Employment Bill

HL Deb 10 July 1990 vol 521 cc118-86

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 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 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 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 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 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 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 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 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 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 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.

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 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 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: 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 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 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 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 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 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 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 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.

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.

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 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 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 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.

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 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". 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 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 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 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, 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 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 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.

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 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 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 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 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 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 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.

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 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 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 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 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—

1. (a) the employer shall be presumed to have unlawfully refused employment by reason of that other person's membership of a trade union; and
2. (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 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 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. 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 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.

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 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—

1. (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
2. (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 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 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 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.

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 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 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.

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 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 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 moved Amendment No. 13: 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 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 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.