's penal policy, is the approach which in my view should be encouraged.
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Perhaps I may now turn to Amendment No. 22. The effect of subsection (3) is to make any obscure shop steward, elected perhaps by only a handful of union members, responsible for their acts. In order to repudiate that action, the union will have to go through the whole elaborate process of repudiation set out in subsection (5). It will have to do its best to give written notice of repudiation to every member of the union who takes part or might otherwise take part in that action.
What happens if a shop steward calls for action by people outside the section that he has been elected to represent? There does not appear to be anything in the Bill to limit the responsibility of an official to his section of the union. Presumably, the matter will have to be settled in the courts. That may be fine for lawyers, but, so far as I can see, it will do nothing to help management maintain good relations with their employees in the workplace. The amendment aims to limit the damage that the clause may cause by confining liability to officials who are employed by the union. For that reason, I support it.
Lord McCarthy: Before the noble Lord sits down, perhaps I may draw his attention to subsection 3(B) which makes it clear that the union would be liable in the circumstances to which he referred. It states:
"The provisions of paragraphs (b) and (c) of subsection (3) apply notwithstanding anything in the rules of the union, or in any contract or rule of law".
In other words, even if the shop steward was involved in industrial action in which he was in no way a representative, he might be liable.
Lord Strathclyde: The Green Paper Unofficial Action and the Law explained the case for changing the present law on union liability for certain acts done by its officials and committees. If I had to summarise the nature of its particular proposals, I would say that they involved, first, widening the potential liability of unions, so that this applied in respect of relevant acts done by any of its officials or committees, including shop stewards; and, secondly, ensuring that, where any union official or committee called for industrial action and that act came to the knowledge of the union's executive, president or general secretary, they would have to make it clear to all concerned if the union repudiated what the official or committee had done.
That is what the provisions of Clause 6 are all about. They build upon the present law concerning union liability for relevant acts—that is to say, Section 15 of the 1982 Employment Act—so as to update that law.
The amendments before us now, and the next 18 or so amendments to the clause, seek either to undermine the intended effects of Section 15 of the 1982 Act as it would be modified by the clause, or to provide scope for unions or their officials to evade liability by adopting rule book devices or by getting others with whom they are associated to do the relevant act on their behalf. I hope that it will be accepted by the Committee that that is what the Opposition are trying to do.

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I should add at the outset that, while the provisions of Clause 6 certainly involve modifying and extending the present law, they do not involve any new principle in terms of setting out special statutory provisions for union liability for relevant acts.
I accept that in various respects both the present law and the law as it would stand modified by Clause 6 are 'unique" in terms of creating special rules for the vicarious liability of trade unions. However, it has long been recognised, by Labour governments as well as Conservative governments, that unions are very special bodies whose affairs should be subject to appropriate legislation.
In historical terms—the noble Lord, Lord McCarthy, was interested in the historical precedent of trade union legislation since 1971—the Labour Government enacted such law as part of the 1974 and 1976 Acts. What the Labour Government did meant that union funds, unlike those of companies or other bodies, were not put at risk even if union officers or officials committed unlawful, tortious acts.
What we have done and what we propose are very different. We have recognised that when union members are called upon to take industrial action by a shop steward or a group of which their shop steward is a member, so far as the members are concerned that will he a call by "the union". That reality will be reflected in the provisions of the modified Section 15.
However, it is vital to appreciate that we are not going so far as saying that a union cannot avoid liability for relevant acts of its officials or committees. Other provisions mean that such liability can be avoided where a union finds it necessary and appropriate to do so by following the procedure for "effective repudiation". That, too, is reasonable and right.
I am sure that the noble Lord, Lord Wedderburn, will not like the idea of repudiation and will regard it as being far too onerous on unions. It is not, as we shall see when we continue through the amendments.
Bearing those points in mind, let me examine these amendments. Amendments Nos. 21 and 25 would enable a union to avoid potential liability for any relevant act of its officials or committees if they were,
"prevented by the rules of the union from doing, authorising or endorsing that act"
as expressed in Amendment No. 21, or if the union happened to have a rule which provided that in relevant circumstances an official who did a certain act was no longer to be regarded as "an official"—the obvious implication of Amendment No. 25.
What would happen if any such option were to be open to unions? It must be reasonable to assume that unions would proceed forthwith to make such rules as were necessary to restore the status quo. Certainly, the union's rules might then deny shop stewards the authority to call for industrial action on behalf of the union. But would members appreciate that sort of technical difference? I venture to suggest that they would not.
As paragraph 2.7 of the Green Paper explained—
10.30 p.m.
Lord McCarthy: Will the noble Lord take it from me that there are virtually no rule books which give shop stewards the right to call strikes and commit the union? That is why this Bill has to say, "Ignore the rule book".
Lord Strathclyde: But by passing this amendment and specifically excluding it in the rules, the unions would get round the effects of this clause entirely and there would not be any point in having it. There would be no requirement to repudiate.
Lord McCarthy: I am sorry to interrupt again, but that is not so. It is only the case in respect of lay officials. We do not say—if we do say it in this series of amendments we are wrong and will correct them—and it is not our intention to say that they can write themselves a rule book so that the general secretary, the executive and the rest are not responsible. We say that this can only be done if it is in the rule book and is being done for lay officials and not for full-time officials.
Lord Strathclyde: I am not sure that I understand the point that the noble Lord is trying to make. Presumably the rule book could be changed to take account of that. So far as I can see, it is totally unnecessary to accept this point on the basis that the unions could adjust their rule books in such a way as to avoid the repudiation of procedure and avoid the total effect of the clause. I may well be wrong, but that is what I understand.
Lord Wedderburn of Charlton: It may be helpful to put it in this way. The distinction is between the employee and the agent. The amendment would provide that one is still liable for one's employees in respect of anything done in the course of employment, or of the authority. However, for those who are not employees but are lay agents from time to time, there is the capacity to determine the authority within which one will be liable. That would seem a reasonable proposition.
Lord Lucas of Chilworth: Before the Minister responds, can the noble Lord, Lord Wedderburn, explain to the Committee how those people—they may be called branch secretaries or branch treasurers—who may not be empowered under the terms in the rule book may be separately identified by the membership as not being officials and therefore unable to call an action? I should have thought that anybody of a particular standing within the organisation would be thought of by rank and file membership of a trade union or any other organisation as having authority to perform a certain action. Whether at a later stage a trade union can repudiate that action because of what is in the rule book seems somewhat immaterial. I cannot understand that argument.
Lord McCarthy: The relationship between trade unions and their members is rather complicated. We do not have bits of string that we pull. The rule book is usually extremely clear. Only the national executive can authorise industrial action. If one authorises industrial action, in most circumstances one pays benefit. Only the national executive is entitled to pay

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out the money. Therefore most activists, officials, in the union know only too well who is entitled to authorise official action on behalf of the union. If any union had rules which were significantly different, it would go bankrupt.
Once one gets away from the "string" mentality it does not mean that groups of workers will not come out on strike and will not have people whom they regard as leaders. But that happens with non-unionists. That is unofficial action. We are talking of trade unions. We are saying that unions should be responsible only for those lay members who are specified in the rule book to have that responsibility.
Lord Strathclyde: The noble Lord, Lord McCarthy, said that trade unions were complicated. We are trying to make them less complicated by making sure that repudiation affects everybody, lay or official, who calls action in the union's name.
Perhaps I may explain precisely why we feel the way we do. In the Green Paper we said:
"Unofficial action may be seen by a union as a useful means of putting pressure on an employer before or during negotiations."
Paragraph 2.8 mentioned that the National Union of Mineworkers has rules which preclude officials below a certain level in the union hierarchy from calling for industrial action on the union's behalf. However, British Coal has pointed out that in reality there has often been very close involvement by lay officials in industrial action affecting particular collieries, and the union has failed to intervene in any way.
This is neatly summed up in the Green Paper as follows:
"Where the union passively acquiesces in unofficial action organised by lay officers or by officials forbidden under the union's rules to authorise or endorse it, the effect is that the union escapes responsibility and avoids the need to fulfil certain requirements which would apply if the union itself organised industrial action, such as holding a proper ballot".
That is what it is all about. These amendments seek to allow such a situation to continue and to flourish. They are accordingly quite unacceptable. My noble friend Lord Lucas of Chilworth is quite correct.
Amendment No. 22 is, if nothing else, direct. It would completely reverse the intended effect of a key change to be made to Section 15(3) of the 1982 Act by Clause 6(3). It would mean that the provisions of the section applied only to relevant acts of employed union officials or committees.
Section 15 as it stands already renders a union potentially liable for a relevant act by any official "who is an employed official"—that is to say, employed by the union. Therefore, if the amendment were to be accepted, the status quo would be restored and the intended effect of the clause would be completely undermined.
As I have already explained, it is not a valid argument to point out that what is proposed in the clause is the creation of special vicarious liability which is to apply to unions in a way that would not be the case for other bodies. That is simply irrelevant once it is accepted—as I believe that it must be—that
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unions are really very special bodies, with unique purposes. Moreover, in the real world, the influence of officials not employed by the union they are perceived to represent is also, in a very real sense, unique. It is not difficult to find evidence of that in almost every unofficial dispute.
Clause 6 is an important part of the package of measures which the Bill proposes to help deter and discourage unofficial action. It is entirely right that unions should in future be responsible for threats of, or calls to take, industrial action by any of their officials, or committees, or relevant groups with which officials are associated. The amendments would subvert the measures which are necessary to establish such responsibility. I hope that the noble Lord will not press them. I also hope that he will not press the other amendments to the clause because they all relate to the same basic problem—they seek to allow the union to avoid the requirements of the clause.
Lord McCarthy: The noble Lord's replies are a mixture of the general and the obvious; the particular and the mistaken. He has taken us generally through the Bill and told us what the provisions of the Bill are. I am bound to say to the Minister, at twenty minutes to eleven, that we know what the provisions of the Bill are.
He then took us through our amendment, and stated the general and the obvious. He said that the intention of our amendment is to widen the degree of immunity. Of course it is. He said that it reduces the number of those who carry liability. Of course it does. If we were not trying to widen the area of immunity and to reduce the level and area of liability, there would not be much point in putting down an amendment.
When the noble Lord came to the particular and the specific and tried to take us through what he said was the meaning of our amendments, he was almost invariably wrong. I do not want to bore the Committee at this time of night with examples; but the best example was the result of a number of interventions from this side of the Chamber. The Minister told us that the amendments meant that the union would be put in a position in which, by changing its rules, it could create a situation in which no one in the union would be liable. The amendment is not intended to interfere with any of the powers in existing legislation. The position with regard to those who are liable under the existing legislation and the need to operate the revocation procedure will remain exactly the same - the principal executive, the president, the general secretary and the other employed officials. That will remain exactly the same. All we are trying to do is to modify some of the extensions proposed in the Bill. Nevertheless, at this time of the night we do not intend to divide the Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 22 not moved.]
10.45 p.m.
The Chairman of Committees (Lord Aberdare): If Amendment No. 23 is agreed to, I cannot call Amendment No. 24.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 23:
Page 6, leave out lines 28 to 33.
The noble Lord said: That eventuality is not highly likely. In moving Amendment No. 23, it may assist the Committee if I refer to matters which arise from both amendments.
Just as my noble friend has outlined an arguably reasonable approach to liability which would still, had the previous amendments been passed, be rather more strict than the normal rules of vicarious liability for bodies generally, so in this amendment and the one that follows we see the extreme character of the Bill. I concentrate on lines 28 to 33 because one sees from them just how far the Bill takes liability for what the Minister has called this special body on special principles. It takes us not merely to the case in which an official exceeds his power, but to the case in which the official joins with or visits a group of persons. I suggest that on Report we should look again at paragraph (b) on page 6 of the Bill.
The real situation is one where trouble has emerged and the manager sends for the local union official at whatever is the appropriate level according to different union customs. He then comes in to see what is the problem. Perhaps there has been a stoppage. The official finds a group of his members. Given the industrial relations system which we have, it is also very likely that some of his members will be with members of another union or non-unionists. In a large plant, there may be conveners from different unions. He joins them in order to find out the problem.
That is fatal to union liability. That is the Government's contribution to solving industrial problems. Managers will tear their hair out if the Bill is passed in its current form. Thereafter, the most incidental purpose of the group may be to organise or co-ordinate industrial action. As those people have a grievance against the management it is likely that such action will be contemplated in some form. It might be thought that the Bill would then state that the union is liable for anything done by the official or that the union is liable for anything done by the group. That is how the matter was put by the Minister. It might be thought that the Bill would say that the union is liable for anything done by the person who had previously been organising or co-ordinating the group. That is much too reasonable. The Bill actually states that the union is then liable for anything done, authorised or endorsed either by the group of persons—and it is highly accurate because it is understood that that may not be a member of the union at all—or by any member of that group of persons.
The Government cannot mean that. The issue was debated in another place. The defence of it was weak. Are the Government so determined to make the union liable for acts done by any person, be he a member of the union or not, in a group of persons, one of whose
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purposes was co-ordinating industrial action where there was a genuine grievance and where there has been a visit by a union official?
I know what the Minister will say. The Minister will say that that can always be repudiated by the union. The Government could have relied upon that answer if they had made reasonable the repudiation procedure. When one looks at the Bill, that is not so. The union must write to each individual member. We shall discuss later the matter of repudiation although we are all making wide-ranging speeches to get through the matter more quickly. However when one looks at the repudiation procedure, one can see that it is ridiculous. A union is required to write to every member who may have been affected and to write to every employer. Six months later, letters must be written to those who inquire. However, we shall return to that matter.
That is so not because one of the union officials or a union member has taken action but because the official had visited a group of people which included a person who had been mixed up in the dispute and who took action later; for example, he went to the paint shop and said, "All out". The union is liable unless it repudiates that. That is quite absurd.
I hope that the Government will at least look at one small point so that we have some common ground. Will the Minister look at the words, "or by any member"? Can he go that far? That is the most unreasonable part and that is why I beg to move the amendment.
Lord Rochester: In my view subsection (3A) (b) of Clause 6 goes over the top. A trade union official may be a member of a group which, unbeknown to him, decides to organise industrial action. He may not even be present at the meeting at which it is decided to take such action. Nevertheless, he may be held responsible for the acts of the group unless his union goes through the whole process of repudiation, to which we shall come in a moment.
It is worse than that, as the noble Lord, Lord Wedderburn, said. The union could, under the clause, be held liable for the actions of a single member of the group in question. That goes much too far. The amendment seeks to delete the offending subsection and I therefore support it. I join with the noble Lord, Lord Wedderburn, in expressing the hope that the Minister will look at this again, particularly the point that the union could be held liable for the acts of a single member of the group.
Lord Strathclyde: I am glad that the noble Lord, Lord Wedderburn, mentioned the procedure for effective repudiation, although, like him, I am aware that we shall be discussing that point in greater detail in a few moments. An understanding of the process of repudiation is vital. We cannot have exceptions to the clause brought in by noble Lords opposite. The point of the clause would be ruined. Effective repudiation is an easy hurdle to overcome. It is reasonable and right; it is not too onerous. Therefore unions always have the ability to say that they are not responsible. If they do that, they have no liability and there is no problem.

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Perhaps I can briefly look in detail at the amendment. The new Section 15(3A)(b) is needed to ensure that a union will be potentially liable if a relevant act is done by a group of persons of which an official is a member. If this was not done, it would be impossible to know whether a union was liable for a relevant act done by such a group unless it could be established that the official had personally done the act in question.
There is a necessary limitation in these provisions so that there will be no union liability for what may be done by a group, or a member of a group, whose purposes do not include "organising or co-ordinating industrial action". So, just because a union official belongs to a group which has no such purpose—perhaps a social or sporting club—there is no danger of union liability being created by what another member of such a club might do.
The provisions of Section 15(3A)(b) proposed by Clause 6 will not prevent union officials using their influence to avoid or end industrial action organised by others. But neither will they allow a group which calls for unofficial action to have the authority which might be imparted to it by a shop steward being among its members unless the shop steward is willing to risk making his union potentially liable for what the goup, or any of its members, do by way of organising industrial action.
That is the point of the amendment. And that is why I believe it to be unnecessary. I hope that in the light of that explanation and assurance, the noble Lord will withdraw it.
Lord Wedderburn of Charlton: I am not at all reassured. The Minister has given us even more to think about before Report, and that is why I shall not move Amendment No. 24. He appears unwilling even to consider the kind of direction in which that goes; namely, that the purpose of the group has to be substantial.
We have been told many times that there cannot be exceptions, although why we are here if we cannot debate exceptions I am not sure. However, one would have expected a reasonable statute to say a group, "of which the principal purpose", or perhaps, "of which the substantial purpose". We must think about that more carefully for Report stage. As the noble Lord, Lord Rochester said, this provision is far too extreme.
The Minister has given us something else to think about. The fantasy world of this paragraph becomes Alice in Wonderland with mention of the union sporting club. I had not thought of that. The Minister has undreamt-of resources in these matters. The union sporting club goes cycling off; the official joins it. For 90 per cent. of the time they are enjoying a mini Tour de France. Suddenly they have a beer and begin to discuss the latest stoppage at work. I see what the Minister means. They may well come within the paragraph. But this is absurd. Surely we must come back to this matter on Report. It cannot be allowed to go through without a battle. If this Chamber cannot
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look at a paragraph of this sort and see that it is unreasonable there is not much point in debating the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 24 and 25 not moved.]
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 26:
Page 6, line 42, at end insert ("and for the purposes of this section the date of repudiation shall be the date on which any of them sent a written notice to the committee or official under subsection (5) (a) below.").
The noble Baroness said: Clause 6 is all about repudiation. I do not want to go into the whys and wherefores of the clause as a whole. I do not agree with the clause and I share the views already expressed about it. The object of the amendment is to deal not with repudiation as an issue but with what happens when repudiation takes place.
For example, what happens when a union discovers that unofficial action is taking place? Most unions have a rule book under which the powers to repudiate are vested in the national executive council. The executive council is often made up of lay members. The general secretary has to summon the executive members to a meeting and they have to consider the issues before them and make a decision to repudiate. The date on which they repudiate can be extremely important. Therefore, the amendment sets out what that date should be. It states:
"for the purposes of this section the date of repudiation shall be the date on which any of them"—
that is, the committee—
"sent a written notice to the committee or official under subsection (5) (a) below".
That is the subsection which states:
"written notice of the repudiation must be given to the committee or official in question, without delay".
But what does "without delay" mean? There has to be an indication of exactly what that date should be. If it is the date when it is actually received, we all know that there can be postal delays and there could be arguments about the date. However, there cannot be much argument about the date when the written notice is prepared at the union's head office. That seems to be a reasonable amendment and I hope that when he replies the Minister will not say that this is an amendment that seeks to subvert the clause. It is not. The amendment seeks to tie up the position so that there is no argument as to when repudiation actually takes place. I beg to move.
Lord Lucas of Chilworth: I am grateful to the noble Baroness, Lady Turner of Camden, for explaining the position. However, she is quite wrong. The amendment does exactly the opposite to what she said. I ask the Committee to consider what my noble friend Lord Boyd-Carpenter had to say about best endeavours and reasonable practice when we debated Amendment No. 18. Similar arguments obtain on this amendment. As I read the Bill, subsection (4) requires that the union shall do its best. The words are:
"as soon as reasonably practicable".

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Surely the unions will accept that, rather than try to fix a specific date for repudiation. I cannot see how the amendment strengthens the unions' position. I believe it weakens it. Here we have a not impractical task. Surely it must be in the unions' best interests to inform all their members of repudiation of an action as soon as is practicable. That is all that the provisions require. In my view, the amendment does nothing to strengthen that.
11 p.m.
Lord Strathclyde: I say to the noble Baroness that in this case she is quite right. The amendment does not subvert the clause. Instead it seeks to introduce uncertainty and delay into the repudiation process. That is why the amendment is unacceptable. Superficially it might seem to involve only a minor change to make it easier for unions to comply with the law. It will not improve the positive intent of subsection (5).
The amendment seeks to extend the time period between the Act coming to the knowledge of the principle executive committee or the president or general secretary, and the effective date of repudiation by providing, in effect, that repudiation occurs when written notice of the repudiation is sent to the official or committee who called the action.
I am not aware of any statistical evidence on the average turnround time for correspondence in large organisations, but it is clear that this provision could be manipulated to add several more days to the period, during which the unofficial action could continue with impunity. As the legislation stands, the date of repudiation is the date on which any of the specified union leaders makes the decision to repudiate the call for industrial action. The legislation requires them to do this, as my noble friend Lord Lucas said, as soon as reasonably practicable after coming to the knowledge of any of them. That allows a certain amount of leeway for them to investigate the circumstances of the dispute and make their decision.
The extra requirement which the amendment seeks to build in before repudiation becomes effective merely adds further delay which benefits nobody. I therefore hope that the noble Baroness will withdraw the amendment and that we do not see it again at Report stage.
Baroness Turner of Camden: I am rather surprised at the way in which the Minister has dismissed the intentions of this amendment. I believe that it makes things much clearer for everybody. If you have a lay executive it has to be called together. It has to be given notice and arrangements have to be made for it to come. It may take 48 hours to get it together. The executive may meet at the weekend. It then has to make its determination and the repudiation has to be issued.
I believe that it is a good idea to have a date for repudiation, that being the date on which a written notice is sent. However, the Minister does not feel disposed to accept the wording of the amendment. I shall look carefully at what he said in the Official Report tomorrow and see whether a different form of
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wording may be a possibility at Report stage. As he suggests, I do not feel inclined to let go of the idea completely. I shall think about the matter and perhaps I may return with a different wording on Report. It seems to me that what we are suggesting on this side of the Committee is quite sensible. The Minister agrees with me that the amendment is not subverting the clause but tightening things up so that everyone knows where they stand. Nevertheless, I do not intend to press the amendment at this hour of the night. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord McCarthy Lord McCarthy moved Amendment No. 27:
Page 7, line 1, leave out from beginning to end of line 5 and insert:
("(b) the union shall do what is reasonably practicable to give notice without delay.—
(i) to every member who the union has reason to believe is taking part, or is likely to take part, in industrial action as a result of the act either by individual notification or by such other publication which it is reasonable to believe will come to the attention of such members within reasonable time, and").
The noble Lord said: We are now discussing the issue of repudiation. The purpose of this amendment is to introduce a more reasonable set of repudiation conditions. It does that by making use of a phrase which is common in the Government's legislation in saying that something should be so far as is reasonably practicable. The Minister laughs but he likes the phrase when he uses it. Perhaps he will get used to it when we use it.
Let us go quickly over the theory of repudiation to see how reasonable it is. Repudiation in its new and extended scope has to be done for every official, committee or individual of the committee of the union. It is an action that must be taken by the principal executive of the union as soon as reasonably practicable after any of the principal executive members of the union have knowledge that something has been done which may be unlawful.
Action has to be produced in two directions. A specified letter has to be sent without delay to every member who the union has reason to believe is taking part, or who might otherwise take part, in the action, and to all the employers. As has been said by my noble friend, the union must act consistently with such repudiation or it will not count. It must affect all action by anybody who subsequently turns out to be acting unlawfully on any ground. It must be done as soon as anyone in the principal executive knows that it is taking place even if he has no idea as yet that it is unlawful. It may be that its illegality is not as obvious as was at first thought to be the case. It may not be that someone is refusing to have a ballot. It may be that there is or is subsequently found to be something unlawful or wrong in the way that the ballot is conducted; or it may in the end merely be that there is some form of injunctive remedy because there has been a serious case to answer as to whether or not it might have been unlawful in the first place. If the

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union had any reason to suppose that any of these eventualities might occur, the implications of the Bill are that it had better repudiate as soon as possible.
We leave intact the great majority of this blunderbuss. We merely suggest that in carrying out these requirements we should change or modify the necessity for a requirement in terms of an individual written notice. We allow in the terms of our amendment, in addition to the individual written notice,
"such other publication which it is reasonable to believe will come to the attention of such members".
This could mean, for example, a branch circular or a shop steward's bulletin. It might even be a notice on a locker. There must be a publication. We do not say that we can go back to that horror of horrors for the Government - the shop floor meeting. We say that there must be a publication. But to insist that it should be an individual written notice is a great deal to expect, not so much in the context of the requirements so far, but in the context of the extension of the requirements involved in this part of the Bill. They are now to be extended to all officers of the union, any committee of the union and so on. In that context we say that the degree of participation and what is required for the revoking procedure should be modified in just a small way. That is the purpose of the amendment. I beg to move.
Lord Lucas of Chilworth: I meant no discourtesy to the noble Lord by my humorous interjection when he was describing the purpose of the amendment. I just found it extraordinarily humorous that, in moving her Amendment No. 26, the noble Baroness, Lady Turner, objected to the provisions in the Bill for repudiation as soon as reasonably practicable for a wide variety of reasons: calling the lay members, having weekend meetings and so on. Then in moving Amendment No. 27 the noble Lord, Lord McCarthy, wanted to insert the requirement that the union shall do what is reasonably practicable. That seems to be a contradiction in terms. He then added one or two small details of who and how.
All the amendments with which we are faced tonight in Clause 6 hinge around a piece of hurdle or fencing. None of them could sustain any kind of action. Anyone could walk through them. I wonder exactly what is the real purpose of this series of amendments. Whether it is early in the afternoon or later in the evening, they are nonsensical, quite contrary and quite contradictory to all that we have talked about throughout our debates.
Lord McCarthy: They are only contrary or contradictory if the object of the exercise is to tie down the workers and the union in every conceivable way. It may be that if one put them all together and if by some moment of aberration the Minister allowed us to have them all, the result would be somewhat confusing. It may be that there would be a good many of them. But we have to keep trying and putting it in this way and that way in the hope that we might make a little pinhead of a hole. Of course we never do.
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My noble friend Lady Turner tries to do this in one way but the Minister does not like it. I try to do it in another way, but he does not like that either. We are just trying to make it easier for those who will have to implement the provisions of the legislation. Naturally, that is not what the noble Lord wants.
Lord Strathclyde: This amendment seeks to transform a clear statement of a union's repudiation into a lottery. It will make it uncertain who has been notified and how. It will benefit neither union, nor employer nor members. Of course, that is exactly what the noble Lord, Lord McCarthy, wants.
The arrangements to be established by Clause 6 mean, among other things, that a union is to be free to avoid liability for an act done, authorised or endorsed by any of its lay officers or officials if it is prepared to repudiate the act or acts in question effectively. But there can be no excuse for leaving a union free to do this in a hole-in-corner way; it is an essential part of the policy behind these provisions that the union should have to make its position quite clear to all those most directly concerned. Accordingly, following repudiation by the PEC, president or general secretary, a union will in future have to do its best to give individual written notice of its repudiation to all its members who were or might have been induced, and to their employers. However, this is not an absolute duty—which we recognise might be impossible for a union ever to satisfy in this context—but the requirements are couched in terms which mean that a union which did not make a sufficient effort to satisfy the conditions would be at risk of an injunction or damages.
Amendment No. 27 seeks to replace the requirement in Section 15(5)(b) of the 1982 Act by providing that if a union gives individual notification to those members it believes are taking, or are likely to take, part in the industrial action, or puts the repudiation notice into its journal or one of its circulars that relevant members normally receive or see "within reasonable time", that would be held to satisfy the requirements of new Section 15(5)(b).
However, although the amendment provides that the union could give individual notification to all its relevant members, it does not specify what form this notification should take. It is not even necessary that the notice be written. Similarly, it only states that the journal should be seen by members "within a reasonable time". What may be a reasonable time for the compilation and publication of a union journal is unlikely to correspond to the provisions of Clause 8(4) which allows one working day between the date of repudiation and the date on which the employer may start selectively to dismiss those taking the unofficial action.
If there was a dispute about whether a union had satisfied the requirements of Section 15(5)(b), it would be for a court to determine the matter in the light of the full facts. The amendment would make it very likely that neither the employer, nor the union members, nor even the union itself would know whether it had effectively repudiated the action. That cannot be in anyone's interest.

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The Opposition's amendment simply reveals yet again what my noble friend Lord Lucas of Chilworth wanted to say but in fact did not; namely, that noble Lords opposite want unions to be able to continue to fudge and mudge and to leave doubts as to whether a union has effectively repudiated a relevant act. Perhaps they did not hear my noble friend Lord Harmar-Nicholls say that we should leave the Bill as it is and that we should stop looking for chinks in the armour. There cannot be any pin-holes because we must cover every position so that the union is left with no choice but to repudiate the action and therefore escape any liability. It is as simple as that.
Lord McCarthy: I hope that the Minister has finished reciting the contents of the Bill. Even if he does misrepresent my arguments, that is, at least, a 50 per cent. improvement in the situation. However, he misrepresented my arguments in two inconsistent ways. He said, first, that what is proposed is too wide and that it would help the union. He also said that it brings us back to fudge and mudge. However, he then said that it would help neither the union nor its members and that that was what I wanted.
I suppose that that is the kind of argument we can expect to receive at this time of night. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman of Committees: I should remind Members of the Committee that if Amendment No. 28 is agreed to, I cannot call Amendments Nos. 29 and 30.
Lord Rochester Lord Rochester moved Amendment No. 28: Page 7, leave out lines 9 to 12 and insert:
(" 'Your union has learned of the call for unofficial industrial action to which this notice relates and is doing all it can to resolve the dispute in question. Meanwhile you should return to normal working. Otherwise you may be dismissed and you will then be unable to complain of unfair dismissal.' ").
The noble Lord said: On Second Reading I drew attention to the peremptory form in which the notice of repudiation of industrial action must be given by the union to its members under this clause. I added that at Report stage in another place the Minister of State for Employment had eventually seen the point and had said that the Government,
"are prepared to consider whether the proposed words for the union's repudiation statement are the best and most apt in all the circumstances … We shall not close our minds on that issue.—[Official Report Commons, 17/5/90; col. 1071.]
The amendment gives the Committee the opportunity to test the Minister's words. The statement, as it now stands in the Bill and as it will stand with the addition of the proposed Government amendments grouped with this amendment, is altogether too blunt, and even provocative, to facilitate the reduction in unofficial action that we all wish to see.
Those Members of the Committee who have experience of dealing with such action will agree with me that it is helpful if the union becomes involved as soon as possible, and if members know not just that
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the union is aware of the dispute but that it is taking urgent action to resolve it. That explains the first sentence of my amendment.
Such an approach is more likely to keep the union and its members together, and so help in reaching a settlement, than if the union is obliged immediately explicitly to repudiate the actions of its members in the words of subsection (5) (a) and thus limit its freedom to manoeuvre in helping to end the dispute. Of one thing I am sure: that well-managed companies would not for a moment think of using such language when dealing with their employees. Why should a union be obliged by law to do so?
Similarly, the second sentence of the amendment, rather negatively emphasising the union's unwillingness to support its members, as the subsection proposes, tells them positively to resume normal working. The last sentence makes the effect of the members' action—that is, possible dismissal and the inability to claim that it is unfair—plain enough to them, without labouring the point already made in the first sentence that that action is unofficial.
If the subsection is allowed to remain as it is, the union will no doubt tell its members that it is repudiating and will give their action no support; but in doing so it may well be more inclined to add that it proposes to organise a ballot to make their action official, which will help no one.
There may well be flaws in the wording of my amendment; but it, or something like it, is more likely to lead to the settlement of disputes and the limitation of unofficial industrial action than the stark words proposed by the Government in the Bill. I beg to move.
11.15 p.m.
Lord Wedderburn of Charlton: We are discussing Amendment No. 28 moved by the noble Lord, Lord Rochester, Amendments Nos. 29 and 30 tabled by the Government, and our Amendment No. 31. I shall take four points, if I may. It is curious that it has not proved more distasteful to more people that persons or bodies should be subjected to Government diktat about the words that they must say or write. I find that distasteful. I am surprised that the Government have found it necessary to go so far. It does riot seem to us that the evidence, such as it is, requires that action.
However, the Government are not just telling the union that it must send a notice; they are writing it for the union. After what we have heard this evening, Ministers will soon be telling trade unions what they wanted to say, but did not. There is no doubt a point in sending a notice to members to inform them of the position. In so far as the notice is informational, we have suggested that it is inadequate, which is why we tabled Amendment No. 31.
At the moment, the required confession tells members of the position in relation to unofficial industrial action. If members are to be given information on the legal position, they are entitled to be given a comprehensive view. They are therefore entitled to know that even if the union authorises or endorses the industrial action and they take part in it,

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none will have a right to complain of unfair dismissal if the employer dismisses them all. To omit that part of the necessary propositions is to make all the statements written compulsorily rather misleading. The members may think that the action is endorsed and if they come out on strike after a ballot they cannot be dismissed, or at least that they have a right to complain of unfair dismissal. The Government should look at the misleading effect of their words.
I quite understand that the noble Lord on the Liberal Benches moved the amendment with the intention that he put to the Committee of easing all the difficulties the wording of the Bill would entail. However, I fear that we do not find the noble Lord's words an improvement. For example, to force a union to write "You should return to normal working" is—to make the point by reference—to step firmly in that direction on which the noble and learned Lord, Lord Devlin, poured scorn in the report on the ports industry in 1965. It concerned making the union the policeman in industry. I could not agree with the noble Lord and the noble Baroness on such a statement written compulsorily.
A further problem arises where, after the statement is made, in the Government's wording a district official is found not to be doing all that he can, or is not abstaining from support. The union is liable for that until it repudiates him again. Finally, what is the legal standing of these statements? The union is made to promise by law that it will give no support to such action. Is that promise made with the intention to create a legal relationship? Is it something on which the persons to whom it is made can rely? What is the union's liability?
I ask the Minister to comment, first, on the case of an official who does not do what the statement says the union is doing. In the light of the rest of the clause the union is liable until it repudiates him again. Secondly, apart from that vicarious liability, what is the legal status of the statement itself? Is it capable of being contractual or of giving rise to other liabilities? There is no legal defence in the Bill to any liability—no privilege or immunity. The Government must have thought about this and will no doubt give us an answer. That point was not traversed in the other place. In the light of that, the Committee will not be surprised to know that we cannot support this method of forcing the union to make the statements in the proposed amendment.
Lord Wade of Chorlton: As I understand it, we are dealing with a practical situation where, as a result of unofficial advice, an unofficial strike takes place in a company. No work is done. Everything is brought to a halt because of unofficial action which the union plans to repudiate. Is it not in the interests of the union and everyone else for the matter to be put right as soon as possible? That will benefit those who are not obtaining service, the company that has come to a halt and those whose jobs are affected.
I should have thought it would be in the interests of everyone, particularly the noble Lord who is fervently in favour of trade unions, to have a clear-cut system.
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There should be non-provocative wording to bring the employees back to work in the shortest possible time. I hate to disagree with the noble Lord, Lord Rochester, but the government wording clears the point that it might not be right for people to use such blunt language. In this instance, blunt language is necessary to put the matter clearly to bed as soon as possible and to get people back to work.
Lord Strathclyde: The Green Paper Unofficial Action and the Law proposed that when a union repudiated a call for industrial action by any of its officials, it should be required to make it clear to all relevant members that the repudiation was unequivocal. That is the purpose of having a statement which is required to be part of the written notice of repudiation which a union will have to send to relevant members when it repudiates such a call. I stress that a union will be free to put other statements or remarks on a repudiation notice. Doing so will not affect the status of the written notification as part of the effective repudiation procedure unless any such additional statement is not compatible with the repudiation itself. That is the point that my noble friend Lord Wade made.
As the noble Lord, Lord Rochester, said, the Minister of State in another place promised to give consideration to the required statement as it appeared in the Bill with a view to ensuring that it was quite apt. Following that consideration, we have tabled Amendments Nos. 29 and 30 because we believe that they ensure the required statement better reflects the actual nature of the repudiation process and what it involves.
As regards Amendment No. 28, it is common ground that unions should do all they can to help to resolve disputes and to discourage their members from taking unnecessary industrial action. As an example of the Government's position on these matters, a statutory code of practice on trade union ballots and industrial action recommends the union should do whatever is practicable to resolve disputes without recourse to organising industrial action. However, the resolution of disputes must be left to the parties directly involved. It is by no means an automatic presumption that they will include a union, even where union members are taking industrial action. For example, even in such circumstances, or where a union official has called for industrial action by union members, it should be open to a union to decide that it wanted nothing whatsoever to do with a dispute or with its resolution. I hope that is not a likely scenario, but it is a possible scenario and it is one which the amendment of the noble Lord, Lord Rochester, would not be able to cater for.
Amendment No. 31 seeks to add words which have nothing to do with the repudiation process and have no necessary relevance to union members receiving such a notice. There is no need to require the repudiation notice to say anything about liability to non-selective dismissal while taking industrial action.
Doubtless some sort of argument could be mounted for telling union members about almost any aspect of the law—for example, that they have a remedy if their

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union attempts to discipline them for taking part in industrial action, or that calling for industrial action to establish or maintain any kind of closed shop practice is unlawful. However, the truth is that these provisions have no more necessary relevance to a repudiation notice than those which the Opposition propose to add. Where industrial action would be unofficial by virtue of a union's repudiation of a relevant act, the written notice of its repudiation should leave members in no doubt about where their union stands. That is what the required statement helps to achieve. Bearing that in mind, I hope that the Members of the Committee opposite will accept the Government's amendments and withdraw their own.
Lord Rochester: I am naturally sorry that the noble Lord, Lord Wedderburn, did not feel able to support this amendment. There have been a number of amendments which he has moved today with which I have disagreed, and therefore he is quite entitled to take the view that he has. In any case, my aim here, as I hope I made plain, was to test the words of the Minister in another place. I have taken the view that the notice as it stands, and as it will stand if the Government's amendments are accepted, is altogether too stark. I believe that is the word I used.
My fear is that if the clause remains as it is, a union will do what it is told to do by statute; but it may well be more inclined in doing so to add that it proposes to organise a ballot with a view to initiating official action. I believe I said that earlier. However, it is plain from what the Minister has said that the Government believe that, with the addition of the words that they have introduced, the wording in the Bill is the most apt in the circumstances. Having put the matter to the Committee in that way, I have no alternative at this stage but to withdraw my amendment.
Amendment, by leave, withdrawn.
11.30 p.m.
Lord Strathclyde Lord Strathclyde moved Amendment No. 29:
Page 7, line 9, leave out ("any call") and insert ("the call (or calls)").
On Question, amendment agreed to.
Lord Strathclyde Lord Strathclyde moved Amendment No. 30:
Page 7 line 10, leave out ("such action") and insert ("unofficial industrial action taken in response to it (or them)").
On Question, amendment agreed to.
[Amendment No. 31 not moved.]
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 32:
Page 7, line 21, leave out paragraph (a) and insert:
("(a) is a party to a relevant commercial contract;").
The noble Lord said: The amendment raises a point which comes later - possibly six months later - in the process of repudiation. It relates to new subsection (6A) which requires that the union respond in the way set out to a request within six months of the purported repudiation where the person involved:
"is a party to a commercial contract whose performance has been or may be interfered with as a result of the act in question"
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and has not previously been told of the notification of repudiation.
I had some sympathy with one remark of the noble Lord, Lord Wade, who said that, in the situation with which this clause particularly deals, it was right to settle the matter as soon as possible. I have no quarrel with that. In certain ways, some of our amendments have been directed to that. The problem here is that the union cannot be sure whether its repudiation has stuck until six months have passed.
Furthermore, our amendment does not try to unseat the Government's position in that respect. That would be an exception that would make the Minister respond in a way that we all recognise. It seeks to modify the position. The Government are introducing a risk for the unions that someone of whom they have never heard, about whom they know nothing and whose commercial contract might have been interfered with will write to them. The tenses in the Bill are rather strange, but I take it that the union will receive a letter saying, "My commercial contract is one of which the performance either has been or might have been interfered with. Will you please confirm your repudiation?". That is unnecessarily burdensome.
The normal principles on which one proceeds surely in regard to the kind of liabilities that can emerge from an interference with the performance of contract are those which, broadly speaking, are similar to the tortious liability since Lumley v. Gye in 1853, where some kind of knowledge and intention is required. We have put it on the footing, possibly even less advantageous to the union, that the commercial contract must be one that the union could reasonably foresee would be substantially interfered with at the time of the act. If the union could not possibly reasonably foresee that a contract would be invoked, it seems rather onerous that a person with some other contract could act.
Let me take an example. I agree with the noble Lord that the normal case will be spontaneous action in the plant or office. We must never forget that it is not only in the plant that these actions occur. White collar workers have their problems too. But I cited the example in Truro. I do not know why, but I did. The union officials did their best to settle the grievance and the union repudiated the action as required. It consulted its lawyers—and it will have to consult its lawyers on many such matters which will create their own problems as well as expense. The matter is thought to be settled and the file put away. They congratulate themselves.
Unhappily, the General Secretary and the Truro branch secretary are both rather unwell and die three months later. Two months after that the new General Secretary gets a letter from someone in John O'Groats who says that his contract was or might have been interfered with by this action, which by now almost everyone has forgotten. Indeed, no branch minutes can be found because the Truro branch secretary's wife—many branches operate from home—cannot find them. One day short of the six months' limitation period there appear letters from parties to commercial

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contracts from various parts of the globe—because I apprehend that this is not necessarily limited to the United Kingdom in its extent. That cannot be reasonable.
I quite understand that the Minister is tired of our amendments and we must apologise for them. But surely that kind of situation cannot be something that this legislature wants to put on the statute book. Some limitation to new subsection 6(A) must surely be allowed. There must surely be a limitation to commercial contracts which are within the foresight or apprehension of somebody at the time of the relevant act which is being repudiated. Otherwise, quite the opposite situation will arise from that which the noble Lord indicated to us.
The matter will not be settled as soon as reasonably possible. The question of whether the union has effectively repudiated will hang about for month after month waiting to find out whether anybody writes in and whether the requisite letter is sent in return. I cannot believe that that is a sensible system of law. It is certainly not one of which I know any parallel anywhere in the world.
If the Minister can give us any kind of assurance on this point, I think we should all be very happy to see some improvement made in what is a not very sensible part of the Bill. I beg to move.
Lord Strathclyde: I rather feel that the noble Lord, Lord Wedderburn, is making very heavy weather of all this. The provisions of the new Section 15(6A) are not necessarily the most significant or important of the changes that Clause 6 would make to Section 15 of the 1982 Act; nonetheless they are useful and logical changes. There is certainly no case for removing these provisions or modifying them in the way proposed by the amendment.
The new section recognises that there are others, besides relevant union members and the employer or employers of any such member, who have a legitimate interest in knowing whether a relevant act has been repudiated by a union. To give an example: a vehicle manufacturer might be properly interested to know about the status of industrial action being called or taken if it affected the supply of some key component—even though the inducement arose in the context of a dispute between workers and another employer.
The provisions recognise that the interest of any such party is not to be taken as "automatic" in the same way as, for example, the interest of the employer of members who are the target of the relevant act of inducement to take industrial action. That is why the new Section 15(6A) only requires a union to "confirm" its repudiation "on request" from a party to a commercial contract.
There does not seem to be any reason to limit the right to request (as proposed by these amendments) and obtain relevant information to those who can convince or persuade the union that they face "significant" problems. It is quite enough that there would be some effect in terms of interference with commercial contracts. Indeed, that is the "normal"
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test in respect of tort. On that basis I hope that the noble Lord will read carefully what I have said and will withdraw the amendment.
Lord Harmar-Nicholls: As a listener, if I had to give a judgment on the submission that the noble Lord, Lord Wedderburn, gave on his amendment, I should have thought that the submission proved that the words in the Bill were about right. He had to kill two people; he had to have a widow left who could not read or write; and so on. It was an amazing submission; one had to go to those extremes to prove the point. It was rather like the prim old lady who called in the police to say that the chap in the window opposite was doing things that she found rather unpleasant. When the police said, "But you cannot see in that window," she replied, "You pull up a table, put a chair on top, stand on top of that, and then you'll be able to see." It was a submission that was not in keeping with the normal clarity of the noble Lord.
Lord Wedderburn of Charlton: I am sorry that I did not tempt the noble Lord, Lord Harmar-Nicholls, into the spirit of the example. I appreciate that I would never win many cases in front of him if he were on the Bench.
My submission was a quite absurd case. But it is one way of testing a Bill. One does not test a Bill with the easy cases. Anyone can do that. One tests a Bill with the absurd cases. One says, "That is ridiculous. Of course the union would not be liable there." But they would.
I put the submission the other way, as the noble Lord wishes. The Minister mentioned that the position was parallel to liability in tort. With great respect, that is wrong. Such liability in tort involves some knowledge, intention or foresight in respect of the new-(angled liabilities. Those examples are not absolute. The parallel is absolute.
Secondly, the noble Lord says that the union has only to confirm. The union can hardly do anything else. The union cannot write letters to all the traders in the world saying, "By the way, do you have a contract that might be interfered with by the action that was repudiated five months ago?" Of course the union can only confirm. Even the Government cannot go further than that.
Thirdly, and most importantly, I waited to see whether the Minister's examples were of contracts which were not reasonably foreseeable by the union as involving an interference of their performance. He gave no such examples. The example that he gave was a fair one which would fall within our amendment. Our amendment would make his contract between the vehicle manufacturer and the component manufacturers manifestly and reasonably foreseeable by the union. Indeed, if the union has to work to this structure, it might wish to write off its own bat to the component manufacture, "This is all off. We have repudiated it."
The Minister's example represents a speech for the amendment. He has not produced one example (nor were examples produced in another place) of a contract, not foreseeable by the union or known about

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by the union, where the Government say that it would be reasonable for the union to be at risk of a letter during a period of six months which, if there were to be a mistake, could totally destroy its repudiation. The liability is absolute.
If the repudiation is destroyed, the liability to damages for a particular period of interference with the contract could be quite substantial. Yet such liability will turn upon adventitious factors which even the Government cannot defend by giving an example of a contract in the performance of which interference is not foreseeable.
I believe that the Minister's response puts an obligation on the Government to consider this matter before Report. It is most serious. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11.45 p.m.
Lord McCarthy Lord McCarthy moved Amendment No.33:
Page 7, line 26 leave out ("forthwith") and insert ("within two weeks").
The noble Lord said: This is without doubt the tiniest amendment of the day. Since the Government have not listened to any previous submissions—we have not made so much as a pinhole—we hope that they will consider the possibility of changing the word "forthwith". I cannot imagine who this mysterious vehicle manufacturer would be, or the circumstances under which this situation would arise. However, when this imaginary vehicle manufacturer comes out of the bush and says, "Five months, three weeks, two days ago, I believe there may have been a repudiation that affects me," without looking at the record, without knowing what on earth it is about, the union has to send a letter in writing "forthwith". When I looked up the word "forthwith" in the Oxford English Dictionary it stated "immediately". I could not even find "without delay". We say, "For goodness sake, you might give them two weeks". I beg to move.
Lord Strathclyde: The amendment adds an arbitrary period of two weeks to the requirement to inform a customer or supplier whether the union had or had not effectively repudiated a relevant act which had affected or could well affect commercial contracts to which it was party.
It is worthwhile pointing out—and perhaps the noble Lord, Lord McCarthy, has overlooked the point—that the union is only being asked to confirm something that has already happened. The union is, of course, entitled to expect the request to be made in appropriate terms which enable the union to identify the inducement which the customer or supplier wishes to know about. It will then be a very simple matter to confirm that the inducement has been repudiated where that is the position. A court would not expect a union to do more than was practicable to satisfy the requirement to respond to the inquiry forthwith.
I see no reason why it should be preferable to fix a standard period of two weeks during which a union could ignore a relevant request, provided that it responded at the end of that period. I cannot see the argument.
Lord McCarthy: Suppose that the note comes in five months and four days after the event. The first thing that the poor old general secretary will ask is "How do we know that it was us and not the AEU or the T&G?". Unless the Government want the union to send out repudiation notices that have nothing to do with it, it should be given a few days to ring round and find out who was responsible. Perhaps nobody was responsible. The union should have some time. It should not have to respond forthwith, or immediately, but within two weeks.
Lord Strathclyde: Will the noble Lord accept that we are not talking here about repudiation but about confirmation? That is all. It has nothing to do with any other union. Surely the union will know whether it repudiated something, even it it was five months ago. It just has to confirm it. It is simple.
Lord McCarthy: What the union repudiated was a primary action, because it made everything else illegal. Here, from out of the blue, comes not the man who was involved in the primary action, not the man the union wrote to—the union keeps his letter on file—but a vehicle manufacturer who is a party to a commercial contract. The union will not know how many people who are party to commercial contracts were involved in its strike six months ago. Give the union a fortnight to find out.
Lord Strathclyde: I believe that the noble Lord, Lord McCarthy, is getting excited about nothing. He simply has not proved his case that it is not possible for the union simply to confirm that it has repudiated something. It cannot be that difficult. The court would not expect a union to do more than was practicable to satisfy the requirement to respond to the inquiry forthwith. That is why I feel that the noble Lord is getting excited about nothing. He has not made his case.
Lord McCarthy: Is the noble Lord saying that the union should repudiate it whether or not it was involved, whether or not it was the AEU, that that does not matter and the union should just repudiate immediately? Why can it not have time to find out whether it was involved?
Lord Strathclyde: I am not sure that the noble Lord has yet grasped that we are not talking about repudiation but confirmation. All the union has to do is confirm "Yes, we repudiate it". By all means, why does the union not confirm that it repudiated action which had nothing to do with it? It does not seem to make much difference so long as the union provides the confirmation.
Lord Wedderburn of Charlton: Suppose that the union does not believe the letter it receives. Suppose that it thinks that the company is trying it on again. Suppose that it thinks "He is a confirmation of repudiation collector. We do not believe him. He did not have a contract". Is the union allowed to check up? Is that permitted within "forthwith"? Does it have time to do that?
The Minister must take the matter seriously. Here is a union, a responsible body, which first has its hands tied as to the words it must write in its repudiation and

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now is to write compulsory letters. Some general secretaries and national executives will not take easily to that. If the Government say that they are not even to have time to check up on the bona fides of letters they receive, that will stick in their gullets even more. If they are to have time then "forthwith" seems rather strict.
Lord Strathclyde: The noble Lord has failed to appreciate that the amendment we are discussing does not change the position. The trade union could easily wait two weeks before it sent off its confirmation and exactly the same situation would exist as if it were sent forthwith.
Lord McCarthy: We have had this so often in the past. In effect, the noble Lord says to us that he has reason to believe that a judge would say that a fortnight is "forthwith". He cannot say that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 34 not moved.]
Lord McCarthy Lord McCarthy moved Amendment No. 35:
Page 7, line 33, at end insert:
("(7A) The Secretary of State shall by regulations make a scheme providing for payments by the Certification Officer towards expenditure incurred by independent trade unions in respect of such payments required in giving notice to members by reason of this section under section 15(5) (b) (i) of the Employment Act 1982.").
The noble Lord said: This is a small attempt to make the Minister generous. Since the 1980 Act, the Government have introduced a payment scheme for ballots. We are suggesting that that state payment scheme should be used, invoked and operated for repudiation notices.
The Committee will remember that Section 1 of the 1988 Act created the state payment scheme in respect of secret ballots under the control of a certification officer. It covered a whole range of ballots on industrial action, elections, and so on. As a result of that scheme, last year the registrar's report said that 67 unions applied for refunds for 483 ballots to a total value of £1.3 million; that is, something like 50 per cent. of the cost of those ballots, because the scheme does not cover the whole cost.
We are saying that if repudiation gets under way there will be a considerable cost to a union because that must be done in the way prescribed by the Bill. A personal letter must be sent not only to all the workers involved but also to all the employers involved. The Government are imposing the costs of that upon the union. They have accepted in the past that as regards the cost of the ballot requirements for the unions they should provide some support. It is only reasonable to suggest that a similar scheme should cover repudiation. I beg to move.
Lord Strathclyde: It is exceptional for the costs of carrying out statutory duties to be subsidised from public funds. The position in respect of trade unions is no different and there is no good reason why the public should bear any of the costs which properly fall upon trade unions in discharging their statutory duties.
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By contrast, the ballot funding scheme was established to encourage the voluntary extension of balloting before industrial action. The law was subsequently changed to require unions to ballot their members as a condition of securing immunity from legal proceedings but the Government have not as yet seen fit to terminate the scheme. If the Opposition is concerned about an alleged inconsistency, that can soon be removed by the abolition of the ballot funding scheme, although I must add that at present there are no plans to do so.
Lord McCarthy: The noble Lord must have left his brief. I cannot believe that his adviser has written that, even at ten to midnight. Are the Government really telling us that they are going to abolish the statutory ballot scheme? What an argument. That is what the Minister is threatening. He is saying that we should not ask for this or they will take away that. I cannot believe that that is a reasonable, sensible, logical answer.
Lord Strathclyde: The noble Lord knows that that is not what I said. He argued that there was an inconsistency. There need not be an inconsistency. There is no inconsistency and there is no basic right that statutory duties should be subsidised from public funds. It is as simple as that. I made the position quite plain as regards the ballot funding scheme. The Government have no plans to abolish it.
Lord Wedderburn of Charlton: What the Minister says is rather worrying. He says that there is a juridical difference between this clause and those clauses concerning ballots. He says that that is why no funds can be provided here but can be provided there. He says that that is a statutory duty. I do not follow that.
It is rather worrying that that has been introduced as a statutory duty. There is no statutory duty on the union to repudiate. If it chooses not to do so, it is liable. If it chooses not to hold a ballot, it is liable if the employer sues. There is no difference whatever. Both are matters of civil liability and both are conditions imposed by statute framing the civil liability or exculpation. There is no ground whatever for saying that one is a statutory duty and the other is not. If that is the Government's case, the sooner they produce the money to fulfil the work they are creating, the better.
Lord Strathclyde: The noble Lord is right. The union has a very clear choice as to what it does; the point of the statutory duty is that it gives the choice. However, as I said—though I do not believe the noble Lord heard me the first time—the ballot funding scheme was established to encourage the voluntary extension of balloting before industrial action. The law was subsequently changed to require unions to ballot their members as a condition of securing immunity from legal proceedings. Just because we did that then, does not mean that we need to do it now. It is as simple as that.
Lord McCarthy: It is not as simple as that. The Minister says: "When we introduced the scheme we gave you the money because it was voluntary". If that had been the Government's policy, they should have

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taken the money away when the scheme was made statutory. That would have been consistent. We would have complained and said that it was typical of the Government; but at least it would have been consistent. If they had done that, we would have had no case to bring before them tonight.
For whatever reason, perhaps because they were thinking logically for five minutes, the Government did not do that. They allowed a situation to be created in which the scheme became a statutory scheme; in which there were no options and in which it was compulsory, and they gave the money to fund it. That is the present position. Now along comes another statutory scheme. Under this statutory scheme they are saying that there shall be no money. That is inconsistent and unfair.
Lord Strathclyde: There is nothing more that I can usefully add. If the noble Lord does not accept what I have said, then I am sorry. We do not see why public funds should be used to subsidise this scheme. The noble Lord has not made a case except to say that because we provide funds in one case, we should do so in another. That is not much of an argument.
Lord McCarthy: I shall not divide the Committee tonight. I shall bring this matter back on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 36:
Page 7, line 33, at end insert:
("(7A) Nothing in this section shall render a trade union liable for any act done by an official at a time when he has, in accordance with the rules, ceased to be an official of the trade union.").
The noble Lord said: Amendment No. 36 touches on a point which goes to the whole clause. This clause makes the Bill as it stands, especially in the light of the debate, legally ambiguous; indeed it is almost impossible. The reason is fundamentally the difficulty that one gets into when one tries to create vicarious liability without any reference to authority in the doctrines of agency.
The new subsection (3B) excludes the rules of the union for the purpose of the application of the preceding paragraphs (b) and (c) of the new subsection (3). Clause 6(7) repeals the definition of "official" which hitherto applied in Section 15 of the 1982 Act. In another place it was quite rightly pointed out by government ministers that the definition of official that will apply to the Bill is contained in Section 30 of the Trade Union and Labour Relations Act 1974. It is necessary to read a few words of that definition. It says that the word,
"'official', in relation to a trade union, means any person who is an officer of the union or of a branch or section of the union or who (not being such an officer) is a person elected or appointed in accordance with the rules of the union to be a representative of its members or some of them, including any person so elected or appointed who is an employee of the same employer as the members".
That last phrase normally makes us think of shop stewards and other lay representatives.
Therefore the new subsection (3B) excludes part of the definition and the whole clause becomes circular in its ambiguity. If a shop steward is appointed without any authority under the rules of the union and induces members to take industrial action, then the union is liable. That is clear. Theoretically—and to some extent in practice—the union can then repudiate under the new and cumbersome procedures of repudiation. However, let us suppose that the union's national executive committee, fearing that the shop steward or any other representative is to commit some further act for which the union may be liable, and—to go into the vortex of continuous repudiation—let us suppose it withdraws his credentials, to put it in the way that would apply to a number of unions, what happens if he now induces members on the shop floor to take further action? The withdrawal of credentials would, under many rule books, amount to the end of his status as an official. But we are not allowed to look at the rule book. The new subsection (3B) states:
"The provisions of paragraphs (b) and (c)" of subsection (3)—
they are the paragraphs that create liability—
"apply notwithstanding anything in the rules of the union".
How does the union cause an official to cease to be an official? We submit that the amendment is necessary as a matter of pure commonsense to say that in accordance with its rules, which is in accordance with the definition in Section 30 of the 1974 Act, the official ceases to be an official when the union ends that relationship. I cannot believe that the Minister will find this an impossible amendment. I beg to move.
12 midnight
Lord Strathclyde: The amendment would enable a union to avoid potential liability for any relevant act of its officials or committees if the union happened to have a rule which provided that in relevant circumstances an official who did a certain act was no longer to be regarded as an official—the obvious implication of the amendment. What would happen if any such option was to be open to unions? It must be reasonable to assume that unions would proceed forthwith to make such rules as were necessary to restore the status quo. Certainly the union's rules might then deny shop stewards the authority to call for industrial action on behalf of the union. But would members appreciate that sort of technical difference? I venture to suggest they would not.
Paragraph 2.7 of the Green Paper explained:
"Unofficial action may be seen by a union as a useful means of putting pressure on an employer before or during negotiations".
As I said in reply to a previous amendment in regard to British Coal, the National Union of Mineworkers has rules which preclude officials below a certain level in the union hierarchy from calling for industrial action on the union's behalf. However, in reality there has often been very close involvement by lay officials in industrial action affecting particular collieries and the union has failed to intervene in any way. On that basis I do not feel that the amendment can be accepted.
Lord Wedderburn of Charlton: I accept one point made by the Minister. An automatic cesser clause—that is, words which made the official cease to be an official in the event of certain facts which might create liability—would evade the purpose of the new section. It would be easy to amend the words of our amendment to avoid automatic forfeiture, so to speak. However, with the rest of his remarks the Minister confirmed my worst fears. It seems that once you are an official within the meaning of Section 30 of the 1974 Act you are an official for ever—for life if you want. The union can never get rid of you under its rules and that is the end of the matter.
I thought we were in Alice in Wonderland earlier in the evening but something more Kafka-like now begins to appear in the Bill. Unions when they appoint officials—however they do so, and it is done in many different ways—and especially lay officials cannot rely on their rules ever to get rid of them. I cannot believe that the Minister wants that in the Bill. I cannot believe that the courts would accept that that is in the Bill because it is so absurd that surely they would find a way round it.
Lord Strathclyde: The Government certainly do not want to look absurd in putting through this legislation and it is fair that the noble Lord, Lord Wedderburn, should point out the inadequacy of this point. I do not like the amendment but there may be something in what the noble Lord says so on that basis I am happy to reconsider the matter without any commitment to bringing forward something on Report. However, I will examine the position carefully.
Lord Wedderburn of Charlton: I am grateful to the Minister for that minimum statement of reassurance. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman of Committees: If Amendment No.37 is agreed to I cannot call Amendments Nos. 38 or 39.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 37:
Page 8, leave out lines 5 to 7.
The noble Lord said: There is a certain difficulty about this matter at this hour. Perhaps I may explain to the Committee what I propose to do about it. Amendment No. 37 deals with that part of Clause 6 that goes into something different from the rest of the clause. Similarly, Amendments Nos. 38 and 39, which are grouped with it, and Amendment No. 59, which has been brought into the same group, deal with contiguous matters.
The place of the interlocutory injunction is what really matters at the end of Clause 6. What really matters is that, if the union is liable, can someone easily get a court order against it? The answer is yes, and unfairly so. We say that when vicarious liability is extended as has been done here, the ease with which the interlocutory injunction can be obtained and, in addition, the risks of contempt of court that the union may have to bear are much too great.
Subsection (8) gives the courts power to make wider orders than is customary. That is then applied as well
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to contempt of court proceedings. The reason I have spoken to these amendments is that it is necessary to put on record our firm conviction about these procedures on interlocutory injunctions, in particular in relation to ex parte injunctions, and even in respect of the extensions of liability in recent years in relation to contempt of court. In order to stop anyone leaping in about enforcing the orders of the court, I say that they must be enforced. The judgments that are enforced by contempt of court powers in the High Court in England in particular are sanctioned by very severe remedies, and not merely in trade union matters, which are totally unmatched in civil jurisdictions in the courts of most countries in Europe.
These are matters on which I wish to speak. However, I put on record our concern with this area. We are particularly concerned with the extensions both of liability and of enforcement powers in Clause 6(8). I put the matter that way because there is not grouped with these amendments the subsequent Amendment No. 56. The issue which we wish to raise in connection with injunctions can perhaps be more properly raised on Thursday rather than now. It is not possible not to move these amendments because that would mean that we registered no point about them. They are not amendments about which I wish to develop a long argument at this time of night. It is a somewhat technical argument that I shall have to develop. With those remarks I move this amendment with a clear indication to the Minister that I shall ask leave to withdraw it. I beg to move.
Lord Strathclyde: As the noble Lord has said these amendments bring us into the territory of a matter which I know is one which Members of the Committee opposite regard very strongly. It may be helpful if I first address Amendments Nos. 37 and 80. These seek to remove the provisions of Section 15 and Section 1 of the 1988 Act proposed by the Bill. The effect would be to prevent the provisions of Section 15 of the 1982 Act from applying to contempt of court proceedings. I should add that Amendment No. 38 appears somewhat otiose since it proposes to remove a word that is in one of the lines that Amendment No. 37 proposes to delete.
Following our earlier debates on Clause 6, I think we can say that there is no dispute between the Government and Members of the Committee opposite that the provisions of Section 15, and of that section as it would be amended by Clause 6, create special conditions for establishing a union's vicarious liability for certain acts of its officials and committees. We may not agree on the need for such arrangements but we can surely accept their reality. Section 15 establishes potential union liability for certain tortious acts. It also applies to the determination of whether a union is to be held to have induced members to take industrial action for the purposes of Section 1 of the 1988 Employment Act.
If relevant proceedings are brought against a union, and the court issues an injunction or order against the union, the terms of that order may require the union to refrain from doing certain things, or may indeed require it to take certain steps. The question then

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arises of how to determine whether what a union official then does, or fails to do, following the issue of the injunction or order, is to be taken to be an "act of the union" for the purposes of determining whether the union has obeyed the terms of the injunction or court order.
The Government believe that for such purposes it must be sensible to apply the provisions of Section 15 in the same way. That is precisely what Clause 6(8) proposes in the words which Amendment No. 37 seeks to remove:
"The provisions of this section apply in relation to proceedings for failure to comply with any such injunction or interdict as they apply in relation to the original proceedings".
The previsions of Paragraph 3(4) of Schedule 2, which Amendment No. 80 seeks to delete, do the same in respect of proceedings which may follow the issue of an order against a union under Section 1 of the 1988 Act. Without that provision, the courts would apply common law principles of vicarious liability, as is apparent from the judgment in the case in 1985 of Express and Star Ltd. v. NGA. But it cannot be right to allow, for example, a shop steward, whose act of calling for industrial action has led to an injunction being awarded against the union, to flaunt an order of the court which requires the union to withdraw the call without laying the union open to possible contempt of court proceedings. Yet that is exactly what might happen if these amendments were accepted.
Amendments Nos. 39 and 81 appear to be deigned to make it impossible to obtain ex parte injunctions if any such application depends on provisions in Section 15 of the 1982 Act or in Section 1 of the 1988 Act. That would certainly be their effect. But what would this mean? In a nutshell, unless a union designed to turn up at the relevant proceedings, the person making the application would find himself absolutely stymied. Unless the union happened to be willing to appear before the court, it would either have to be forced to attend or the applicant would be in a hopeless position. I can think of few more effective ways to ensure that unions were once again placed completely above the law. Indeed, the situation would be even worse in that respect than it was in the 1970s. The protection afforded against ex parte proceedings would be such as to mean, in effect, that unions were protected against penalties which a court would impose for unlawful acts as long as they chose not to turn up in court.
In summary, the new clause is neither necessary nor desirable. The Government have confidence in the courts, even if that confidence appears not always to be shared by all noble Lords opposite. Accordingly, we do not see any problem with the present law that needs the kind of remedy proposed by the new clause. I know that the noble Lord intends to withdraw the amendment, but I hope that he will read carefully what I have said.
Lord Wedderburn of Charlton: I must make two points to the noble Lord. I was trying to avoid this until Thursday but he has a brief at which we shall have to look again in the context of Amendment No. 56.
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First, it is really not the case that, in the light of the Express and Star Ltd. decision in the Court of Appeal—I hope that the noble Lord has the Court of Appeal decision—and without the provisions that the amendments would remove, a union would escape liability in the situation which he described. That is not the case. The Court of Appeal made the union liable. It was a contempt decision because the union had acquiesced in a manner which made it guilty of nods and winks to officials about obeying the order. That was done on common law principles. It did not need the extension in the Bill to decide that case in the way in which it was decided.
Secondly, one point on injunctions must be made. It is not a question of confidence in the courts. It is a question of confidence in procedures. Perhaps I may draw the analogy of family matters. It is not a lack of confidence in the courts that has made us reorganise our family law and send 1,000 judges of various ranks on admirable training schemes. It is a revision of the procedures. That which applies sensibly in one area of social life does not always apply sensibly somewhere else. The reality of the ex parte interlocutory injunction obtained in the absence of the trade union defendant is a scandal.
This section in the 1974 Act is supposed to have stopped it. Yet we find that in 1987 a trade union whose members were engaged in industrial action for over a fortnight was subjected to an injunction obtained by counsel from the judge at his home on a Sunday afternoon over the telephone. No doubt everyone acted as they thought proper. However, that is not a procedure which is sensible in modern industrial relations.
Moreover, if you add what happens now to what the Government will enact at the end of Clause 6, there will be far more explosive situations. There is much more to say about this matter and hope that we can traverse some of the ground in respect of injunctions with Amendment No. 56. With those remarks, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 38 and 39 not moved.]
12.15 a.m.
On Question, Whether Clause 6, as amended, shall stand part of the Bill?
Lord Wedderburn of Charlton: We; have given notice of our intention to oppose the inclusion of this clause in the Bill. It is perhaps wrong that the record should cease without a few brief closing remarks. What do we see when we look at Clause 6? We see a clause which is determined to make the trade union liable. It is determined to make it liable whether or not those who acted for it had any authority. It is determined to make it liable whether the persons concerned could possibly be known to the trade union either as a group or, as we saw, as individuals or members of other unions. It is a departure from every conceivable principle of law which applies to other bodies.
I shall quote what the Minister said at 10.39 p.m. this evening. He said:

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"Unions are very special bodies".
Indeed they are. However, West End clubs are very special bodies, but we do not make them liable for someone who is neither an agent, an employee nor anyone of whom they have never heard. Of course we do not do so. We sit down and consider what are the right principles of law to apply to such a social institution. That is a line of argument which we have developed and one which I do not feel the Minister has answered. I say that because if the only answer is that
"unions are very special bodies",
we do not know where we are. We do not know what principles should apply.
The nature of the liability which is emerging from the discussion of the repudiation provisions, for example, is such that there has never been such a legal liability for unknown acts of unauthorised third parties since the Roman law liability for acts done by wandering tame animals. You could not get out of it. If you had one, then you were liable. It is rather like that situation. If you have someone who gets himself called an official, that is it; there is no possibility of avoidance of liability.
To all of that is added the ease of the injunction and the risk of contempt of court. When you add it all together, what is being done is a step-by-step march to clarity. The Minister has said many times that what he wants is clarity. However, that clarity means that the union will be liable. Once one reaches that point, I am afraid—as the noble Lord Lord Rochester and I have pointed out by way of examples—that union officials will be forced to retreat from the kind of situations in which they can at present be of most assistance to a good management which wants them to help to clear up the grievances which may exist in a company.
The union officials will have to retreat and management will feel that it cannot ask for their assistance. On the telephone they will say, "If you ask me to become involved, I have been told by the general secretary to be very careful about it. Our funds are going down; we are forced to write 3 million letters a year in repudiation to all our members at risk; and we get all these letters from people from Omsk to Vladivostok of whom we have never heard who have commercial contracts". The situation is quite absurd. If you want positive, progressive industrial relations, you do not start from that point. It is rather like not starting from York if you want to get where you are going.250
Clause 6 is the worst clause of the Bill in many ways. It is the hinge of the legislation. The vicarious liability principles of any part of the civil law are those which really make the rest of the legislation stick. Therefore, although we shall not take the further step that we would have liked to take if it had been earlier in the evening, by dividing the Committee on the clause, it would be wrong not to register our profound regret that such a clause could possibly be included in any Bill concerned with employment and industrial relations.
Lord Rochester: I too must briefly protest. Far from doing anything to improve this country's industrial relations Clause 6 may, alas, have the reverse effect from that intended by the Government in that it may provoke employees to take more rather than less industrial action. I am not sure that I can agree with the noble Lord, Lord Wedderburn, that Clause 6 is the worst clause in the Bill. I believe that that distinction may apply to Clause 8. However, I must join with the noble Lord in saying that it is a bad clause.
Lord Strathclyde: It is right that a union should be responsible when any of its officials call, or threaten to call, industrial action which will interfere with contracts. The time is right to amend the provisions of Section 15 of the 1982 Act which are relevant to union liability for such acts. It is spurious to argue that a union's liability for such acts should not be subject to statutory prohibitions. First, the basic immunity for such acts is itself a statutory creation. Secondly, unions are bodies which the law has long recognised as appropriate for special treatment, and there is no valid comparison with West End clubs of any kind. Thirdly, there is no valid analogy with other bodies or associations as their purposes are different from those of trade unions.
Unofficial action is a problem which cannot be ignored. Noble Lords opposite wish to ignore it. The clause is designed to make unions properly responsible for the acts of their officials and that is why it is appropriate and necessary. I commend the clause to the Committee.
Clause 6, as amended, agreed to.
Viscount Ullswater: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty-two minutes past midnight.