Lords Sitting of 12 July 1990

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the LORD BISHOP OF EXETER): The LORD CHANCELLOR on the Woolsack.
Lord Southampton—Sat first in Parliament after the death of his father (who disclaimed the Barony of Southampton).
The Duke of Hamilton and Brandon—Took the Oath.

UK Airport Capacity: Report
Baroness Burton of Coventry Baroness Burton of Coventry asked Her Majesty's Government:
Whether they have now received the report from the Chairman of the Civil Aviation Authority advising them on the adequacy of United Kingdom airport capacity in the period to 2005 and, if not, when they expect to do so.
Viscount Davidson: My Lords, my right honourable friend the Secretary of State expects to receive the Civil Aviation Authority's report shortly. I have, as I promised, made sure that the noble Baroness will receive 1 personal copy without delay, and copies will be placed in the Library.
Baroness Burton of Coventry: My Lords, may I take the term "shortly" to mean any day now —even tomorrow? As the House will shortly be going into the long Recess, may I have an assurance that the Government not take any decision on the report before Parliament has had an opportunity of debating it?
Finally, perhaps I may thank him for a slightly more helpful reply.
Viscount Davidson: My Lords, I am delighted by the last part of the noble Baroness's supplementary question, and I thank her. I regret that I cannot improve on "shortly", but I do not believe that the noble Baroness will have to be patient for much longer.
I believe that I can assure her that decisions on the report will not be taken during the Recess.
Lord Carmichael of Kelvingrove: My Lords, will the Minister include this side of the House when he sends a copy of the report to the noble Baroness? We should also like to see it.
Can the Minister tell the House whether the report will also be read in conjunction with the recent reports of IATA which deal with the question of international air traffic? Assuming that he has had some view of the report, does it deal in any way with regional airports?
Viscount Davidson: My Lords, on 24th May I replied to a similar Question from the noble Lord, Lord Underhill, whom I am sure the House will be
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delighted to see is sitting in his place again. I can only ask the noble Lord to refer to the reply that I gave on that occasion.
The Government are keen to encourage the use and development of regional airports to handle all the traffic that they can attract. The Government have approved capital allocations totalling over £240 million since 1981–82 for development and expansion of local authority airports. Our most recent forecasts predict that regional airports' share of all traffic will increase significantly. It will grow faster than that of London airports and that is welcome.
Lord Boyd-Carpenter: My Lords, may I also put in a bid for a copy of the report? In view of the great and long-term importance of the decisions in this matter, will your Lordships' House be given the opportunity to debate the matter before the Government come to a final decision?
Viscount Davidson: My Lords, I shall certainly pass on my noble friend's remarks to my right honourable friend. I am quite certain that he will find an opportunity for initiating a debate—if he can do so before the noble Baroness.
My noble friend referred to putting in a bid. I should like to know what bid he is making. However, I shall ensure that he receives a copy of the report.
Lord Stoddart of Swindon: My Lords, when the Government consider the adequacy of capacity at the airports, will they also consider the adequacy of access to and from the airports? Will they also take into account the environment for those people living in areas around airports who are put to great inconvenience through noise and fumes?
Viscount Davidson: My Lords, yes. The Government take all these matters into consideration.
Lord Clinton-Davis: My Lords, will the noble Lord indicate whether the Secretary of State has considered the use, to some degree at least, of military airfields for civil and commercial flying? If so, what discussions have taken place with the relevant authorities to procure that objective?
Viscount Davidson: My Lords, that again is a matter that is being considered all the time.

Stolen Antiquities: Illegal Movements
3.7 p.m.
Lord Moran Lord Moran asked Her Majesty's Government:
What action they are taking to control the import and export of antiquities that have been stolen or illicitly exported from their countries of origin.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): My Lords, the United Kingdom already has in place channels for international co-operation to help trace stolen works of art. A computerised database indexing stolen artworks already exists; and another, backed by the art and insurance trades, should come into operation next year. In addition the Metropolitan Police arts and antiques squad has been reconstituted.

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UK museum and art trade interests have subscribed to two voluntary codes of practice on the handling of items of dubious provenance.
Lord Moran: My Lords, I thank the Minister for that reply. Does he consider it illogical and unsatisfactory that the British Government, having played a full part in negotiating the UNESCO agreement on illicit and illegal trade in antiquities in 1970, and having signed that agreement, should still not have ratified it? The agreement would surely help to prevent the illegal export of antiquities such as the Romano-British hoard from Icklingham in Suffolk and help to get them back. It would also demonstrate that the Government are serious in tackling the problem of illegal exports and imports of antiquities.
Lord Hesketh: My Lords, there are two problems with the original 1970 agreement. I am sure that the noble Lord is aware of the UNIDROIT discussions that are going on at the moment. One fault is that the original convention allowed for compensation which apparently is now not available in certain countries. The other relates to the original designation by countries and the fact that works of art that would not be considered of importance for instance in this country might well be considered of importance in another country. In certain Latin American countries the production of such an object at a frontier post results in its immediate loss to the owner.
Lord Renton: My Lords, is my noble friend aware that light aircraft are frequently used by thieves to take stolen objects—in many cases, valuable long-case clocks—as quickly as possible to the Continent? Can the Government alert the authorities to be more vigilant about the movements of light aircraft?
Lord Hesketh: My Lords, my noble friend has made a good point. What he says applies not only to high value items but also to drugs. I shall draw his remarks to the attention of the appropriate authorities.
Baroness Birk: My Lords, the Minister gave no good reason to show why this country has not ratified the convention. Is he aware that one of the most recent collections of objects to be stolen were the bronzes from Suffolk? It is understood that they are now in the United States waiting to be sold. Does the Minister agree that if this country had ratified the convention, as the United States has, it would have been possible to ask its authorities to help with recovery through its federal courts? At present we have no locus.
Lord Hesketh: My Lords, there are two problems. First, the matter is the subject of police investigations; secondly, there is the difficulty of identification.
Viscount Hanworth: My Lords, is it not extraordinary that 58 countries, including the United States, have ratified the convention? There may be objections to this country doing so but I believe that it could fall into line. Does the Minister remember a similar case in which my wife was involved? It was at Wanborough where over the course of several nights 2 million gold and silver coins were removed from a field belonging to the noble Lord, Lord Taylor. They appeared later
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in America and Europe. Nothing could be done. There was not even the protection of treasure trove, a subject about which I shall not speak today.
Lord Hesketh: My Lords, I went to some length in my Answer to show that the United Kingdom believes that effective policing, in the broadest sense of the phrase, is the most effective defence. I also went to some length in my second answer to the noble Lord, Lord Moran, to explain that, good though the intentions are, since 1970 there have been serious problems with the convention. For that reason, we do not believe that it has the strength that it appears to have.
Lord Jenkins of Putney: My Lords, is not our reluctance to sign any agreement relating to antiquities due to the reluctance of the British Museum which fears that if we become involved in any kind of international exchange we must return the Elgin Marbles?
Lord Hesketh: My Lords, I suggest that the noble Lord, Lord Jenkins, should address his question to the British Museum and not to this Dispatch Box.
Viscount Eccles: My Lords, if an object is exported without a licence, is there any way in which we can recover it? Recently, a valuable early map of Louisiana appeared on the New York market.
Lord Hesketh: My Lords, if the object has been stolen I assume that one can resort to the civil law. However, I am not aware of the case to which my noble friend refers.

Vagrancy Acts: Convictions
3.13 p.m.
Lord Stallard Lord Stallard asked Her Majesty's Government:
How many persons were convicted under the Vagrancy Acts in the period 1st January 1980 to 31st December 1989.
The Minister of State, Home Office (Earl Ferrers): My Lords, information for 1989 will not be available until the autumn. Convictions during the years 1980 to 1988 were as follows:

1980

3,775

1981

3,291

1982

3,545

1983

3,055

1984

2,636

1985

2,168

1986

1,902

1987

1,965

1988

2,166.

Most convictions under this legislation are for indecent exposure or being on enclosed premises for an unlawful purpose. In 1988, 512 convictions were for begging and 13 for sleeping rough.
Lord Stallard: My Lords, I am grateful to the Minister for that informative and detailed Answer. Can he confirm that the figures show a dramatic increase in recent years in the number of prosecutions and convictions under Sections 3 and 4 of the Vagrancy Act 1824, particularly in the Metropolitan

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Police area? As a result, many people now have criminal records through no fault of their own; they were simply unable to find accommodation that they could afford. Their only crime was to be homeless. Does the Minister accept that such criminalisation of people is tantamount to using an archaic law in order to disguise a serious modern social problem? Would it not be more humane and constructive to repeal Sections 3 and 4 of the 1824 Act and use the vast amount of alternative legislation? Should we not introduce new legislation to make available empty properties in a further step towards finding a solution to the problems of homelessness?
Earl Ferrers: My Lords, the Act may be fairly ancient and some of its contents may be fairly quaint but it is still operative. Section 3 refers to:
"every Petty Chapman or Pedlar wandering abroad and trading, without being duly licensed, or otherwise authorized by Law; every Common Prostitute wandering in the public Streets or public Highways or in any Place of public Resort, and behaving in a riotous or indecent Manner".
The legislation is fairly quaint.
In recent years there has been a strong downward trend. There are now only half the number of prosecutions under the Act that there were 10 years ago. Most prosecutions are for indecent exposure or being on enclosed premises for unlawful purposes. Therefore, they bear little relation to being homeless.
Baroness Ewart-Biggs: My Lords, under the Act has there been an increase in the number of convictions of people under the age of 21?
Earl Ferrers: My Lords, I cannot give the noble Baroness the figures relating to people under 21 years but I can give the figures for those under the age of 17. The number has decreased. During 1980, 1981 and 1982 about 7 per cent. of the total number of people convicted under the Vagrancy Act were under the age of 17. During 1983, 1984 and 1985 the figure dropped to 6 per cent. During 1986 and 1987 it was 4 per cent. and in 1988 it was 3 per cent.
Baroness Fisher of Rednal: My Lords, will the Minister accept figures that were given to me only last week showing that 1,400 teenagers faced conviction in the central London area? Does the Minister agree that that is a further disadvantage for young people when trying to gain employment? Not only are they homeless and have little money but they also have a conviction which will go against them when applying for a job?
Earl Ferrers: My Lords, I daresay that it may, but they should not have committed the offence in the first place. The noble Baroness has given various figures. I do not know whether they are correct because I do not know to what they refer. In 1988 only 72 people under the age of 17 were convicted under the Vagrancy Act. In 19813 seven people under the age of 17 were convicted under the Act. I agree that if a person has a conviction it is difficult for him or her to obtain employment. One of the problems is that people tend to come to London believing that there are many opportunities. It is important that they should not do so unless they first know that they can obtain employment.
Lord Alexander of Weedon: My Lords, the statement recently made by Mr. Michael Spicer as regards what is to be done to lessen the problem of homelessness was a very welcome first step. Perhaps I may ask whether my noble friend agrees that it would be an appropriate corollary to that to remove homelessness as an offence from the criminal legislation? Is it not now time to recognise that that part of the 1825 legislation, which had a quite different economic context, should be removed from our statute book?
Earl Ferrers: My Lords, nobody is convicted of homelessness unless they have positively spurned the offer of free accommodation. Therefore, that part of the Act is used very rarely.
Lord Mellish: My Lords, as we are talking about homelessness, is it not a fact that the vast majority of homeless people have been discovered to be mentally handicapped, and that something is now being done for them? Will the Minister say something about that?
Earl Ferrers: My Lords, yes. A certain amount is being done about that. This morning my honourable friend the Parliamentary Under-Secretary of State for the Department of Health announced that £5 million will be made available over two years for hostel places for mentally ill homeless people.
Lord Mishcon: My Lords, is it not a national disgrace, quite apart from the question of a blot on the Government, that any youngsters under the age of 17 are convicted either of sleeping rough or of begging? Is it a case for welfare people or police advice, but not a case for prosecution?
Earl Ferrers: My Lords, it may well be a disgrace that people under the age of 17 are convicted of anything. However, I say to the noble Lord that he has put forward an astonishing suggestion because those people are convicted only if they have transgressed the law. He said that it is a disgrace that young people should be convicted of begging or sleeping rough. In 1988, there were no such convictions of people under the age of 17.
Lord Stallard: My Lords, in his first reply to me, the noble Earl mentioned a number of offences. He mentioned indecent exposure and prostitution in the streets, and so on. Is he aware that alternative laws are capable of being used to deal with the criminal aspects of this social problem? My point and that of the noble Lord, Lord Alexander, is that we must take criminalisation away from homelessness. That must be removed from the statute book, and the sooner the better. The legislation was introduced to deal with social problems in the aftermath of the Napoleonic wars. It is generally accepted that those wars are finished. We should now make sure that the legislation is abolished, and we should use the modern, up-to-date legislation to deal with the criminal offences.
Earl Ferrers: My Lords, homelessness is not necessarily the same as sleeping rough. It is still an offence to sleep rough; but you can be convicted only if you refuse the offer of free accommodation.

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Homelessness is covered elsewhere other than in the Vagrancy Act, and a great deal is being done to encourage less homelessness.

Sizewell B: Cost Estimate
3.23 p.m.
Lord Hatch of Lusby Lord Hatch of Lusby asked Her Majesty's Government:
What is the latest figure estimated by Nuclear Electric for the cost of building Sizewell B and how this compares with the original estimate.
Viscount Ullswater: My Lords, Nuclear Electric plc, the company which is building Sizewell B, recently carried out a full review of the cost of the project. My right honourable friend the Secretary of State for Energy has restated the Government's commitment to the project after conducting a full analysis of Nuclear Electric's revised cost estimate. The estimated cost to completion of the project is now £2,030 million in 1987 prices. The estimated cost to completion when the CEGB sanctioned the capital scheme was £1,691 million, also in 1987 prices.
Lord Hatch of Lusby: My Lords, has the noble Viscount read the most recent report of the Energy Committee of another place and in particular has he read paragraph 127 of that report? It states:
"Given the recent history of nuclear power it will never again be possible to take assurances as to the viability of any type of nuclear power on trust".
Does the noble Viscount agree with that judgment? If so, what is the value of the figures that he has given this afternoon? If not, how does he claim that he knows better than the work of the Energy Committee in another place?
Viscount Ullswater: My Lords, since that project was approved in 1987, the only real cost increase, setting aside inflation, was the 10 per cent. increase announced last autumn. I remind the noble Lord that the 10 per cent. increase at that stage was due to higher than expected costs as the detailed design was finalised. Some measures were brought in by the nuclear inspectorate on the finalised design. Nuclear Electric states, after its latest review, that there would have been no reason to increase again the estimated costs if the November nuclear decision had not been taken.
Lord Dean of Beswick: My Lords, is it not a fact that some of the extremely steep increases in the construction of Sizewell B have been brought about by the moratorium imposed on the building of a succession of nuclear power stations? Is it not because of that decision that Sizewell has had to carry a far higher proportion of initial research and development costs than would have been the case if the costs had been divided among the new nuclear power stations?
Viscount Ullswater: My Lords, yes. The Government's decision to cancel further nuclear stations means that some costs which would have been
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spread over the four proposed PWR stations will now fall on Sizewell B. Nuclear Electric's review has taken full account of that.
Lord Wade of Chorlton: My Lords, does not my noble friend agree that the nuclear power industry has now been with us for some 35 years—the first nuclear power station was built in 1956 or 1957—and has been the responsibility of successive governments? It is only under this Government that truer information has come to light which has enabled a more efficient operation to be put into place.
Viscount Ullswater: My Lords, my noble friend brings out a very valuable point. The nuclear industry has been conducted on a bipartisan basis over the past 30 or more years. In fact, the Labour Party was responsible for the ordering of the AGR stations, and while in power commissioned most of the Magnox stations.
Lord Jenkins of Putney: My Lords, is the noble Viscount aware that The Times, in a leader recently, has joined the majority of people who believe that Sizewell B should be abandoned? In view of the fact that last night noble Lords were displaying great affection and appreciation for Mr. Murdoch, will the Government not take very seriously the advice of one of his newspapers?
Viscount Ullswater: No, my Lords.
The Earl of Halsbury: My Lords, can the noble Viscount confirm that the cost of nuclear power in this generation includes the cost of writing down to nothing in the books 400 years' supply of depleted uranium which we shall bequeath to our grandchildren and great grandchildren as their future supply, and that this sort of waffle is a complete waste of time?
Viscount Ullswater: My Lords, if the nuclear industry continues and we make a fast breeder reactor, our grandchildren will be very grateful for that supply of plutonium.
Lord Stoddart of Swindon: My Lords, is the noble Viscount aware that it is not waffle to want to have the truth about the costs of nuclear power? Is he aware that over the past 20 years Parliament, the department and the people of this country have been completely and utterly misled by the CEGB and various commercial organisations as to the real viability of nuclear power and its cost in relation to other forms of energy, particularly energy produced from fossil fuels?
Viscount Ullswater: My Lords, nuclear power contributes enormously to the security of supply, and also to help with the cost of cleaning up the environment. That is something which, if we burn only fossil fuels, will cost us a great deal. I see that the noble Lord shakes his head; but the amount of acid rain which has fallen since we have burned all-fossil fuels must be dealt with in some way.
Lord Stoddart of Swindon: My Lords, the Minister is not answering the question that I asked.
Lord Peston: My Lords, as someone who is pro nuclear, I find it interesting to see that there is no limit to the different arguments invented for nuclear power.

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Perhaps I can ask the noble Viscount whether the station will be built for £2,030 million? I also ask if there is any amount of money that the station could cost that the Government would not be willing to spend?
Viscount Ullswater: My Lords, the £2,030 million is the latest figure, at 1987 prices, for the cost of the station. The station is on target for completion. It is going along at a proper clip, and it will be completed on time.
Lord Hatch of Lusby: My Lords, is the noble Viscount discarding the work of the Energy Committee of another place? In addition to the paragraph that I quoted, has he read paragraph 46 which states,
"we are convinced that there has been a systematic bias in CEGB costings in favour of nuclear power"?
Under this Government, that statement has been given in evidence to public inquiries. The figures were a complete fraud and are exposed as a complete fraud in this report. Is the Minister discarding all the work done by the Energy Committee of another place?
Viscount Ullswater: Of course not, my Lords. The Question on the Order Paper related to the cost of building Sizewell B and not the cost to which the noble Lord refers. I have given the latest cost for the building of Sizewell B. I repeated that to the noble Lord, Lord Peston. Those are the figures.
The Earl of Halsbury: My Lords, can we dismiss the word "fraud" as nonsense and pass to the next business?

Business
3.31 p.m.
Lord Denham: My Lords, at a convenient moment after 3.30 p.m. my noble friend the Leader of the House will, with the leave of the House, repeat a Statement that is to be made in another place on the economic summit in Houston.
It may be for the convenience of the House if I announce that the Committee stage of the Employment Bill will be adjourned at about 7 p.m. for about one hour, and that during this adjournment the Code of Recommendations for the Welfare of Sheep and the Welfare of Livestock Regulations 1990 will be taken.

Privileges: Select Committee
3.32 p.m.
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the Lord Graham of Edmonton be appointed a member of the Select Committee in the place of the late Lord Ponsonby of Shulbrede.—(The Chairman of Committees.)
On Question, Motion agreed to.

Leave of Absence and Lords' Expenses: Select Committee
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the Lord Graham of Edmonton be appointed a member of the Select Committee in the place of the late Lord Ponsonby of Shulbrede.—(The Chairman of Committees.)
On Question, Motion agreed to.

Selection: Select Committee
The Chairman of Committees: My Lords, I beg to move the third Motion standing in my name on the Order Paper.
Moved, That the Lord Graham of Edmonton be appointed a member of the Select Committee in the place of the late Lord Ponsonby of Shulbrede.—(The Chairman of Committees.)
On Question, Motion agreed to.

Employment Bill
3.33 p.m.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Strathclyde): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Strathclyde.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 7 [Calling of industrial action with support of ballot]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 40:
Page 8, line 10, leave out ("specify") and insert ("state the person or description of persons").
The noble Lord said: This is a small drafting amendment which we believe the Government may consider accepting. The clause as it stands suggests in its opening lines that there must be a statement of the names of persons who may call industrial action. The clause appears to go on to state that that need only be done by description. I beg to move.
Lord Strathclyde: This new clause, which was inserted at Report stage in the Commons, will prevent unauthorised officials taking advantage of a majority "yes" vote in a ballot to call ad hoc industrial action of their own. Such action might well inhibit negotiations between the union's leaders and the employer which could lead to the resolution of the dispute without industrial action or without further industrial action.
The new legislation will prevent shop stewards taking advantage of ballots on industrial action to organise such action prematurely. It requires unions to specify on the voting paper who will call the strike

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if there is a majority vote in favour. If a strike is then called by someone whose name is not on the voting paper it will be unlawful.
Amendment No. 40 proposes to replace the term "specify" with "state person or descriptions of persons". This would seek to indicate that it is not necessary always to name a specific individual but that the provision can also be satisfied by giving a description; for example, "regional convenors" or "members of the PEC". That is an entirely reasonable requirement with which the Government wholeheartedly concur, which is why provision to achieve that effect is already included at line 14. For the purposes of this clause either form is acceptable. Indeed the description will often be far more practical and convenient.
Having clarified that point I hope that the noble Lord Lord Wedderburn, will be content to withdraw the amendment.
Lord Wedderburn of Charlton: I shall achieve clarity only when I read what the Minister said in Hansard. We believe the reply to be unsatisfactory, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 41:
Page 8, line 25, at end insert:
("For the purposes of this paragraph the union shall not be taken to have made such a call by reason only of a recommendation to members as to how they should vote in the ballot or of making clear to them its reasons for so recommending.").
The noble Lord said: This is a matter of greater substance. In moving Amendment No. 41 I shall speak also to Amendment No. 43 which is an alternative way of ensuring that the union is not put into the position which this relatively recent clause —included, at a late stage, as the Minister said, in another place in the Bill—puts it.
In broad terms, since 1984 the union has been under the obligation to hold a ballot before it authorises or endorses a strike or industrial action. The position is somewhat more complicated and will be simplified by some parts of the new clause. Our concern relates to the new limitation in subsection (3) (a), where it is said that,
"there must have been no call by the trade union to take part or continue to take part in industrial action to which the ballot relates, or any authorisation or endorsement by the union of any such industrial action, before the date of the ballot".
As we understand it, the second half of the paragraph states the law as it is; the first half appears to introduce a new prohibition on what the union can do when it has decided to hold a ballot and in the immediate period before it. In substance our concern is that the words,
"there must have been no call by the trade union to take part or continue to take part in industrial action … before the date of the ballot".
can be widely understood to include the union impliedly calling upon its members to take part in a
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ballot. There are plenty of precedents. The Minister and I have been exchanging correspondence regarding legal precedents on the Bill, I am sure that he is aware of the cases to which I refer where an implied threat to do something has been spelt out of a statement which at first sight appeared not to contain it. That plainly includes express or implied calls.
A union deciding to take a ballot of its members —the relevant members in the dispute—would no doubt look at the code of practice which the Government recently issued on trade union ballots on industrial action. It will not find anything there about the union not being allowed to call on anyone. It will find the statement and some explanation of it that the union must not authorise or endorse the action before the ballot has been held.
It will not be sufficient to say that the code of practice says nothing about prohibiting the union from calling on members to take part. The code of practice is supposed to add the industrial relations context to the law. Indeed, the Government became so muddled about what was and what was not the law that they had to print the sections relating to the law in one colour and the sections of commentary in another colour. There is also nothing in the commentary referring to calling on industrial action.
A Union that says to its members, "Yes, we think there should be a ballot because the employer has been unreasonable in this dispute", is plainly saying to its members in the average case, "We think you should vote yes". If I say to the Minister that he should vote in the "Content" Lobby, surely I am calling upon him to take part in that process which eventually, in my intention, is likely to result in industrial action. If that is not so then the words "no call by the trade union" can have no meaning at all, because it is different from authorisation. It is not authorisation but something less than that. It is not endorsement, of course, because endorsement is of action that has already taken place.
Therefore, what is a call? A union may say to its members —in the real language of industrial disputes it is likely to be a little more blunt—"This employer has been totally unreasonable and negotiations have broken down. We are holding a ballot and we say that for these reasons you should vote 'yes'". We say that a union should be allowed to do that. Indeed, we say more than that in the amendments. We say that there should be no doubt about whether the union should be allowed to do that. The union should be allowed to recommend to its members the way that they vote in the ballot and to set out its reasons for so recommending without any penumbra of doubt as to whether or not that is lawful.
I hope that the Minister will not take the posture that he has sometimes taken in the past of being absolutely sure of what the courts will say on a matter which is plainly in doubt and without any authority. There is a doubt. It is likely that in some such case a court will say that the union was calling on its members while not authorising them. That is not

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reasonable when all that the union is doing is recommending that members vote one way or the other in the ballot.
Finally, no explanation has ever been given in another place as to why the words "no call by the trade union" should be put into the Bill. What is the need for them if it is not to stop a union from encouraging its members to pursue the dispute and to win it? That is what happens in an industrial conflict. It is a pity; we avoid it as much as we can; but once it happens the union is entitled to ask its members to win, just as the employer is entitled to do so on his side. I beg to move.
3.45 p.m.
Lord Campbell of Alloway: With respect to the noble Lord, no new prohibition is introduced. There is no doubt. There is no problem of construction to which he refers. The noble Lord has, so to speak, produced a problem and stood it on its head.
Of course, if you come down to the practicalities of the situation surely it is absolutely plain common sense and what happens in any industrial dispute. The union wants to call for industrial action. It arranges a ballot. It is perfectly entitled to explain to its members why it is calling for industrial action, why it is arranging the ballot and to make such recommendations as it wishes. I can find nothing in any legislation —I will be corrected if I am wrong but I took the trouble to go through it in the Library yesterday—to prohibit a union from doing all those things. Certainly there is nothing in the 1984 Act to inhibit unions from doing that.
Indeed, it is common sense, which marries with common practice in industrial relations, that in any ballot it is lawful to canvass support by explaining reasons or by making recommendations. It is simply not understood how such recommendations to take industrial action with explanatory reasons could be treated as "a call for industrial action" if a ballot is to be held which may or may not support the industrial action.
If a ballot is held the union cannot call industrial action to which the ballot relates—I use those words because the noble Lord is dealing with points of construction—without the support of the ballot. That is why I respectfully suggest that the noble Lord is standing the problem on its head. The only way it can do so is by doing a sort of "Scargill" with the Nottinghamshire miners and ignoring the ballot, treating the balloting process as a sham and pre-empting the situation, which no union would ever consider doing.
There, is no problem. There is no need for this amendment. I hope that my noble friend the Minister will be able to satisfy noble Lords opposite that there is no fear, no doubt and no new prohibition.
Lord Jenkins of Putney: I fear that the Minister will have rather more difficulty in satisfying the Committee of the position than the noble Lord, Lord Campbell of Alloway, thinks. The noble Lord has overlooked the fact that the subsection states:
"there must have been no call by the trade union to take part or continue to take part in industrial action to which the
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ballot relates, or any authorisation or endorsement by the union of any such industrial action, before the date of the ballot".
Consider what actually happens in practice. There is usually a meeting of some sort which calls for industrial action. According to the rule now introduced, and according to practice already followed by a number of trade unions (including the union I know best, the actors' Equity association) a ballot will then take place. The call coming from the local meeting, general meeting, or whatever it is, goes to the executive committee which decides to have a ballot on whether to support the call.
Only one of two things can happen. The executive will either support the strike or will advise against it. However, it has a duty to advise one way or the other. It has a duty to advise against the strike if, in its judgment, the strike is undesirable—perhaps it is a wildcat strike, or something of that sort. However, the executive also has a duty, if in its consideration it believes the strike to be justified, to advise in favour of the strike. That is what happens in practice. Whenever a ballot is conducted by Equity a ballot form is sent out containing two statements. One statement is for whatever course of action is called for and the other is a statement, with exactly the same number of words, against. The members then decide whether they support proposal A or proposal B.
Therefore, it seems to me that, unless the wording is altered or qualified in the way that my noble friend's amendment proposes, the union would be placed in difficult circumstances. The situation is rather more serious than the noble Lord believes. He has not convinced me and I do not think his noble friend on the Front Bench will have any greater success.
Lord Rochester: I too have read subsection (3) (a) as meaning that in future a union would be precluded from lawfully recommending that its members should engage in industrial action. If so, that is a major departure from present practice. Therefore, I hope that the Minister will be able to remove any doubt and assure the Committee that the subsection as it stands is not unnecessarily restrictive.
Lord Campbell of Alloway: Before the noble Lord sits down, if I construed the clause as the noble Lord, Lord Rochester, has construed it, I should not have risen to speak at all.
Lord Monkswell: One of the problems we face is the difference in interpretation of union members considering the situations in front of them and judges considering the situations in front of them. Two completely different groups of people will be looking at problems from two completely different perspectives.
I wish to mention one or two matters. Whether we agree this amendment or not, the reality is that we are damned if we do and damned if we do not. We are in a Catch-22 situation. Clause 7(3) (a) of the Bill effectively says that a trade union cannot advise its members what the consequences of their votes may be, yet on every ballot paper the consequences from the point of view of the employers are spelt out very clearly. Effectively, if you vote "yes" you are liable to

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get the sack. However, it does not say on the ballot paper that if you vote "yes" your trade union will support you. That is effectively illegal. That is the crucial matter that the trade union members wish to know. In that respect we are talking about a non-provision.
The other side of the matter is the way in which the judges will interpret the issue. They may interpret the clause that we have in front of us by saying that anything said by a trade union in terms of a recommendation to vote one way or the other will be construed as an inducement or an authorisation of the strike. If we agree to the amendment, that defines some form of words which a judge may interpret less restrictively. Some judges may interpret subsection 3(a) restrictively and others will do so loosely.
The problem with the amendment is that it constrains the interpretation that the judges put on it. As I have said before, we are damned if we do and we are damned if we do not accept this amendment. The problem is the thrust of the Bill as it stands. I do not think that we can amend it to make any difference to it. It actually constructs unfairness in the ballot situation. The Bill states what the penalties will be but not what the benefits will be on the outcome of the ballot. It is really an impossible situation.
Lord Strathclyde: I very much welcome the words of my noble friend Lord Campbell of Alloway. When he asks me whether or not I will be able to convince Members of the Committee opposite of the correctness of this particular clause I admit I have my doubts. My track record on these issues is not particularly great. However, I realise that the noble Lord, Lord Rochester, has a far more open mind on such matters.
I appreciate the concern of the noble Lord, Lord Wedderburn, that a union should not be prevented from making a recommendation to its members about how to vote in a properly-conducted ballot on industrial action. However, I am delighted to be able to assure him that the provisions of Clause 7 in no way limit a union's freedom to do exactly this. It follows of course that these particular amendments are in fact unnecessary. The provisions in Clause 7 which require there to have been no call by the union to take action before a ballot do no more than restate requirements in the present law to take account of the substantive new requirements proposed by subsections (1) and (2) of the clause.
The noble Lord appears to assume—incorrectly —that holding a ballot or recommending that votes in a ballot should be cast in favour of the relevant proposition is the same thing as calling for industrial action. That, however, is simply not the case in law or in practice. There is simply no basis for the suggestion that the present law, or the law as it will stand as amended by the new clause, prevents unions from balloting their members on industrial action which it would be lawful for the union to organise, or from recommending that they should vote in a certain way in any such ballot. There are no decided cases which show anything to the contrary.
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The very fact that the law requires ballots before industrial action—allowing unions to recommend a yes vote if they so wish—and deals separately with calls for industrial action, is a clear indication that a recommendation to vote for industrial action is not a call to take such action. In practical terms therefore the distinction between holding a ballot and calling industrial action is obvious enough. There are numerous cases of unions conducting ballots on industrial action which were not followed by any actual call by the union to take action. The Government have absolute confidence that the courts have not in the past, and will not in the future, confuse the two activities of holding a ballot and calling for industrial action. In the light of that assurance, I hope the noble Lord, Lord Wedderburn, will feel able to withdraw his amendment.
Lord Wedderburn of Charlton: I must say that, as the debate went on—subject to the helpful interventions of my noble friends—it became more and more difficult to withdraw this amendment. All I am asking for is clarity. If the Minister is right that a call cannot possibly include a mere recommendation, why is he resisting this amendment? That is all the amendment says. The Minister says that it is not possible ever for that to be so. If I wanted to get an opinion on that matter I would pay a lot of money and obtain it from the Temple. However, it may be proved to be wrong the next day in the Strand.
The Minister overlooks a most important point in the argument. It is not the point that the noble Lord, Lord Campbell, put to me. He went wide into the subject of the National Union of Mineworkers and so forth. He put a central point by saying that the phrase in the Bill,
"no call by the trade union"
is not a new phrase. If the noble Lord can point to the section, paragraph or schedule where it has appeared before I shall defer to him. I say that it is a new phrase as do the Government. They have put it in a new subsection. The Government say that the words used have a different meaning from the word "authorise". I place some stress on that matter. If an extra word is needed other than "authorise", then the matter is at a different level. I hope that the Minister will think about this before Report stage and give us an indication that something similar to these amendments can be considered again.
The Minister has overlooked the fact that these legal questions are not decided on full trial. The plaintiff or applicant for an injunction does not have to prove his case according to the normal levels of proof. He has to show that there is a serious question that something is the case and that that something is arguable. I shall come to that matter again. If the Minister is telling me—especially after hearing my noble friend Lord Jenkins—that there can never be a case in which it is arguable that a particular recommendation or statement from the executive in calling a ballot cannot be said to be impliedly inclusive of a call, then I believe that he is taking on himself a burden of proof which very few of us would wish to have.

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There may be such cases and our amendments deal with them. The Minister does not disagree with the amendments and merely says that they are unnecessary. I trust that he will consult with his advisers. I hope that he will not put on the statute book something which will be understood—and which case law will show to be so either in small compass or in large—as a new limitation on the liberty of industrial action in this country. Without these amendments that is clearly what the new clause is capable of doing. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Strathmore and Kinghorne: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Economic Summit, Houston
3.58 p.m.
The Lord Privy Seal (Lord Belstead): My Lords, with the leave of the House I shall repeat a Statement being made in another place by my right honourable friend the Prime Minister about the economic summit held in Houston from 9th to 11th July, which she attended with my right honourable friends the Foreign Secretary and the Chancellor of the Exchequer. The Statement is as follows:
"With permission, Mr. Speaker, I will make a statement on the economic summit held in Houston from 9th to 11th July, which I attended with my right honourable friends the Foreign Secretary and the Chancellor of the Exchequer. The communique and the separate political declarations issued at the summit have been placed in the Library of the House. Our discussions ranged widely, and we achieved important, practical results which meet the needs of the times. Great credit for this is due to President Bush for his firm and friendly chairmanship.
"I shall summarise the main points of our discussion, under seven broad headings. They are: the world economy, international trade, assistance to the Soviet Union and Eastern Europe, developing countries, the environment, drugs, and political issues.
"First, the world economy. Economic expansion is now in its eighth year in our countries, with notable growth both in incomes and in the number of new jobs.
"We ascribed this excellent record to sound budgetary and economic policies. These should continue if economic expansion is to be sustained.
"Much emphasis was placed on the need for more saving, at a time when the investment needs of the world are expected to grow in Central and Eastern Europe and in the developing countries.
"I reaffirmed Britain's determination to get down inflation as our first priority, and our intention to join the exchange rate mechanism.
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"Secondly, international trade. In my opening remarks, I stressed that the touchstone of success at the summit would be our attitude to the continued freeing up of world trade. I am glad to report we reached agreement which should make possible a successful conclusion to the Uruguay Round of world trade negotiations later this year.
"The main difficulty lies in the subsidies and other forms of support and protection which virtually all major countries give to their agriculture. We agreed in Houston that we should each make substantial, progressive reductions in our agricultural support programmes. This will cover internal support barriers to market access and export subsidies.
"To subsidise inefficient producers to keep them in business is unfair to those who are competitive. The outcome should therefore be to the advantage of British farmers, who are among the most efficient in Europe.
"I believe that the result will also be very welcome in other countries, including the developing countries, and will open the way to resolving the remaining problems in the GATT negotiations.
"Most importantly, it will give a clear signal that we are determined to go on with the liberalisation of world trade, which has contributed so much to growth and prosperity. That was the most encouraging message from this summit.
"Thirdly, we discussed assistance to the Soviet Union. We all recognised the Soviet Union's need for technical assistance and know-how. Indeed, many of us are already providing management training, for instance. But help from the Summit Seven as a group should be tied to introduction of genuine market policies and to encouraging the Soviet Union to mobilise its own extensive resources. We also pointed to the need for the Soviet Union to shift resources away from the military sector and to cut its support to nations which promote regional conflict. It is not our purpose to provide an oxygen tent for survival of much of the old system.
"For that reason, we agreed that there should be a thorough study of the problems and needs of the Soviet economy, and of the criteria for assistance, led by the International Monetary Fund which has the greatest expertise in this area. Other organisations will be involved and the Commission will be closely consulted. Their report should be completed by the end of this year. Thus we can ensure that any help we give will be properly targeted and effective.
"Fourthly, developing countries. We noted that the best help we can give the developing countries is to sustain our own economic growth and keep our markets open.
"We welcomed the growing acceptance in many developing countries themselves that the best way to growth is through market-oriented policies, openness to foreign investment, and sound, democratic Government.

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"We reaffirmed our support for the case-by-case debt strategy: and agreed to support longer repayment periods for lower middle-income countries, which are implementing strong reform programmes.
"Fifthly, the environment. Here we acknowledged that there is still some uncertainty about how much global warming is due to natural causes and how much to man-made causes. But the threat of irreversible environmental damage required us to take actions which are justified in their own right.
"We all want the World Climate Conference in November to consider the best ways to stabilise greenhouse gas emissions. This would lead on to the negotiation of a framework convention on climate change by 1992, under the auspices of the UN Environment Programme.
"We welcomed the decisions at the recent London meeting to phase out chlorofluorocarbons by the year 2000 and to provide financial assistance to the developing countries, to enable them to meet their obligations. We also attach particular importance to action to save tropical forests.
"I believe, as a result of this summit, there is now a much better understanding and sense of common purpose among the G7 countries on environmental issues. This is vital if we are to tackle these problems effectively.
"Sixthly, drugs. On this we underlined once more the crucial importance of international co-operation in every aspect of tackling the drugs problem: production, demand, trafficking and money-laundering.
"We pledged our support to the countries engaged most directly in the fight against drug trafficking. And we agreed to set up a special task force to ensure that precursor and other essential chemicals are not diverted to the manufacture of illicit drugs.
"The summit discussed some of the principal international political issues, and agreed statements on securing democracy, on terrorism and on the growing problem of proliferation in nuclear and other fields.
"We acknowledged some recent progress in China, and said we would be ready to relax measures in response to further positive steps towards political and economic reform. We also called on all parties in South Africa to refrain from violence or its advocacy.
"Finally, I invited other heads of government to meet in London for a further summit next July. The great achievement of these summits has been to make it easier for all of us to reject short-term soft options in favour of longer-term real solutions; in favour in particular of: sound economic policies; freer competition; keeping our markets open; identifying new problems, such as drugs and the environment at an early stage; and tackling them
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by co-operation. The world looks to these summits for a lead, and I believe that the G7 countries have once again provided just that, particularly on trade.
"Last week's very successful NATO summit in London was an important step towards a safer and more peaceful world. Our meeting in Houston takes us towards a more prosperous world for everyone."
My Lords, that concludes the Statement.
4.7 p.m.
Lord Williams of Elvel: My Lords, the House will be grateful to the noble Lord, the Lord Privy Seal, for repeating the Statement made by the Prime Minister in another place. I should say in passing that we would have welcomed a similar Statement on the London NATO summit which was covered in the last paragraph of the Prime Minister's Statement. We believe that that summit was one of historic importance, whereas the Houston G7 summit would certainly not in our view qualify for that particular description. Nevertheless, there is much to be welcomed in the Statement and in the communiqué, especially as regards drugs. We support any measures that all governments can take to combat the drug menace. We also welcome any steps which can be taken internationally.
We agree that international trade and the Uruguay Round are of fundamental importance to the future of the world economy and that agricultural subsidies tend to restrict that trade and indeed form a substantial barrier to a successful conclusion of the Uruguay Round. Therefore, we shall support any reasonable measures which can be taken to reduce subsidies. However, can the noble Lord tell us what precise measures the Government have in mind in this connection and whether they will protect marginal upland farms which, alas, are not as efficient as some of our other farms and do not qualify, in the words of the Statement, as being,
"among the most efficient in Europe"?
Indeed, there are serious rural problems which have to be met.
As regards the world economy, we agree with the Government that emphasis should be placed upon the need for more saving. However, is it not the case that the decline in the savings ratio has been due to the world consumer boom—that is, the consumer boom in the industrialised world—and that that boom has been precisely the result of government policies? That is especially true in the United Kingdom where equity has been released from the housing sector. How do the Government intend to meet the emphasis that the G7 summit put on the need for more saving when in the past they have been discouraging saving?
Again, we note that the determination to reduce inflation is the Government's first priority and, in passing, I ask the noble Lord: is it not true that it was the Government themselves who put up inflation? Fine, let us get it down again. We note also our intention to join the ERM. Will the noble Lord assure the House that the Prime Minister has a united Cabinet behind her on that issue? After all, following

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certain remarks reported in the Spectator magazine, it is difficult to believe that the Cabinet is wholly united behind the Prime Minister in her approach to Europe.
I turn to international trade. I have already dealt with the agricultural subsidy problem. There is of course problem of protectionism in other sectors. During the summit discussions were other forms of sectoral protectionist measures such as textiles in the United States —if I may raise one rather contentious issue—taken into account, and, if so, what view was taken?
The Statement deals with assistance to the Soviet Union. It is a curious approach to send in the IMF to make a study of the Soviet economy and not to recognise that economic aid is fundamental to bringing the Soviet Union where we in the West would like it to be. Is it not the case, as a result of the summit, that Germany, France and Italy are prepared to offer assistance to the Soviet economy even now, whereas we in this country and, as I understand it, the United States, will wait for the results of the IMF study? Is there not an illogicality there?
I move on to the developing countries. Is it not odd that the Statement is made on the same day as the OECD has published a study which says that there will be greater competition in the third world for funds from the developed world and that the competition for the existing savings of the industrialised world will be much greater given developments in Eastern Europe and the continuing requirements of the developing countries? That is a point where we feel that the summit has not given a fair lead to the industrialised world. I should be grateful if the noble Lord would comment on that issue and describe what measures the Government are undertaking to combat the OECD conclusion.
On the environment, does the noble Lord accept that we find that section of the Statement fundamentally disappointing? No serious targets have been set. There will be pilot projects. There are pious statements about forestry and various well-meaning assertions of belief but the Statement is not very strong. Why did the summit reject the idea of having targets for environmental projects such as carbon dioxide emissions? Why are we merely talking about framework? Is that a lack of political will? If the reference to the environment in the Statement is disappointing, the reference to drugs, as I said, is welcome. We shall support it.
I welcome the less self-congratulatory nature of the Statement compared with the communiqué. I hope that the noble Lord the Lord Privy Seal will agree with me when I say that, in the House and elsewhere, we must be careful about how far we crow over what is happening in Eastern Europe. Those eminently desirable developments need to be encouraged, not merely cheered on with some form of triumphalism.
In conclusion, perhaps I may again thank the noble Lord and say that we generally support what G7 has done. But we do not regard the summit as nearly as consequential as the London NATO summit.
Lord Jenkins of Hillhead: My Lords, as someone who attended an early three and half summits of this series of 16 Group of Seven summits, perhaps I may thank the Leader of the House for having repeated the Statement. Three and a half is of course a puny record compared with the Prime Minister's record of attending 12 of the 16. The reason for the half, as some noble Lords with long memories may recollect, is that I had a little difficulty in getting into the first of the four.
The Statement is inevitably rather bland, as was the communiqué. The Statement was, in some ways perhaps, a little less bland, as the noble Lord, Lord Williams, said. I do not complain unduly about that. To my mind the purpose of the summits is not so much to reach hard decisions, which is expecting rather a lot, but to open temporarily the minds of those participating to the problems of their fellow world leaders and to a rather wider perspective than can sometimes be the case.
I welcome the fact that the Prime Minister seems to have played a somewhat more bland and emollient role than at some recent summits, both European and world. I raise two detailed points. One is on blandness; the other the reverse.
The Statement, referring to the past eight years' performance, says:
"We ascribed this excellent record to sound budgetary and economic policies".
As the United States constitutes between 35 per cent. and 40 per cent. of the national income of the assembled countries, did the seven leaders seriously congratulate the United States on its budgetary policies over the past eight years? It would have been remarkable if they did. It would be straining blandness a little beyond the normal meaning even of that elastic word.
The Prime Minister said:
"In my opening remarks, I stressed that the touchstone of success at the summit would be our attitude to the continued freeing up of world trade".
Will the Leader of the House inform us what purpose, style or meaning the insertion of the word "up" in that sentence conceivably serves? Will he tell us whether he noted that I congratulated, and I do so generally, the Prime Minister on having a more emollient attitude at the summit? Does he think that the sour hysteria of Mr. Ridley's effusion in the Spectator helps the Prime Minister to have better relations with her colleagues, not just with Chancellor Kohl but with Presidents Bush and Mitterrand, who have such a markedly different approach to the general issue? I understand that Mr. Ridley has withdrawn, he says unreservedly. Normally, I am in favour of accepting apologies, but will the Leader of the House tell us whether that withdrawal means that he did not have the thoughts, did not use the words in which they were expressed, or merely that he wishes that they had not caused such a furore?
Lord Belstead: My Lords, I am grateful to both noble Lords for responding to the Statement which my right honourable friend has made in another place. The noble Lord, Lord Williams, expressed regret that

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a Statement on NATO was not repeated. That was for the simple reason that there has not been a Statement on NATO today. Some NATO matters may be discussed while the Statement is being made at the other end of the passage, but my understanding is that no such Statement is being made today.
Lord Williams of Elvel: My Lords—
Lord Belstead: My Lords, I could not add anything else if the noble Lord challenged me. I am merely telling him that.
Lord Williams of Elvel: My Lords, let me make it clear, because I must have been wholly unclear. I was not saying that there was a Statement today which is not being repeated here; I was saying that there was no Statement today, and that I was rather disappointed.
Lord Belstead: My Lords, I am sorry. I misunderstood the point. There we are.
Although the noble Lord, Lord Williams, asked many quite penetrating questions, he was uncharacteristically less than generous about what the summit has achieved. I am grateful to the noble Lord, Lord Jenkins, for making the point that in a sense the ball has been pushed in the right direction by the summit. The G7 summit is not the place for detailed trade negotiations, but there is no doubt that it has given a strong political push to the Uruguay Round whose success is vital to our prosperity. Now come the hard political decisions that must be taken by the countries concerned in the Uruguay Round. We shall have to see where we go.
The noble Lord, Lord Williams, asked me for undertakings on agriculture and he quite rightly pointed out that those who are less advantaged in the agricultural system in this country need assurances. I can do no better than to quote from the relevant paragraph in the communiqué:
"The negotiations on agriculture should therefore be conducted in a framework that includes a common instrument of measurement [and] provides for commitments to be made in an equitable way among all countries".
Obviously it will now be up to the common agricultural policy countries how they interpret those words. I hope that the noble Lord will feel, as I do, that the words are sensible and fair and should not give us cause for alarm in the context in which the question was asked.
The noble Lord asked how, in this country, we would encourage more saving. I rest on saying that the Budget was a good move in that direction. He also asked whether the Government were entirely united in their approach to the exchange rate mechanism, as mentioned in the Statement. The answer is a resounding yes. He asked me whether textiles were dealt with. They are mentioned in the Statement, together with other commodities. However, we are now in a situation where, particularly as a result of the agreement on agricultural matters at Houston, work can go on speedily over the next few weeks in order to prepare for the trade negotiations that will take place in Geneva over the succeeding five months. Included in the negotiations will be textiles.
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The noble Lord, Lord Williams, asked me a question which I thought was absolutely fair and required me to give an answer. It was whether the Federal Republic of Germany, France and Italy now intend to offer aid to the Soviet Union; the British Government do not and will simply await the outcome of the study. It is important that I make the point that technical assistance and know-how can be provided now. We led the way with our aid to Eastern Europe and the know-how fund which we started. The outcome of the G7 summit regarding the USSR is to give encouragement and precisely what the Soviet Union needs.
A central point is that not only are the matters that I have just mentioned underscored but so is the need for the Soviet Union to modernise its own resources. The two achievements regarding the Soviet Union at Houston were, first, that there was agreement on the objective of tying aid to achieve genuine market-oriented policies. Secondly, the crux of the joint agreement was that the IMF was to lead the study, in consultation with the European Commission.
The noble Lord, Lord Williams, asked me about the OECD conclusions in the context of the developing countries. In cash terms we have an increasing aid programme but it is important to make the point that that does not count the aid which we are suddenly finding as a result of the earth-shaking events that have occurred in countries of Eastern Europe.
Finally, the noble Lord asked why targets were not set on environmental matters. It is important to note from the communiqué the G7 agreed strategies which it said would lead to a framework convention and protocols. Protocols are mentioned explicitly in paragraph 63 of the communiqué, showing that the G7 countries agreed that they would get down to business.
I do not believe that there are any other matters to which I should reply. I noted what the noble Lord, Lord Jenkins, said about the remarks of my right honourable friend in another place, the Secretary of State for Trade and Industry. I have nothing to add to what he said.
4.28 p.m.
Lord Boyd-Carpenter: My Lords, I am sure that my noble friend is aware that many people, both in your Lordships' House and outside, wish to congratulate the Prime Minister on her great success at this conference in achieving a decision to reduce the degree of protectionism in world trade, particularly agriculture.
Can my noble friend indicate whether the likely sequel to this is for the European Community to propose for the coming year a reduction in agricultural support and also in interference with agricultural imports from other parts of the world? Perhaps my noble friend could underline the importance of this. Will he give your Lordships an indication of the total current cost to the Community of the common agricultural policy? I hope that he will also be able to indicate that it is now accepted that the degree of protection and subsidy under this policy

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must be reduced. Perhaps he could indicate the amount of financial saving likely to accrue to this country by way of reduction in our contributions to the Community.
On the point raised by the noble Lord, Lord Williams of Elvel, about aid for the USSR, is my noble friend aware that many of us take the view that to give financial aid as opposed to advice to the USSR is a mockery? That country still spends a far larger proportion of its gross national product on military preparations than any other major country in the world and to give financial aid in those circumstances would seem to be something of a mockery. Perhaps my noble friend could indicate that Her Majesty's Government will not contemplate financial aid to the Soviet Union until that country puts its own house in order by diverting to civil development a great deal of the money which it at present applies to military preparations, for whatever purpose one does not know.
Lord Belstead: My Lords, I am grateful to my noble friend Lord Boyd-Carpenter for his remarks and for the congratulations which he has given to my right honourable friend the Prime Minister on being an important party to the agreement for further reduction of protectionism. That also concerns agriculture.
My noble friend asked me detailed questions about agricultural support. He asked whether the reduction in agricultural support would also mean no further interference with imports. The answer is that fairly recently the chairman of the agricultural negotiating group of the Uruguay Round in Geneva, Mr. de Zeeuw, gave a report which is specifically mentioned in the communiqué. The de Zeeuw Report said that the negotiations which would take place in the second half of this year must concentrate upon market access, export subsidies as well as internal support. My noble friend can be assured that the answer to the question he asked me is yes. I am sorry that I do not have at my fingertips the information on the percentage of the Community budget that is devoted to the CAP. However, despite the use of stabilisers, it is still pretty large. I would be rash if I attempted to suggest what savings will be achieved. I come back to the point that I sought to make in answer to the noble Lord, Lord Williams, which is that it is agreed in the communiqué that commitments should be made in an equitable way among all countries to try to achieve what has been agreed. It is important that I repeat to the noble Lord, Lord Boyd-Carpenter, that it has been agreed that there will be substantial and progressive reductions in support for agriculture.
As regards help to the Soviet Union, the Government entirely agree with my noble friend that it must be right that the principle of conditionality should rule in deciding how and what support to give to the Soviet Union. The fundamental point is that the Soviet Union must take radical steps towards a market oriented economy and it must shift resources away from the military sector. My noble friend made
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that point. As regards giving the absolute undertaking that my noble friend asked for, we must now await the IMF report. We expect it at the end of the year.
Lord Diamond: My Lords, there is a great deal in the Statement for which we can be grateful. I welcome much of what has been said. I believe this meeting was successful, but it also underlines the value of continuing meetings of this kind where heads of state are prepared to discuss their different points of view on world matters with one another. That is a healthy development and should be continued. The comments in the communiqué on international trade are encouraging and very welcome. Apart from a number of minor points, including the question which the noble Lord, Lord Jenkins of Hillhead, asked and to which he did not receive a reply—I would have asked the question had he not asked it—namely, what additional significance is to be attached to the word "up" in the term "freeing up" something or other, there is one major matter on which I am uneasy.
I do not share the view which has been expressed that we should give the kind of signal to the Soviet Union which the wording of this communiqué has given. A signal has been given that we are not prepared to help or to consider giving help until our detailed political requirements have been satisfied on a number of matters affecting the internal policy of the Soviet Union. To my mind the communiqué does not give the impression that we are willing to help or that we realise that in order to overcome many of the Soviet Union's difficulties economic help of one kind or another is essential. It gives the impression that we are not at all anxious to help and that we are using this occasion to squeeze the Soviet Union and its leader and to compel it to adopt policies hurriedly which we ourselves would not adopt hurriedly. We are not hurrying to reduce our military budget over the next six months as far as I am aware. We are taking a much longer view on that matter.
It is unfortunate that in the wording of the communiqué we have gone far beyond what I thought was intended; namely, to give every encouragement to the President of the USSR and to make it absolutely clear that we are prepared to give unstinting help to enable that country to turn around.
Lord Belstead: My Lords, the Government have great sympathy with what the noble Lord, Lord Diamond, has just referred to. However, it is worth recording that Mr. Gorbachev wrote letters both to President Bush and to the Prime Minister before the G7 summit began. I interpret the reply to Mr. Gorbachev, as a result of the G7 summit, as a positive one. The emphasis was on technical assistance and know-how, which is precisely what the Soviet Union needs. However, the essential point is that we intend to help the Soviet Union to mobilise its own resources. There is a clear paragraph in the declaration on the decisions that the Soviet Union needs to take to improve its own prospects and to shift resources away from the military sector.
I would say to the noble Lord and to the noble Lord, Lord Jenkins of Hillhead, that the term "freeing

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up" is rather a loose expression. If I may dare to suggest an improvement to the Statement, perhaps the word "liberalise" might have been a little better.
Lord Beloff: My Lords, on the point about the IMF, are we to understand that the Soviet Union will co-operate in this inquiry? It is one thing to send the IMF to look at some developing country of small size and limited resources, but to expect a report on the economic affairs of nearly 300 million people is quite another and could only be done with the active co-operation of the Soviet Union. Has that co-operation been sought and given?
Lord Belstead: My Lords, there is nothing that I have heard which could possibly lead me to give a negative response to my noble friend. If I am wrong about that, I would immediately write to my noble friend and place a copy of the letter in the Library. I should add that at the Dublin summit the 12 Community nations agreed that they themselves would undertake a study which would be led by the Commission. We are obviously in close touch with the Soviet Union and it was put on notice, as it were. As far as I am aware, the Soviet Union was positive in its attitude to that measure. In a sense there will be two studies running in parallel. I do not believe that that will cause any problems, but everyone must ensure that the work comes together towards the end so that coherent conclusions can be studied by both the countries of the G7 summit and of the Community with the well-being of the Soviet Union in mind.
Lord John-Mackie: My Lords, I wonder how many of your Lordships—I think the noble Baroness, Lady Elliot, would be one—remember the last time that subsidies were withdrawn from agriculture. That occurred in 1923 when the help that was given to produce more food from 1916 onwards was withdrawn in full. From 1926 to 1934 or 1935 there was one of the most appalling agricultural depressions that this country has ever experienced. Something like 5 million acres of land went out of production. When the last war started, an enormously expensive programme had to be initiated to return that land to agricultural production. I wish to warn noble Lords of what can happen in such circumstances. I started farming in 1926 and I can speak feelingly about the agricultural depression. I came through it. I remember the low wages that were paid to workers in agriculture and the poverty that existed in the countryside. The noble Lord said that there would be an equitable framework to ensure that the agreement worked fairly. I hope that it will work this time because it certainly did not work in 1923.
Lord Belstead: My Lords, the noble Lord, Lord John-Mackie, has almost unrivalled experience on this matter. However, the mechanism of the agreement is that all the seven countries that are signatories to the agreement—the European Commission was represented at Houston too—should agree to a progressive reduction of the huge subsidies which exist in all countries as regards agricultural production. One of the prizes for that is that the communiqué contains extremely positive language as regards using
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multilateral rules to prevent imports coming into the countries concerned. The noble Lord will remember that the United States has taken unilateral action from time to time in order to prevent imports. That has not been a good thing as regards exports of foodstuffs from the European Community. The position will change and one of the reasons why it will change is that we have an agreement on the direction in which subsidies for agricultural production should go.
Lord Ezra: My Lords, does the noble Lord recall that in recent years there has been more than one occasion on which relations between the European Community on the one hand and the United States on the other on matters of trade policy have been somewhat strained? Would he say that as a result of the recent summit relations are now improved?
Lord Belstead: My Lords, my answer is most certainly yes. I believe that it has been a most successful summit. There is no question but that as a result of what happened at Houston it is now possible for those who have the job over the next three weeks of deciding on the framework for the further negotiations on the 15 different areas on which the Uruguay round of GATT negotiations will concentrate to go ahead and set that framework. Then, over the next five months the final negotiations will take place.
Lord Hatch of Lusby: My Lords, I should like to ask the noble Lord two questions, both of them echoing a point which my noble friend Lord Williams introduced but which was not really answered. First, why did the noble Lord the Leader of the House use the word "cash" in relation to the provision of aid to developing countries and when responding to the question concerning the OECD figures? Why did he not give the real change in overseas aid rather than the cash terms?
Secondly, on the environment, there is a paragraph in Section 5 of the communiqué which seems to fudge the issue of global warming. It appears to be a reflection of the opinions of one section of the White House staff and contrary to the opinions of President Bush's environment minister. Has the conference followed the opinions of Mr. Sununu rather than those of Mr. Reilly? Is it not the case that the West Germans were anxious to fix targets and that when the communiqué talks of stabilising emissions that means that the situation is bound to get worse whereas the West Germans have already pledged themselves to reduce emissions by 25 per cent.? Why did the British Government not support Germany at the conference in Houston?
Lord Belstead: My Lords, I realise that the noble Lord has strong and expert views on the aid programme. I mentioned cash because that was the figure that was in my mind. There is to be a fairly significant cash increase in the United Kingdom's aid programme over the next couple of years. We are planning an aid programme of £1,750 million by 1992–23 compared with £1,500 million last year. I repeat that the upward cash figure is in addition to considerable resources which I am very glad to say are

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now being devoted to the countries of Eastern Europe. We also have to keep an eye on what the IMF will recommend regarding the Soviet Union.
To reply briefly to the question on global warming, I cannot add to what I said earlier. It is important that protocols are specifically mentioned in the communiqué because that shows that everyone plans to get down to serious work. We have undertaken to stabilise: our CO2 emissions by the year 2005 because that is a target that we believe we can hit.
Lord Stoddart of Swindon: My Lords, perhaps I may ask the noble Lord the Leader of the House a couple of quick questions. The first relates to the common agricultural policy. Can he make it absolutely clear that what has been agreed is that the subsidisation of over-production and of dumping on the world markets is to be phased out by the European Community? If that is so, how soon can we expect a reduction in the £16 extra per week that every family is paying as a result of those subsidies, to which the Prime Minister referred?
Secondly, in relation to ERM, is the noble Lord the Leader of the House aware that I find it rather strange that the Prime Minister, who is a free marketeer, wishes to tie this country into a fixed exchange rate? That is tantamount to going back to the Gold Standard and will have a detrimental effect on the expansion of our economy. Does she really mean that she wants to join a system of free-floating exchange rates? Does she still believe that she can go to a conference at a weekend and agree that the pound should be devalued or revalued?
Finally, in relation to the remarks made by Mr. Ridley, will the noble Lord ensure that the jackboot tendency in the Tory Party does not stop free speech within it?
Lord Belstead: My Lords, the noble Lord asked me whether the subsidisation of agriculture—and he mentioned two particular areas—was now to be phased out. The wording used is "progressive and substantial reductions". The noble Lord asked whether that would be reflected in the amount of subsidy which it could be said that each family in the country has to provide. The answer is that a great deal depends on the negotiations to which the G7 summit has opened the way and which will take place during the last five months of this year.
If the noble Lord will not think me discourteous, having heard about half a dozen ERM questions over the last three weeks or so I shall say simply that the undertaking in the Statement by my right honourable friend the Prime Minister is that our intention is to join the ERM. As the noble Lord knows, that will be when the Madrid conditions are fulfilled.

Employment Bill
4.56 p.m.
House again in Committee on Clause 7.
Lord Strathclyde Lord Strathclyde moved Amendment No. 41A:
Page 8, leave out lines 28 and 29 and insert ("ballot ceases to be effective in accordance with section (Period after which ballot ceases to be effective) below.").
The noble Lord said: Amendment No. 41A results from the debates in both the last Session and in the present Session on Bills presented by my noble friend Lord Campbell of Alloway. The Government are sincerely grateful to my noble friend for raising the issues and to noble Lords in general for the helpful contributions made during the debates on the Bills.
It was pointed out during debates on those Bills that if a union was prevented from first calling for industrial action during that four-week period because of an injunction or court proceedings, it would have to re-ballot its members in order to have protection against proceedings for organising the action. The need to hold a re-ballot would apply even if the injunction was eventually lifted or the proceedings ended without the award of an injunction against the union. As I made clear throughout the debates on my noble friend's Bills, and as was also made clear when the matter was discussed during the passage of this Bill in another place, the Government have kept this under review. In particular, we recognised the clear strength of feeling that was apparent from the debates in this Chamber. In addition, we believed that it was right to question whether a union should always, as a matter of course, have to re-ballot in these circumstances.
There was also a further very important principle that we are convinced has to be preserved. Simply expressed, it can be stated as follows: A union should not be allowed to first call for industrial action to which a properly conducted ballot relates more than four weeks after the date of that ballot if it cannot be assumed that the ballot continues to represent the views of relevant members.
The amendment does not allow extension of the four-week period if that would allow a union to first call for industrial action more than 12 weeks after the date of the ballot, if a union does not apply to the appropriate court for an extension or if it fails to do so forthwith after the prohibition which prevented it from first calling for action during the four-week period or applies later than eight weeks after the date of the ballot.
Furthermore a court may not grant an extension if it appears to the court that the result of the ballot no longer represents the views of the union members concerned, or it appears to the court that an event is likely to occur as a result of which those members would vote against industrial action if another ballot were to be held.
The first two exceptions ensure that an undue time cannot in any circumstances elapse between the date of a ballot and the union's first call to take industrial action to which the ballot relates. The second two exceptions preserve the key principle that a union

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should not be allowed to first call for industrial action more than four weeks after the date of the ballot, if it is reasonable to assume that the ballot no longer represents the views of relevant members. This key principle was identified in your Lordships' debates on my noble friend's Bill, and when the matter was raised at the Commons Committee stage of the current Bill.
Other provisions of the new clause are needed to ensure that the arrangements which will apply are otherwise satisfactory. Therefore the application for an extension must be made for the whole of the period of the four weeks following the date of the ballot during which the union was prohibited from calling for industrial action, and the period between the application and the decision of the court in response is not to count against the possible extension that the court might award.
In summary, the new clause recognises that in certain specific circumstances it may be right to allow a union the privilege of not having to reballot its members, even if it first calls for the industrial action to which a ballot relates more than four weeks after the date of a ballot.
The Opposition have placed their own amendment on the Marshalled List, and I know that that amendment was put down well before the Government's amendment was produced. Therefore I hope that, in the light of what I have said, noble Lords opposite will be able to withdraw their amendment and agree to this amendment which goes a long way towards the kind of understanding that we have built up during the course of the Bill of my noble friend Lord Campbell of Alloway. I beg to move.
Baroness Turner of Camden: I rise to thank the noble Lord the Minister for the amendment that he has just moved and for the way in which he has moved it. As he rightly said, we had put down our own amendment some time before we saw the text of the Government's amendment. As noble Lords will recall, the reason for this, and indeed the whole argument, was the dock dispute which took place last year when the Transport and General Workers' Union sought to maintain its national negotiating role in the wake of the cessation of the dock labour scheme. The union conducted a ballot which was in favour of dispute action, the ballot had been conducted in accordance with the legislative requirements, but the employers commenced a series of court actions in an endeavour to prevent the union from pursuing this course. All the court actions failed, but the time taken entirely absorbed the four-week period during which the union had to implement the ballot decision, so there had to be a fresh ballot. As a result, a lot of the impetus was lost and the union was quite plainly put at a disadvantage.
The noble Lord, Lord Campbell, and many other noble Lords clearly thought that this was not what had originally been intended in the legislation, and the noble Lord, Lord Campbell, introduced his Bill. Indeed, he introduced two Bills, the last of which was
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successfully piloted through your Lordships' House, which proposed that in such circumstances the court be given discretion to extend the four-week time limit.
At that time the Government opposed the Bill on the grounds, among others, that this was a one-off event which was not likely to recur. Other noble and learned Lords, however, indicated that in their experience it could well happen again, and it was only right and proper to do something about it. It was felt that otherwise a blatant injustice to the trade union side in any dispute would be perpetuated.
Now we have the government amendment moved by the noble Lord. As I said earlier, I am very grateful that it has been put down. I am particularly grateful to the noble Lord, Lord Campbell of Alloway, whose persistence with his Bills has resulted in our having this amendment before us today. Indeed, it may well become known in history as the Campbell amendment.
I should also like to thank the Minister because he clearly has changed his mind since the Bills were before this House. I applaud his courage in so doing and I am very glad that we now have this amendment before us. In the circumstances, I do not propose to move my amendment and will support the Government's amendment.
Lord Campbell of Alloway: Perhaps I may say a word of gratitude to noble Lords on the Benches opposite, particularly to the noble Baroness for the kind words she has said which are very much appreciated. I am also grateful to the Minister for having accepted that there is a problem of manifest injustice to trades unions and their members which simply had to be resolved. I also thank my noble friend for introducing amendments to this Bill as a most satisfactory means of resolution.
As to the Opposition's amendment, to which the noble Baroness has just spoken, my name appears on that amendment and I was privileged to put it there. But may I beg leave to say that once I had seen the Government's amendment, I realised that I could no longer support the Opposition's amendment to which my name appears, because the Government's amendment deals more effectively with the essence of the problem.
It is curious that the way in which the Government have dealt with it is much nearer to the philosophy of the noble Lord, Lord McCarthy, (who I am glad to see in his place), who right at the outset was I think informing me that the TUC wished to resolve the problem by a statutory automatic extension of time. I took a different view and went—I suppose because I am a lawyer and I trust the judges—for judicial discretion. That is reflected in the Bill which I introduced and also in the Opposition's Amendment No. 42.
The third way of dealing with the problem was judicial discretion to stop the clock. This was the brainchild of the noble Lord, Lord Carr of Hadley, who, listening to the debates, said: "If the Government will not do it this way, perhaps they might do it that way." The last way is the way the

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Government have chosen, which is a statutory automatic jam in the works of the clock, save in certain circumstances, which is the nearest you can get to the original philosophy of the noble Lord, Lord McCarthy, which I, perhaps rather foolishly, rejected.
The Government have recognised this problem and they must be much indebted to noble Lords on all sides of your Lordships' House. Noble Lords on all sides of your Lordships' Committee must be indebted to my noble friend the Minister —I spare his blushes —for his good offices in this somewhat protracted affair; and I, of all, know the extent of his good offices.
There is little else to be said other than that the Government's amendment is well and truly drafted. It really cannot be said any more that the Government, which I support, fail to listen to all sides of the argument, even if it took a little time to evoke this thoroughly sound response on a somewhat waterlogged field-telephone.
I have some notes about what the Bill does, but all noble Lords concerned with the debate have similar expertise to mine and it is wholly apparent. I shall not take up the Committee's time, but there are two matters introduced by the Government which are favourable to trade unions and which I have not taken into account. The period for which the clock is stopped includes the time of making the application to the time of its determination, so the application is the submission of a notice of motion. If it is a few days or a week before determination, the whole of that time operates under the wedge in the works of the clock, which is fair and reasonable.
There are other aspects of the excellent amendment, one of which, if the Committee will look at it with care, is that the Government have been particularly careful not to cast any onus of proof on the trade unions. It is set out in such a way that, if it appears to the court and then on the affidavit evidence the court decides that there is no onus of proof and that it is just a question of looking at the evidence, there are only two sets of circumstances in which the automatic provisions are designed not to operate—to save the unsatisfactory aspects of a stale ballot.
There is nothing more that I wish to say other than that the amendment affords a breathing space. It supports the sanctity of the ballot before it becomes stale; it supports responsible trade union authority; it supports the overriding opinion of the rank and file membership; and it imposes statutory constraints upon the exercise of judicial discretion in the field of industrial relations. As I see it, it seeks fair play for the unions and their members in the lawful conduct of affairs without which the nation would sadly suffer. I renew my gratitude and commend the amendment to the Committee.
5 p.m.
Lord Rochester: I too welcome the Government's belated decision to accept the basic principle first put forward by the noble Lord, Lord Campbell of Alloway, last year and supported by noble Lords in all parts of the Committee, including a number of distinguished Law Lords.
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From the outset, I have felt that it should be possible to reach a consensus in this matter, and, at last, under the Government's proposed new clause, we now have the opportunity to do so. As I understand it, the government amendment does not perhaps go quite as far as that tabled by the noble Baroness, Lady Turner, particularly as regards the degree of judicial discretion that is permitted. However, as one who took part in all the earlier discussions on the subject, I welcome it nonetheless as the best that can apparently be achieved in all the circumstances. I thank the noble Lord, Lord Strathclyde, for the way in which he has introduced it today. It only remains for me to join with the noble Baroness in congratulating the noble Lord, Lord Campbell of Alloway, most warmly on the success that has now attended all his earlier efforts.
Lord Jenkins of Putney: The government amendment is a great improvement to the Bill and I do not differ from those who have warmly welcomed it. However, the clause as a whole remains most dangerous. It seems to me to make any industrial action virtually impossible under the provisions of Clause 7(3). My noble friends Lady Turner, Lord Wedderburn and Lord McCarthy have given notice of their intention to oppose the Question that the clause stand part of the Bill. If it is proper for me to do so at the appropriate time, I shall move that the clause does not stand part of the Bill.
Lord Monkswell: Perhaps I may throw my normal bit of sand into the works. When considering this subject, we are faced with two problems that came out of the dock labour dispute. The first was the frustration of legitimate trade union activity by the introduction of the talks. The other problem was the disrepute into which it brought the courts and the judiciary among ordinary working people because they were seen to be being used.
The amendment seeks to contain the problems raised by the dock labour dispute last year. There is broad agreement across the Committee that something must be done if for no other reason than to protect the judiciary and the courts of this land. Unfortunately, although I accept that it is probably the best that we can hope for, the amendment will not necessarily achieve the outcome that we all hope. I utter these words of warning: I have a fear that unscrupulous employers may still use the law to frustrate industrial action and the results of legal ballots, and again bring the courts and judges into disrepute. I hope that that will not happen, but I fear that, even with this amendment, it might.
Lord Renton: I had not intended to speak, but the remarks of the noble Lord, Lord Jenkins of Putney, caused me to wonder how he had reached the conclusion that, when the Bill as amended comes on to the statute book, it will be impossible to strike, if I heard him correctly. That is quite absurd. The conditions that are now laid down do not extend greatly the conditions under the present law. There have been quite a number of properly regulated

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official strikes following ballots. To say that this regularising of the system will defeat the right to strike is palpably absurd.
I should like to join in the congratulations. Congratulations can become very boring if they are too lengthy, but noble Lords in all parts of the Committee, especially my noble friend Lord Campbell, deserve immense praise for their persistence. It has taken more than two Sessions of this Parliament for the measure to reach the statute book. I do not think that this excellent and universally welcomed change would have occurred unless there had been that persistence. That is no discredit to the Government. We know what governments are like. We know that the advice they get sometimes defeats reasonable change. But here we are in the happy position, thanks to what the Government have accepted and improved upon, of being able to assure all concerned that the courts are now better able to do justice. That indeed is a matter for congratulation on the part of all concerned, of whom I was not one.
Lord Jenkins of Putney: My noble friends have persuaded me that in view of the improvement made to the clause by the excellent amendment motivated by the noble Lord, Lord Campbell of Alloway, it would be undesirable to press my intention to oppose the Question that Clause 7 stand part of the Bill. I should like, however, to place it on record that I am firmly convinced—I believe that after further consideration other Members of the Committee may come to a similar conclusion—that as presently worded the clause invalidates the right to strike and is therefore illegal. I shall not again go into my reasons for believing that. I shall have an opportunity to do so at Report stage when it is my hope that we shall quite firmly oppose the clause in its present form. If we are then unable to amend it I shall then propose that the clause should not stand part of the Bill.
Having said that, I appreciate that the clause is considerably improved in another respect by the amendment that we are now discussing.
On Question, amendment agreed to.
[Amendments Nos. 42 and 43 not moved.]
5.15 p.m.
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 44:
Page 8, line 42, at end insert:
("(6) In the Trade Union Act 1984 (requirements for ballots on industrial action) after section 10 insert—
"Right to Strike.
10A.—(1) Where a person takes part in, or threatens to take part in, a strike or other industrial action which

(a) has the support of a ballot under this Part of this Act;

(b) would but for this section be a breach of the contract of employment of that person; and

(c) is undertaken in contemplation or furtherance of a trade dispute,

he shall not be regarded as breaking that contract of employment, or of otherwise acting in contravention of obligations owed to his employer, by reason only of so doing.
(2) An act or threat which falls within subsection (1) above shall not give rise to, nor be a constituent part of, any cause of action in tort or other civil liability nor shall it constitute unlawful means for any such liability in tort or otherwise".").
The noble Lord said: I rise to move the amendment to test the Government's attitude, however much we can predict it. The amendment raises a question which more and more the legislature of this country will have to face in the coming years. I say that in particular because of our position as a partner in the Community.
It is a general consensus in a democracy that employees should enjoy the civil liberty of association in trade unions and, as part of that, of combination to withdraw services or labour. The United Kingdom is a party by ratification to the ILO convention of 1987 on freedom of association and the right to organise, as well to the Council of Europe Social Charter of 1961, of which Article 6 establishes such a right. The Freedom of Association Committee and even the governing body of the ILO to which the Minister always appeals have repeatedly held that a right to strike is one of the essential means—I quote the statement of the ILO's position which has been repeated since 1952—
"through which workers and their organisations may promote and defend their economic and social interests".
This Bill and the law on which it impacts is in a sense outside that debate. Of course we hear every time the Government put forward an Employment Bill—the noble Lord, Lord Renton, said it today—that there is nothing essentially to limit the right to strike. We heard that in 1980, in 1982, in 1984, in 1988 and now in 1990. Every time, however, there have been greater and greater limitations. But if one speaks accurately, they are limitations not upon a right to strike, because British law has never known a right to strike in the normal legal sense.
A right to strike exists only where employees in combination are not held to be in breach of their contracts of employment when taking industrial action within the range of what is regarded as legitimate industrial action in a certain system, and in particular within the core of industrial action which is legitimate on general international principles. We have, it is true, under all governments concentrated our efforts to produce a system of law which rests not on positive rights of that kind but on immunities. Those are immunities not for the employees to take part in strikes, because they break their contracts—there has never been immunity against that—but immunities for the organisers of strikes. It is interesting to notice that that immunity, although it is now squeezed down to a very narrow compass, applies to the organiser of a strike, be he an official of a trade union or someone else. I regard that as part of the Liberal tradition bequeathed to us by the Government of 1906.
In most comparable countries a stoppage of work within the rules for legitimate strike action imports not a breach of the contract of employment and still less its termination but a suspension of it until the dispute is at an end. I am well aware that around that proposition a good many other legal principles and

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rules can be found and are needed. That is why I say that the amendment is a matter of principle. It does not try to spell out each and every consequential amendment that will be needed but it concentrates on the core proposition. If it be said that my party has changed its position on this matter, I can only say that its publications last year and this year make it clear that that is so. We think that the time has come when this country has to consider very seriously introducing a right to strike and taking the necessary consequential steps in other areas of the law.
It is curious that it appears such an enormous step to us. I know that the Minister does not take kindly to our pointing elsewhere. I point elsewhere only to show how on this matter we are a European curiosity. Although the other principles differ, it is true that in Germany, France, Italy, Belgium, the Netherlands, Greece, Sweden, Spain, Luxembourg and Portugal the contract of employment is suspended when workers take and are organised in taking legitimate industrial action.
The Minister will notice that in a sense we have accepted part of the Government's definition of what is legitimate in that we have not tried to redefine "trade dispute". We say that there should be a ballot, which is common ground, and so on. In 1972, Professor Blanc-Jouvan, the author of Industrial Conflict, a classical modern analysis, wrote:
"The, principle of suspension in case of a lawful strike is today accepted in most countries".
It is a long chapter. I recommend it to the Minister as sustaining very clearly that proposition. It asks the Government not whether they will reconsider the limitations which they have put on the liberty of industrial action, which is jurisprudentially the correct way to describe what we now have, but whether we agree or disagree about the limitations that should be placed on the definition of what is legitimate. Is it not time for this country to say that its workers should start off from the same position as those in all but one or two European countries and indeed in a large number of other countries elsewhere—that legitimate industrial action does not break the contract of employment. That imports a right to strike.
It in the sense of asking the Government whether they are prepared to look at this point that I move the amendment.
Lord Rochester: I support the principle underlying the amendment. I know that it will be said that our system of industrial relations under which trade unions are granted certain legal immunities is different from that in other European countries which operate on a basis of positive rights. However, increasingly —as evidenced by the social charter and its action programme, and the proposed European Council directive on worker participation—there will be need for our arrangements to come more closely into line with those operating elsewhere in the Community.
Aside from that, there is in my view a strong case for enshrining in statute the right of an individual to withdraw his or her labour under conditions such a., those outlined in the amendment. In particular I welcome the concept implicit within it that the
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contract of employment, as elsewhere in Europe, should be suspended rather than broken when otherwise lawful industrial action takes place.
Baroness Seear: I should like to add one brief point. It is high time that we moved towards a declaration of the right to strike. That is what this issue is about. Our system relates to trade union immunities and breach of contract. The breach of contract argument is to a large extent an unreality because it is very rarely used in practical circumstances. Our system is a somewhat muddled and confused way of giving the right to strike.
Why do we need the right to strike? I should like to put this on the record. The fundamental freedom that we are defending is freedom of association. Freedom of association, without the right to strike, is meaningless. If one has freedom of association and freedom to bargain but at the end of the day there is nothing that one can do about it, then one's freedom of association is not worth very much. Therefore, in order to be a reality—and we surely all believe in freedom of association—it has to be underwritten by the right to strike however much we all hope that that right will be very rarely exercised.
Lord Boyd-Carpenter: I do not believe that it is helpful to cite examples of particular aspects of the law in other countries. They are part of systems which in many other respects differ from ours. They may have merits. They may be particularly applicable to the circumstances ruling in those countries. But they have no direct relevance to what we should do in this country.
The amendment seeks to attack what has been a principle of English law on this subject for a very considerable time. That itself should make one hesitate, without very good reason indeed being adduced, to seek to alter it. If one comes to the basic realities of the situation, an individual man takes on a contract of employment with his employer. He signs on and says that he will work at such and such a job. If, as part of strike action, he suddenly stops doing that work, from an ordinary, common sense point of view—let us leave aside industrial law—he is breaking his contract. Therefore what is being urged is that in the peculiar circumstances of an industrial dispute what would be the normal common sense provision in this country is somehow or other to be phased out.
I am not convinced of that. Indeed, if you cease to do the work that you contracted to do for your employer, together with a great many other people, you are inflicting a very considerable injury on the employer. The amendment appears to ignore the fact that any employer who is faced by a strike is likely to suffer very serious damage. We know of many examples in recent years. Other than an emotional attachment to the phrase "right to strike" I have heard no argument as to why this basic reality of the matter—
Lord McCarthy: Perhaps I may—
Lord Boyd-Carpenter: I should like to finish my sentence. I have a respect, which I hope the noble Lord shares, for English grammar. I see no reason why the

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particular provision should be eliminated simply in the name of an industrial dispute. Does the noble Lord wish to intervene?
Lord McCarthy: I wished to ask the noble Lord whether he could think of a right to strike which did not involve setting aside in some way the contractual rights of the employer. That is what we are saying. If he cannot think of a right to strike which does not involve setting aside the contractual rights of an employer, is he not saying, if he respects the principles of English logic, that there should be no right to strike?
Lord Boyd-Carpenter: I believe that the noble Lord has it almost entirely the wrong way round. In the first place, if you exercise the right to strike you break your contract with your employer. The noble Lord is trying to say that if it is in the course of an industrial dispute it does not matter.
The noble Lord says that if you break your contract of employment there is no reality in the right to strike. That is not so. If you wish to strike—and it is a serious decision for any man to take—you have to do so in the knowledge of what you may suffer as well as what your employer may suffer as a result of the exercise of that right. You must make that decision responsibly, being prepared to accept the sacrifice in your case because you desire to press a particular case, good or bad, at considerable cost to your employer. It seems to me absurd for the noble Lord to say that because it can carry a penalty to the striker there is no right to strike. There is a perfectly good right to strike if, in the knowledge of the effect on his own rights, as well as on those of other people, he accepts it and decides to undertake that risk. Does the noble Lord wish to bob up?
Lord McCarthy: Yes, I would like to bob up. I shall rephrase the question. Can the noble Lord tell me of another area where, on exercising one's legal rights, one incurs a legal penalty. His right to strike involves a legal penalty.
Lord Boyd-Carpenter: I can give one very obvious example. If you exercise your legal rights to introduce a civil action, you incur an enormous penalty by way of costs. The noble Lord knows that perfectly well. He must face the fact that responsible, serious-minded people in serious matters such as striking have to count the cost of what they are doing when deciding whether it is worth while to do it.
I accept entirely the obvious view of the noble Lord that the knowledge that if the man strikes he breaks his contract of employment may be a discouragement to his exercising his right to strike. It is because it is such a discouragement that the noble Lord, who rather favours strikes, wants to take it out. I suggest that responsible people taking such decisions should know the cost. If they are prepared to face that cost, they have the full right, when exercising it, to strike. That has been our law for a very considerable period.
I therefore suggest that the amendment is very harmful. It is likely to produce more strikes. Indeed, I do not believe that the noble Lord can dispute that its
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effect might well be an encouragement to strike action. Yet I doubt whether any responsible person in this country really wishes to see more strike action taking place. It is a matter surely for congratulation that strike action has diminished over the years thanks largely to the policy of successive legislative efforts of the present Government. One wishes to see that continue.
I hope that if the amendment is pressed it will be defeated. It seems to me quite wrong. I go further. It seems to me that when one talks of the right to strike there is reason to consider whether there should be such a right in certain areas where a direct public service is involved and where injury to the public can occur from the withdrawal of, for example, an important public service. There are areas in our national life—I am not talking about ordinary industry—where strike action does no harm to the employer. However, it does a great deal of harm to the community and to innocent people who are not connected. I hope that consideration is being given to the question of whether the limited public service areas in which strike action is no longer permitted should be widened. Therefore, rather than passing an amendment designed to stimulate strike action, I hope that Members of the Committee will take a firm line and reject it.
5.30 p.m.
Baroness Phillips: I wish to take up a point made by the noble Lord at the beginning of his contribution. He said in a slightly patronising manner that what other countries do does not matter because we, the British, do something different. I understand that the people who do not have a right to strike are invariably living in countries with a Communist or Right-wing dictatorship. Surely all democracies have this kind of legislation.
The Government want us to be good Europeans, and every other moment we are told about 1992. Therefore, it is relevant that any legislation we pass is in line with that of other countries. Bearing in mind what the noble Lord's right honourable friend said, I thought that his comments were unfortunate. We do not want that kind of nationalism to grow. If we wish to be good Europeans, we must be good Europeans in every sense of the phrase.
Lord Boyd-Carpenter: If being a good European means doing what other European countries do, however silly we may regard it, I admit that I am not a good European. On the contrary, I hope that the example of our efficient system of operation will cause our friends in Europe to imitate us rather than expecting us to imitate them.
Lord Harris of Greenwich: But is not their economic performance more impressive than ours?
Lord Boyd-Carpenter: If the noble Lord wishes to open up that subject, I am prepared to speak for three-quarters of an hour on the marvellous economic performance of this country during the past eight to 10 years. However, I shall say only the words which I am

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sure my noble and learned friend Lord Hailsham would use were he present: si argumentum requiris, circumspice.
Lord Renton: We are not trying to deal with European law; we have a Bill which deals with the law of the United Kingdom. It is always a pleasure to hear the noble Lord, Lord Wedderburn of Charlton, tangling with the law. However, I should be grateful to learn from him what his amendment adds to our present law, if anything.
Parliament established in the 19th century the right to strike. There was then a Conservative Government. This Government have continuously acknowledged that right. By implication, it is acknowledged again in the Bill. If we spend time re-establishing and rewriting well-known principles which everyone accepts in our current legislation, we shall take even more time than we inevitably take. The amendment must be read with other legislation, but especially with the Trade Union Act 1984.
The right to strike was first made subject to the civil law. The 1906 Act established immunities. Various amendments and counter-amendments were then made to the law until 1978 and the previous Labour Government. Under the present Government, the right to strike has been limited to circumstances in which, by a clear majority, the members of unions believe that they should be allowed to strike. The circumstances in which they are allowed to decide that, and which are assumed in the amendment, are defined in the Trade Union Act and in other legislation. The amendment appears to add nothing to the present law. However, if it does Members of the Committee will be glad to hear from the noble Lord, Lord Wedderburn, in what way. So far he has not managed to prove that.
Lord Campbell of Alloway: I shall be brief, but this is an important point. Is this the time, the Bill or the place to advocate the principle of suspension of contract, to uproot the whole of our system of labour law? It started with the common law which received a statutory imposition in 1906 and which has since developed on the basis of immunities. Is this the time, the place or the Bill to talk about moulding our labour laws on continental systems and to attempt to harmonise labour laws? I am not sure whether again we have the committee of experts—
Lord Boyd-Carpenter: Let us hope not!
Lord Campbell of Alloway: I am sure that it would wish to do so. The proposal is a fantastic dream and bears no form of semblance with reality. It is contrary to the fundamental principles upon which the whole system of labour law has evolved and which are much more important than these academic airy-fairy issues about how to approach the principle. As my noble friend Lord Boyd-Carpenter has truly pointed out, what could the clause achieve? It could achieve only one thing—that is, to increase the propensity for strike action with serious economic consequences that would be wholly unacceptable. There is always the reasonable problem of the public service sector.
Lord Monkswell: We are entitled to dream that the law of the land shall equate with the practical reality of people's experience and their understanding of what is fair and right. We are entitled to have that kind of a dream. It is a little unfair to say that this is the wrong time and the wrong place to try to bring that dream to reality.
We hear esoteric arguments about the law and the rights of employers and employees. However, the practical realities as they are understood by employers and employees are that on the bottom of a ballot paper is the statement that if one takes industrial action, one shall be deemed to have broken one's terms of contract and will be liable for dismissal. That gives no one the right to strike. Effectively it states, "If you go on strike we shall penalise you".
The reality is that in the vast majority of cases that does not occur. The ordinary working man who has the ballot form in front of him knows that if he votes for a strike and he and his colleagues go on strike, they will not be dismissed. That happens only in the case of a very bad employer who acts arbitrarily and unfairly and who is a blot on the face of British business and commerce. A reasonable and sensible employer, an employer who runs a well managed business, would not dream of taking that sort of action and does not take it.
The practical reality is that what the clause says at the bottom of the page is a dead letter. The amendment merely says what should be the law of the land. Effectively, we are taking away words and saying, "If you go on strike, you will not be dismissed from your job. You will not be taken through the civil courts for losses suffered by your employer". No reasonable employer would take that course of action. We should recognise that.
Even in this day and age and in this place we should be entitled to dream that the law will equate to the practical realities of the way people understand their rights.
Baroness Seear: Members of the Committee who have opposed the amendment say that it will increase the propensity to strike. How do they explain the fact that many countries with the law is in this form have a better strike record than this country?
The noble Lord, Lord Boyd-Carpenter, claims that the falling away in the number of strikes in recent years has been a result of the Government's excellent policies. Some, although not all, of those policies we on these Benches strongly supported. However, I am sure the noble Lord will agree with the unmistakable statistical evidence that strikes always fall under conditions of unemployment. May not that have had a great deal more to do with the fall in the number of strikes than the fact that the Government have legislated?
Lord Boyd-Carpenter: What the noble Baroness says is the opposite of what has happened. The numbers of unemployed have fallen, and so have the number of strikes.
Baroness Seear: The number of strikes fell particularly when unemployment was very high. The noble Lord knows perfectly well that that is so.
Lord Boyd-Carpenter: The noble Baroness knows perfectly well that in the past year or two the exact opposite has occurred. The numbers of unemployed have reduced and so have the number of strikes. The noble Baroness cannot get away from that.
5.45 p.m.
5.45 p.m.
Lord Strathclyde: Faced with this amendment it is my turn to wonder whether Members of the Committee opposite have a proper understanding of what might be the real world effects of the industrial relations legislation which they apparently favour.
In very broad terms, our legislation not only protects, and will continue to protect, the organisation of industrial action through the statutory immunities. It also protects employees taking industrial action by precluding a court from ordering any striking employee to honour his side of his contract of employment and return to work.
Amendment No. 42, however, proposes nothing less than to turn our framework of industrial relations law inside out. It proposes to enable workers to take industrial action with impunity provided only that the action "has the support of a ballot" and that it is "in comtemplation or furtherance of a trade dispute".
Let us be clear what that would mean in practice. Where such industrial action was taken the employer could not dismiss any of those involved without risking claims of unfair dismissal or claims for damages for breach of contract under the common law. Furthermore, if Sections 62 and 62A of the 1978 Act were repealed as no doubt the Opposition intend, the employer would also be risking claims for unfair dismissal. Clearly, the Opposition want to enable employers to be held to ransom in this way. They care not at all how outrageous or how potentially damaging to the employer's business the demand being claimed by those taking the action might be.
Not content with allowing militant workers to hold an employer to ransom, however, the amendment further proposes that it should be lawful to threaten industrial action "with the support of a ballot" and in contemplation or furtherance of a trade dispute".
What does that mean? In effect, it means that a union can lawfully threaten such action regardless of the reason. That would give the union immunity for threatening such action even if it would be, for example, secondary action, or action to establish or maintain a closed shop.
We have heard much about comparative legislation in other parts of Europe. The noble Baroness, Lady Phillips, mentioned that, as did other Members of the Committee. I am sorry that the noble Baroness is not in her place. We must get this absolutely right because proper comparison between the law in different countries, as my noble friend Lord Boyd-Carpenter said, needs to take account of what is covered by all the relevant law and the context of industrial relations
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practice and traditions in which it operates. In many respects other EC countries place greater restrictions on industrial action than we do. For example, industrial action is unlawful if its effects are out of proportion with the demands being made, and the courts will decide whether this is the case. Recent court decisions include a ruling in France that a strike was unlawful because it impeded the functioning of a factory. In the Netherlands industrial action by nurses was limited by the courts because of the effect on patients. In Belgium industrial action by airline staff was ruled unlawful because of its effects on the community.
Lord Wedderburn of Charlton: Is the French decision quoted by the Minister the decision of 7th January 1988? If so, is he saying that that is the central core of the decision? Was it not the case that no demand was made by the union or the workers in that case and that it was upset by the Cour de Cassation on those grounds? It is the second time that the noble Lord has quoted that case without a date and without a reference.
Lord Strathclyde: I shall certainly find out the provenance of that case.
British law specifically prevents employees being ordered by a court to perform their contract of employment. Elsewhere the court can order a return to work. In Italy the government can use the police to force strikers back to work and did so recently when train drivers came out on strike. In Portugal the government used similar powers against striking air traffic controllers and other striking workers. It is not for me to criticise what other European countries do. That is entirely their decision; that is the way in which they have set up their employment laws over many years. However, it is hopeless for Members of the Committee opposite to quote employment law of other European countries and then say that that is what should be done here.
This amendment would produce legislation that could only disrupt good industrial relations, license militant industrial action and undermine, with fatal results for employment and jobs, the confidence of those who might consider investing in the UK. It would amount to the most unbalanced kind of law and a charter for strikes.
Therefore, I hope that the noble Lord will withdraw his amendment and, failing that, that the Committee will vote soundly against it.
Lord Monkswell: I cannot allow the Government to get away with that. The impression which the Minister gave was that strikers would act with impunity. Nothing could be further from the truth. When ordinary working men and women go on strike—and that is obviously not within the understanding of members of the Government—they lose their wages. That is the whole source of their income. They do not have investments on which to fall back. They are not names known at Lloyds on which they can fall back for wealth. They lose their wages. That is a very significant penalty.

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Not only would they do that under this amendment which we are discussing; currently they face the arbitrary loss of their employment. If one's employment is one's only source of income, loss of employment is a very significant penalty. It may not be a very grave penalty for a government Minister in this Government to lose his job because no doubt most government Ministers can fall back on other sources of income. However, that experience is not the experience of the vast majority of people working in this country.
Lord Wedderburn of Charlton: I am rather surprised by the interesting debate which this amendment has sparked off. I am grateful for the support of the noble Lord, Lord Rochester, and the noble Baroness, Lady Seear. Some Members of the Committee asked why we had proposed the amendment because it is out of spirit with the Bill as though our other amendments are always in the spirit of government Bills. It was put as a mirror in which the ugly features, or at least the less than attractive features, of the British system at present might be reflected.
The central point has come from what Members of the Committee have said; namely, that in a system of law in which there is in the proper sense a right to strike, you cannot be dismissed only for taking part in whatever the system describes as legitimate industrial action.
I am glad to see that the Minister is reaching out to a comparative context. I do not regard his comparative law as adequate. I believe that he mis-stated the French law. I agree with him about the Italian law, subject to the new law which was passed a few weeks ago. Of course, each system is very different, as the noble Lord, Lord Boyd-Carpenter, said. Other countries are very different. Their practices will remain different, as will ours.
A noble Lord: Hear, hear!
Lord Wedderburn of Charlton: "Hear, hear", says the noble Lord; and we agree with that. Our systems of free democracy and democratic elections differ. I do not know whether the noble Lord and I agree on whether or not we should have exactly the one we have or some new type; the noble Baroness would not agree with us on that. But we all agree on the need for a freely-elected legislature. That is what we have been considering in the past few weeks, just so we can all agree that there should be a right to strike. That would be expressed in different ways in different systems. But a worker should not be dismissed merely by reason of the act of taking part in industrial action. It is as simple as that.
The noble Lord, Lord Renton, seemed to think that we had established that practice at some time in the 19th century. I shall have to look again at the books because in that sense there is no right in our system. It is built on immunities and all sorts of other things which I enjoy. Some noble Lords have no concept of how much I would miss that old law, technically speaking. But there comes a time when one must look to the future. In this case the Government are looking to the past.
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Perhaps I may make one point in regard to the breach of contract issue. I understand how difficult it is—it has been difficult for me—for those who are reared in the system where a strike is invariably a breach of the contract of employment, to believe or conceive that it could be anything else. The only reason for looking at systems in other countries is that if a lot of other places—almost everywhere—act differently on that basic point of principle, then perhaps one should reconsider our position.
It is no use saying that a worker who goes on strike breaks his contract. As Professor Blanc-Jouvan said in the passage of which I read only a phrase, the strike is always a non-performance of the contract but is not a breach of the contract—that is, in these systems—because it is the exercise of a collective right. In other words, it is the legal system that defines how far the non-performance is a breach, just as it is in regard to the absence of a worker by reason of illness. The noble Lord and I would agree that a worker who is ill does not break his contract in being away from work, at any rate initially. But the judges of the early 19th Century would not agree with that. It took an evolution of principle to change matters. This is an evolution of principle.
We have had a very useful and interesting debate. One day, quite soon, in different circumstances we shall come back to this issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 7, as amended, shall stand part of the Bill?
Lord McCarthy: We have given notice that we shall oppose this clause; but we have explained—I agree with what my noble friend Lord Jenkins said—that we do not wish to take our opposition to a Division. I briefly want to plead with the Minister to think again about the central point that we have been making for the greater part of the debate on this clause; that is, the question of what it means to restrict the union's right to recommend, to persuade, or—and this is what the Bill says—to "call" for a strike.
The Bill appears to say that the union is not allowed to do that before the date of the ballot. When the Minister was pressed on this matter—I ask him please to try to pay attention—as I understand it he said, "You can call; you cannot authorise; you can call, but only if you are calling for a yes vote". The question then arises: "Can you say why you want a yes vote?" If you seek to persuade people why they should vote yes, is that calling? Is that calling in a way not permitted by the Bill? If you get your yes vote, can you say what it will involve? Will it involve industrial action? If the union says, "We call on you to vote yes, and if you vote yes it will involve industrial action", is that a call?
Can a union defend itself against an injunction when all the employer would have to argue is that there was a serious case to answer; that perhaps the call went beyond the "ask for a yes vote" and sought to persuade people that when the vote was taken they should come out on strike?

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Those are the issues we ask the Minister to consider. We shall come back on Report with further amendments. We do not wish to divide the Committee at this time, partly because we want to come back on Report and review the field, and partly because we do not wish to do anything which might in any way appear to challenge or set aside the magnificent but modest achievement of the noble Lord, Lord Campbell of Alloway, the Alloway amendment.
Lord Strathclyde: This clause was added to the Bill at Commons Report stage. It is a logical extension to the law to take account of other provisions in the Bill. The clause will prevent shop stewards taking advantage of ballots on official strikes to organise unofficial action. It requires a union to specify on the voting paper who will call the industrial action to which a ballot relates if there is a majority vote in favour and the union wishes there to be such a call.
It will be unlawful for a union official not specified on the voting paper to call prematurely for the industrial action. Without the provisions of the clause a union would not have to repudiate to avoid liability for a call to take industrial action where unauthorised officials had called for industrial action following a proper ballot in favour of action.
In those circumstances, which occurred at Ford plants last December when unauthorised shop stewards called for action, the industrial action which follows is really a form of unofficial action. The law as it would stand after the passage of this Bill without the clause would make that call official, and ensure that the union had protection against legal proceedings in respect of the organisation of industrial action resulting from their call simply because the call followed a ballot.
The clause also enhances democratic procedures and union members' rights. Members voting in an industrial action ballot ought to know who their union wishes to have authority to call for the action to which the ballot relates, and the union should make that clear by appropriate specification on the ballot voting papers. The clause helps to secure such procedures and rights.
The detailed plans of the clause follow logically from these principles. Thus if a union fails to satisfy the new requirements, a ballot will not provide protection against proceedings by employers, members and so on if it organises industrial action. A union will have considerable freedom to specify by name or description whichever and as many of its officials it wishes to have authority to call the industrial action to which a ballot relates. If the action is called by any of those specified, it will clearly be official action.
What matters is that there should be no premature call to take the action by an unspecified official. Once the action is called by a specified official, following a proper ballot within four weeks of the date of the ballot, subsequent calls by unspecified officials will not render the union potentially liable.
The noble Lord, Lord McCarthy, asked the Government to think again about the provisions in the
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Bill, and particularly about the aspect of calling for a vote. Calling for a yes vote is calling for a yes vote. It is not calling for industrial action. That is the point I made when we discussed the amendments in the early part of the clause. If the noble Lord wishes to bring this matter back at Report stage, I have to say now that I shall use exactly the same arguments and tell him precisely the same thing.
This clause is a logical extension of the current law and other provisions in the Bill. It encourages both increased union responsibility and increased democracy within the union by ensuring that everyone concerned is certain who does and does not have authority to call for industrial action. It prevents extremists manipulating the results of ballots for their own purposes. For those reasons, I commend the clause to the Committee.
Lord McCarthy: Before the noble Lord sits down, perhaps I can say that he has introduced a new and interesting concept—the premature call. Though he need not answer now, my question is: how premature can a premature call be, and how late does a premature call have to be before it becomes a late call? Is a late call as lawful as a premature call? If not, how late does a late call have to be before it is illegal?
Lord Strathclyde: I wish the noble Lord, Lord McCarthy, had asked that question earlier when we were discussing the detailed provisions of the clause rather than when we are discussing clause stand part. I shall certainly need to read a little more carefully what the noble Lord, Lord McCarthy, said, and come back to him.
Lord Wedderburn of Charlton: To help us think about Report stage—and I am sure that the Minister wants us to do that—perhaps I may ask a rather more simple question. A call to take industrial action before the ballot is improper. Can the Minister give us an example where a union's call for industrial action at that point would not amount to authorising it?
6 p.m.
Lord Strathclyde: No, I am not sure that I can give an example to the noble Lord, Lord Wedderburn.
Lord Monkswell: Before the Minister sits down perhaps he can clarify something for me in practical terms. Consider a situation where a group of workers are discussing industrial action and the normal person who conducts negotiations is the shop steward. They vote in the affirmative for industrial action and send the shop steward—the named person—into management to negotiate. Management succeeds in buying off that shop steward. That is almost unheard of in the union movement but it could happen. If the shop steward then refuses to call for industrial action what would be the legal situation of the group of workers if they, without any call, walked off the site and, effectively, individually took part in a collective dispute? What would be the legal implications?
Lord Strathclyde: As I understand the noble Lord, Lord Monkswell, he is asking what would happen if in a workplace a proper ballot were to take place organised by the trade union in that workplace and all the members, in the proper way, were asked to vote

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and the vote was for industrial action. Thereafter, presumably the shop steward or the representative would go to the management and say, "We have had a ballot and everything is above board and fully lawful. The workers in this plant have decided that it is fair to have industrial action". Presumably at that point the employer negotiates with the trade union representative and comes up with a formula whereby the shop steward can recommend to the workforce that there is no need to go on strike because of the new deal. I believe the phrase "buying off" was used by the noble Lord, Lord Monkswell.
However, my understanding is that it is not an obligation that the workers of the plant need necessarily take the views of their shop steward. They do not need to. If the workers take spontaneous action, it is and will be unofficial action. Therefore it will come within the ambit of the Bill. I think that answers the noble Lord's question.
Clause 7, as amended, agreed to.
Lord Strathclyde Lord Strathclyde moved Amendment No. 44A:
After Clause 7, insert the following new clause:
("Period after which ballot ceases to be effective
.—(1) Subject to the following provisions, a ballot ceases to be effective for the purposes of section 7(3) (b) at the end of the period of four weeks beginning with the date of the ballot.
(2) Where for the whole or part of that period the calling or organising of industrial action is prohibited—

(a) by virtue of a court order which subsequently lapses or is discharged, recalled or set aside, or

(b) by virtue of an undertaking given to a court by any person from which he is subsequently released or by which he ceases to be bound,

the trade union may apply to the court for an order that the period during which the prohibition had effect shall not count towards the period referred to in subsection (1).
(3) The application must be made forthwith upon the prohibition ceasing to have effect—

(a) to the court by virtue of whose decision it ceases to have effect, or

(b) where an order lapses or an undertaking ceases to bind without any such decision, to the court by which the order was made or to which the undertaking was given;

and no application may be made after the end of the period of eight weeks beginning with the date of the ballot.
(4) The court shall not make an order if it appears to the court—

(a) that the result of the ballot no longer represents the views of the union members concerned, or

(b) that an event is likely to occur as a result of which those members would vote against industrial action if another ballot were to be held.

(5) No appeal lies from the decision of the court to make or refuse an order under this section.
(6) The period between the making of an application under this section and its determination does not count towards the period referred to in subsection (1).
But a ballot shall not by virtue of this subsection (together with any order of the court) be regarded as effective for the purposes of section 7(3) (b) after the end of the period of twelve weeks beginning with the date of the ballot.
(7) In this section—
"date of the ballot" has the same meaning as in Part II of the Trade Union Act 1984; and
"trade union" has the meaning given by section 28 of the Trade Union and Labour Relations Act 1974.").
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 8 [Dismissal of those taking part in unofficial industrial action]:
Lord Rochester Lord Rochester moved Amendment No. 45:
Page 9, line 7, after ("action") insert ("having received due warning from his employer of the consequence of that action").
The noble Lord said: We come now to Clause 8 which in my opinion is the most objectionable clause in the whole Bill. I remind the Committee that under existing law if an employer is to avoid the risks of complaints of unfair dismissal he must dismiss all his employees who take industrial action or none at all. Furthermore, if he wishes to re-engage any employees he has dismissed within three months he must re-engage all of them or face action for unfair dismissal by those he has not re-engaged.
Under Clause 8 it will be possible for an employer to single out for dismissal any individual who has taken part in unofficial industrial action. That individual will then have no right to claim unfair dismissal and the employer will no longer have to justify his action before an industrial tribunal. That offends against natural justice.
Amendment No. 45 is the first of a series of amendments aimed at mitigating the effects of this unreasonable clause. It is easily explained. A simply tenet of good management and of elementary justice is that before someone is dismissed for misconduct he should receive due warning of what will happen if that misconduct continues. Of course there must be exceptions to that general rule when the misconduct is so serious that it can result only in summary dismissal. But I do not believe that an individual or collective refusal to go on working, perhaps on grounds of perceived danger to health or safety, should be subject to instant dismissal as would be the case if this clause is not amended in the way proposed.
Amendment No. 46, which is tabled by the noble Baroness, Lady Turner, and which is grouped with this amendment, has the same basic objective as my amendment. The only substantial difference between the two amendments is that the amendment tabled by the noble Baroness specifies the minimum time that should elapse between the giving of a warning and dismissal.
It is sometimes said by the mover of an amendment that it is so clearly desirable that he or she feels sure the Government will accept it. On this occasion it really is my hope that the noble Lord, Lord Strathclyde, will do so. I even wonder whether the Government have perhaps overlooked the point I have made. I beg to move.
Baroness Turner of Camden: I rise to support this amendment moved by the noble Lord, Lord Rochester. As the noble Lord said, this is a grossly unfair clause. It is perhaps the nastiest clause in a nasty little Bill. I am totally against the clause, as I am sure are most people who have concern for civil liberties. It takes away the right of appeal. That is

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what it does in regard to so-called unofficial strikers. There is to be no legal redress, even if the employer has made a mistake, because there will be no right of access to an industrial tribunal to plead the case.
It must be remembered that under this Bill there is a wide definition of unofficial action. It is not only unofficial strike action. The action could be short of a strike. Simply calling for an overtime ban or a work to rule could be caught, I understand, by the definition in this Bill. Moreover, the unique feature of this clause is that it allows an employer to dismiss selectively; in other words, for the first time he will be able to sort out so-called ringleaders. If dismissed, such people would have no recourse to industrial tribunals even to seek to prove the employer wrong. Such an employee would be in a far worse position than a person accused of industrial misconduct. Have not the Government realised just how unfair that is?
We shall of course have an opportunity to debate this matter at greater length when we debate the clause as a whole. In the meantime, we have put down a whole series of amendments designed to make the clause less draconian and to ameliorate it a little. The noble Lord's amendment stipulates that an individual in this position—individuals are likely to be sorted out; that is what the clause is about—should at least have a warning. As the Bill stands there is no entitlement to such a warning. An individual could presumably be subject to summary dismissal without any warning. Surely that is unfair. According to this modest amendment the individual concerned must be given a warning before the time of dismissal. He would then at least have some time to secure advice and to decide what best to do in the circumstances facing him.
The amendment is so modest and so eminently fair and reasonable that, like the noble Lord, Lord Rochester, I cannot imagine what the Government will say if they intend to oppose it. I await their response with interest. If it is not satisfactory, I hope that the noble Lord, Lord Rochester, will test the opinion of the Committee. It is quite important that we have some protection for individuals faced with this draconian provision. I support the amendment.
Baroness Seear: I ask the Government to think very hard and to accept this amendment. Let us picture a situation: most supervisors and foremen are no doubt fair, just and good tempered. We all know that in every organisation and occupation there are some such persons who are not. There can be a build-up of bad feeling in a department. That can be because of action taken by a bullying and unreasonable supervisor. Not unreasonably, in many cases an unofficial strike takes place. Unless this amendment is accepted, the unofficial strikers can be dismissed without any claim whatever. It is an unofficial strike and they would have no right to appeal. They would have no opportunity to say that the reason for the strike was bullying tactics, or whatever it may be. It may be the culmination of a variety of matters which have taken place before and which have blown up into a big row. The result is that the workers go out on
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strike in a burst of fury. That action should not lead to dismissal without any right of appeal for unfair dismissal.
Lord Strathclyde: With respect to the noble Baroness, I do not think this amendment is about an appeal. It is about whether there has been due warning.
Baroness Seear: Absolutely, and that is why I am supporting the amendment. If the workers go out on strike in that kind of way it provides a breathing space. Without this amendment it may mean that workers who have gone out on strike in a burst of temper and without having considered their position will be dismissed. That is a circumstance which does and will happen where human beings are gathered together and get in each other's hair. They will have no right to go to a tribunal and explain about the bullying that had taken place beforehand and that built up to and led to the strike. They should be given a warning that, if they do not go back to work and take advantage of the time and opportunity for matters to settle down, they will be dismissed.
Lord Renton: There is much more to these amendments than meets the eye. I wonder if Members of the Committee opposite who support either of these amendments have realised what the implications may be. A man who has already committed serious misconduct for other reasons may be on unofficial strike which would justify his instant dismissal. If either of these amendments is accepted, the mere fact that he has to wait for a warning before he can be dismissed will mean that, though the other misconduct had been serious and may even be continuing, nevertheless he cannot be dismissed. That is quite wrong.
Let us suppose that we have a different situation where there is no other misconduct but simply the question of an unofficial strike. That strike may be doing very grave damage to the industry concerned. It may also be doing grave damage to other workers in the industry because production may have been held up by it. Other workers may not wish to strike at all. The fact that the strike is unofficial almost certainly indicates that only a minority of workers want it. If all the workers wanted to be on strike and it was within the provisions relating to secret ballots, then those workers would have made the strike official.
It will be dangerous and embarrassing if we accept either of these amendments. I do not find acceptable the idea that the dispute must continue for another day however much damage it is doing and no matter how unpopular the action is with the majority of the workers.
6.15 p.m.
Lord Wedderburn of Charlton: Does the noble Lord not agree that, on his first point, this clause is not about whether an employee can be dismissed, as he put it? This clause concerns access to the tribunal. In the example that he gave and allowing all the points in his argument, if an employee had a long history of serious misconduct and then the employer attempted to dismiss him but could not satisfy the provisions of

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this clause and this amendment with its warning point —or, without the amendment, some other point—the consequence of the latter condition would be that the employee could go to the tribunal.
In the example given by the noble Lord, the fact that an employee had a history of serious misconduct would mean that, in a well-run firm, he would have received previous warnings. I should hate to think that there were many managements that did not warn about misconduct. In such a case it defeats the imagination to suppose that the employer could not prove to the tribunal that there was some substantial reason, that he had acted reasonably and that therefore the dismissal should be upheld.
Lord Renton: I read the clause before I worked out the effect of the amendments to it. It is fundamental to the clause that on the part of the employer there is a right to dismiss if there is an unofficial strike. The clause deals with the right to complain of unfair dismissal, and that is the point I was dealing with. I still say that these amendments could cause unnecessary prolongation of a strike—for one day, at any rate, in connection with the second amendment —because of the extension of the right to go to the tribunal. It is as simple as that.
Lord Murray of Epping Forest: The noble Lord, Lord Renton, illustrates appositely the paradox of this situation. If a man is alleged to have committed a serious offence by his employer and he is sacked, the employee can go to the industrial tribunal and pit his arguments against those of his employer and ask for a fair and impartial hearing. However, if a man advent tiously goes on unofficial strike, no matter what the merits of his action or whether the cause is the responsibility of the employer or the workers, he may be sacked and he has no right whatever to ask anybody to test his case against that of the employer who sacked him. The employer has absolute power in this situation. There is no appeal or redress: there is nothing.
That contrast alone should persuade us to think again about this issue. There is nothing to be said for the clause. The question raised by the amendments is this: how can the damage caused by this clause be limited? It is also necessary to find a way of limiting the damage not just to the individual but to the employer and to industrial relations. To give a breathing space would have the effect of concentrating the mind of the employees on what has happened and what they are doing.
From time to time great play has been made by Members of the Committee opposite with the desire for cooling off periods. That is a fine suggestion. Let us have a cooling-off period in such a situation. However, let us also keep our mind on the central point, which is not how you punish people who have lost their temper but how you settle a dispute and get the men back to work. If we look at that issue, the idea of a cooling-off period upon which the employees will have their minds concentrated makes much sense. It would also concentrate the mind of the union upon achieving a solution to the problem.
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In my experience, so many unofficial actions have been taken by men in desperation because they have been on the telephone calling for union intervention to sort out grievances. The union official, who has many things to do, has said, "Right, I shall put it on the agenda for a week next Wednesday". However, in the meantime, the situation blows up and the men take unofficial action in order to get the official there. The union official then goes to the works within a couple of hours, leaving the many other matters that he was dealing with. If the aim is to get the union cracking and avoid giving notice of this sort, the union's mind can be concentrated on the matter and it can be brought into the proceedings more quickly. That would be addressing everyone's mind to solving the problem.
The noble Lord, Lord Renton, talked about other people in industry who may be affected by the action. I can well understand his point of view. Indeed, there may well be other people in other factories who are affected in such a situation as regards the flow of goods and who would like to see the men go back to work. They would want the union to get cracking in order to achieve that aim.
I prophesy that if an individual is sacked in such circumstances such an action would transform the whole situation. It would produce such a wave of sympathy from other people that it would exacerbate and inflame the situation and escalate the action as distinct from cooling it down. That is the scenario which the union would face. It would have to meet demands in respect of the actions of other people.
Perhaps Members of the Committee can cast their minds back to the time of the so-called Pentonville Five, which I know is strong in the memory of the noble Lord, Lord Campbell of Alloway. I have little sympathy with unofficial action generally speaking, although I understand the need for it on occasions. I did not have much sympathy for the Pentonville people. However, I understood the position when ordinary decent trade unionists said, "Well, whatever they have done you cannot put them in jail for that sort of thing". If you create a sense of unfairness, you will finish up with a much worse situation.
Therefore, it is not just a matter of being fair to the individual, although that is essential. It is not how you enable an employer to take arbitrary, vindictive and short-term action which will do him no good in the long run; it is how you resolve the dispute and solve the problem, as distinct from enabling him to spring some sort of trap.
Therefore, I hope that the Government will think again about this aspect of the matter. There is no justification for saying to a man, "I am telling you that you have done something wrong but you will not have the right to go to a tribunal and you will not have the right to appeal to the union to call for a ballot so that official action can be taken in your support". All that is ruled out. In such a situation, I prophesy that the end result will be infinitely worse. This clause will do employers and industrial relations in British industry no good at all.
Lord Monkswell: My noble friend Lord Murray has made an important point. One of the risks of this clause proceeding unamended is not that it would do anything to stop unofficial action but that it would set British industrial relations back by 30 or 40 years. Perhaps I may quickly explain what I mean. I learnt what I know of industrial relations from two sources: from union and from management colleagues. One of the most significant lessons I learnt was from someone who I think is one of the best managers I have ever met. He served his apprenticeship in management with Fords at Dagenham in the 1950s. He recounted to me horror stories about how the foreman on the shop floor had the power to hire and fire people. He said that all sorts of malpractices took place, including nepotism, favouritism, the giving of backhanders and so on. The power of the foreman was wielded by arbitrary dismissal; in other words, he had the power to sack a worker instantly. Therefore, if he did not like a person's face he could get rid of him.
To counteract that practice the workers developed unofficial procedures. For example, if someone was sacked the shop steward would get up on a bench, ring a bell and everyone would walk out. It was totally unofficial action, but it was a precipitate reaction to a precipitate event. Those are what I describe as the bad old days of industrial relations, when the foreman had the sort of power which resulted in the arbitrary loss of jobs.
To resolve disputes, the unions and management introduced procedural mechanisms. In the main, they were very effective. They succeeded in containing an immense amount of unofficial action. My fear is that, if we allow this clause to go through unamended, we shall be taking industrial relations in Britain back to those bad old days. I implore the Committee not to go in that direction.
Lord Campbell of Alloway: I hope that the Committee will accept my apologies for I did not arrive in the Chamber until late and as a result I have not heard all the speeches which had been made. However, I rise briefly to say that I personally have sympathy with Amendment No. 45 but I do not support Amendment No. 46. Fortunately, I was present in time to hear the speech made by the noble Lord, Lord Murray.
I hope that the Government will be able to reconsider their position on the issue. The reason I say that is basically the way disputes blow up, especially unofficial disputes. Before an employer dismisses a person it seems fair that he should, not necessarily one or five days before, say to him, "Look, if you go on like this I shall dismiss you". In other words, the employee should be given a last chance. That seems to me to be a reasonable proposition as regards the way in which industrial relations should be regulated.
I say this because that would be the way I would conduct my own affairs with any of my clerks or employees. Of course, I virtually employ no one at present and therefore it is not a very good analogy. However, if I were an employer of labour in the proper sense I know that that is what I should do. In my view,
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it is almost a moral and not a legal problem. I think that it is proper to ask from these Back Benches that the Government should think again on the matter.
Lord Wade of Chorlton: Perhaps I may draw the attention of the Committee to the fact that the Bill does not say that an employer has to fire someone who takes illegal action; it merely says that he should give warning to the employee that if he should consider and does in fact end up taking illegal action then the employer may consider dismissal. I cannot see anything there which takes away anyone's moral rights. It is similar to the situation where we are all warned that if we drive at more than 70 miles per hour on a motorway we are liable to be stopped and convicted. Therefore, we have the sense to read the law and not to do so, unless we decide that we are risky people and are prepared to take that risk. The clause as I read it does no more than that.
I entirely agree with the management point made by the noble Lord; indeed, it may be extremely silly for any manager to give effect to the provisions in the clause on many occasions. However, that is something which he as the manager will decide. Therefore, if he takes sensible management decisions, he would not dream of so doing. However, I cannot see that there is anything in this clause which says that people will be fired. It does not say anything of the kind.
6.30 p.m.
Lord Murray of Epping Forest: Before the noble Lord sits down, does he agree with me that managers are as likely as working people to lose their tempers sometimes? Just as a group of workers may say, "Oh, blow" and take industrial action, a manager may say, "I have had enough of this. Out. There is the door, there are your cards. Out you go", without even stopping to think. If he has to stop to think about the consequences of his actions that might help him. I take the noble Lord's point, but does he agree with me that some coolness on the part of both people, and a lack of opportunity, might be helpful to both sides, not just to the worker?
Lord Wade of Chorlton: If I may reply to the noble Lord, I can tell him that that has happened to me on a number of occasions. I can think of many occasions when I have had tremendous rows with employees, but I have not fired them, because on reflection I thought that they might have been right or, more than likely, I decided that it would not be in my interests to get rid of them. I take a sensible management decision, but the clause does not make me do anything different. I do not see what it does. All the clause does is to give someone notice that if they were to take some unofficial action a sensible manager might be liable to take action.
Lord Campbell of Alloway: We are now coming to the heart of the problem. We are not concerned with the sensible, responsible employer; we are concerned with protection and fair play where there is an unfair, irresponsible employer. That is the problem, and it is worthy of further consideration. I do not withdraw my suggestion.
Lord Boyd-Carpenter: One always listens to my noble friend Lord Campbell of Alloway with great respect because he has great knowledge of the subject and his views are generally acceptable to the Committee. However, he is omitting consideration of what seems to me to be a practical difficulty of the amendment. Unofficial action is taking place. It is proposed to put on the employer the duty to warn each individual taking part in that action before he can be dismissed. If there is unofficial action of that type, the men may not be there. One of the obvious examples of unofficial action is when people do not come in to work. They may be at home, out or watching a football match. To put upon the employer the obligation to give a specific and definite warning to each individual before he takes such action is putting on him an excessive burden.
I tend to differ neither from my noble friend Lord Campbell of Alloway on the high principles that he advocates nor from the view of the noble Lord, Lord Murray, that sensible employers rarely take such action unless unduly driven to it, but on the purely practical aspect of the matter: it would be extremely difficult for an employer who wished to exercise the power to dismiss to do so because he would be required to chase every one of his workers around the town to give him a warning. That is not the real world.
Lord Campbell of Alloway: Before my noble friend sits down, perhaps I may make a point on the practicalities. That is one reason why I shall not support the amendment as drafted. It is why I have asked for consideration of the principle to be given.
Lord Boyd-Carpenter: That is another matter.
Lord Campbell of Alloway: That is, as my noble friend says, another matter. The provision is too tough as it stands. It should receive some further consideration. That is all I say. I accept the point made, but as it stands, the provision is impractical.
Lord Wedderburn of Charlton: Further to the point made by the noble Lord, Lord Campbell of Alloway, the noble Lord, Lord Boyd-Carpenter, may wish to reflect upon the way in which his approach differs from his noble friend's approach and, still further, from our approach—we believe that our amendment has even more merit—and from the normal English legal position. If one is at a tribunal fighting out the question whether a dismissal, or dismissal of a number of workers, is fair or unfair, that issue will in the last resort be decided largely by reasonableness. In that condition of reasonableness the tribunals and, more especially, the Employment Appeal Tribunal and the Court of Appeal, have, in many cases, inserted a requirement that a warning should be given. They do so—I am surprised at the noble Lord—in defence of the individual.
The individual is entitled to be warned, even if he is acting with a thousand others. Management can do that perfectly well, by practical means. Of course no one is asking it to do more than is practical. The noble Lord is arguing, not merely against the amendment but against the entire drift of the courts and the way in which legislation on unfair dismissal under all
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Administrations has been interpreted by the courts. It is the clause which is the exception. It is a blot on what is otherwise a comprehensive and positive area of law that we have built up in the past 20 years.
Lord Strathclyde: There is a certain amount of confusion over the amendment. There is a certain amount of confusion about the existing law and how within the Bill we have changed the rules concerning unofficial action and therefore the effect of the clause. I say that because my noble friend Lord Campbell of Alloway asked me to consider carefully the points of fairness and moral responsibility. I hope within the next few minutes to show that that point has been considered effectively, that the problem that my noble friend thinks exists does not, that the provisions are entirely fair and considerably improve the current law, and that the amendments are unnecessary.
Because of the confusion that I sense exists, I apologise for the fact that I shall be answering at some length so that all Members of the Committee will understand fully what is going on. The proposals in the Green Paper Unofficial Action and the Law to change the law to tackle the long-standing problem of unofficial industrial action won solid support.
An important element of those proposals was to make employees taking unofficial action liable to selective dismissal. To breach that principle risks undermining the key element in the Bill's proposals to deter unofficial action. I am aware that that is something that my noble friend Lord Campbell of Alloway fully supports: the right to selective dismissal rather than the former rather ridiculous choice—you either sack no one or you sack the whole lot.
We believe that the problem of unofficial action needs to be tackled. We believe that it is wrong to force an employer to choose between dismissing all or none of those taking unofficial action. The present law is no use to an employer who faces persistent unofficial action organised by one or two individuals if it requires him to sack every striker. What he and, in all probability, many of his employees may want is to be able to dismiss selectively some of those taking part in such unofficial action. If an employee is selectively dismissed, it will remain open to him, as now, to argue that his dismissal was unfair if he was not taking industrial action or his industrial action was not unofficial action. Those can in practice only be matters for a tribunal to determine on the full facts of any particular case.
Only if the employee was dismissed while taking unofficial action will the new Section 62A remove the tribunal's jurisdiction to determine the fairness of his dismissal. That is not an immensely radical change as some Members of the Committee have sought to make out. In practice, dismissal of those taking industrial action will be rare. Employers will continue to be guided by common sense and practical considerations. It must be right to do all that we can to deter irresponsible unofficial action.
The Committee will recall that the present law (Section 62 of the 1978 Act) removes tribunals' jurisdiction to consider the fairness of any dismissal if

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the employer has dismissed all of those taking industrial action at the same establishment on the same day. Where such dismissal has taken place, the loss of the right to claim unfair dismissal is automatic; that is to say, in such circumstances the tribunal does not have to consider any other aspect of the dismissal, such as whether the employer's conduct was otherwise reasonable. That is the law as it stands. In 1978, the Labour party did not regard that provision a being overly draconian—no notice, no appeal, straightforward dismissal.
These amendments seek to modify the provisions of the proposed Section 62A by making it necessary for the employer to give some kind of notice or warning before dismissing an employee while taking official industrial action.
Baroness Turner of Camden: Does the noble Lord not recognise that there is an enormous difference between selective dismissal which enables an employer to sort out people and a provision under which the employer has to dismiss all or none? Where an employer has to dismiss all or none, in most cases he will dismiss nobody. However, selective dismissal gives the right to victimise. That is what the discussion is about and that is why the Labour Government opposed the legislation.
Lord Strathclyde: I shall answer the point on victimisation in a moment. The issue remains the same. The principle under current legislation passed by the Labour Government is that if everybody is sacked, there is no appeal, no notice. That is the principle which noble Lords opposite seek to overturn with these amendments. That is not consistent.
Noble Lords should appreciate that there is no equivalent obligation on an employee to give his employer any kind of notice before embarking on the action. So any such provision would be a very one-sided requirement. In addition, there could be real practical problems for an employer in satisfying any requirement. For example, an employee taking unofficial industrial action might take steps to make it as difficult as possible—perhaps impossible—for his employer to give him any warning notice. If he succeeded in preventing such communication, or for as long as he did succeed in doing so, he could continue to take that action with no risk of selective dismissal. The ducking and diving to which that could give rise is obvious to us all.
Thirdly, these amendments are incompatible with the approach of the present law. I have talked about the current law and Section 62 of the 1978 Act, and I do not need to re-emphasise it. It is a principle of the law that if employees embark on industrial action, they put their jobs at risk. Section 1 of the Department of Employment guidance booklet Industrial Action and the Law: a Guide for Employees makes this quite clear. It says:
"An employee who is dismissed by his employer while taking industrial action may lose his right to claim unfair dismissal".
An employee taking unofficial action should certainly be no more protected against dismissal than an
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employee taking official action. It would be anomalous therefore to have some kind of notice or warning requirement in respect of the former but not the latter.
Finally, we should not forget that the Government have included in Clause 8(1) provisions which mean that if industrial action which has been official becomes unofficial by virtue of union repudiation, the union will have a period of grace which it could, if it wishes, use to get the message of its repudiation through to relevant members who will thereafter be liable to selective dismissal if they continue with the action. This is the point about victimisation and due notice.
We shall discuss later on the period of grace provisions in the context of other amendments. However, for the moment I believe it is enough to recall that they provide the opportunity for the union to take steps to ensure that its members know that action which may have been official has become unofficial. Bearing in mind that in such a case a union official will have been involved in the original call, it must be right to put the onus of informing members of the risks they run on the union, not on the employer.
This will not be a great burden on the union because unions are already required by Section 4 of the 1984 Trade Union Act to maintain a register of the names and addresses of their members. In addition, they will almost certainly be able to contact relevant officials who would be well placed to communicate with members as appropriate. There is nothing to stop a union seeking the employer's help too if that might also be helpful.
If we accepted the period of notice either in the amendment of the noble Lord, Lord Rochester, or that of the noble Baroness, Lady Turner, it would mean that strikers would know that they could always take unofficial action with impunity up to the point when the notice itself expired. Therefore if we were to accept these amendments, it would be an encouragement to take such actions. I have to say to the noble Baroness, Lady Turner, that it would be an encouragement because they could continually go out on so-called unofficial action, wait until the period of notice had almost expired and go back to work. Therefore they could not be dismissed.
The new Section 62A is part of the package of measures which the Bill proposes to help tackle the longstanding problem of unofficial action. If its terms help to deter and discourage employees from taking or continuing with such irresponsible action, it cannot but help to improve our industrial relations.
I should add that the Government do not believe that if these provisions become part of our law we shall see numerous cases of selective dismissal while taking unofficial action. We hope that there will be less unofficial action. It follows that in such circumstances there would rarely be cases where employers felt that they had no option but to make selective dismissals. However, where that course is felt to be appropriate, employers' ability to make use of the law to protect the interests of their business and the interests of other

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actual or potential employees whose jobs may be at risk from unofficial action should not be constrained in the ways proposed by these amendments.
I hope therefore that noble Lords opposite will not press these amendments, and that my noble friend Lord Campbell of Alloway, who is quite justly concerned about fairness and moral responsibility, will feel that my remarks will allay those fears.
6.45 p.m.
Lord Murray of Epping Forest: Before the noble Lord sits down, perhaps he will clarify the confusion that has arisen in my mind. He has drawn a distinction between official and unofficial action. In most unions —or all of them, for all I know—official action is action which is approved by the responsible authority within the union, typically the executive council. It is done at the request of a group of workers, a branch or whatever it might be.
Let us take the case where a large group of workers, perhaps the whole factory of 7,000 people, has requested approval by its executive to take official action. Those workers have been refused permission or approval by the executive. Nevertheless, they take a ballot in the proper way and engage in action which, although unofficial, is lawful as they are fully entitled to, as I understand it. Can the Minister inform me whether in those circumstances the workers would be liable to the penalties prescribed in this clause, even though they were taking totally lawful action, merely because the executive had decided not to approve the action? Would the noble Lord be in favour of that?
Lord Strathclyde: Under the Bill, official action is action, called for by a union official. That is the position with which we are dealing, and that is the distinction between official and unofficial action. The great advantage about unofficial action, is that the employee has a choice. If employees refrain from unofficial action, there will be no grounds to enable an employer to victimise anyone by virtue of the provisions in Clause 8 of the Bill.
Lord Murray of Epping Forest: Perhaps I may pursue the point with the Minister. No official is entitled to make an action official unless it is provided for in the rules of the union. However, even if that is ignored and no official has been involved either in giving or withdrawing the permission, the action is taken by a group of workers which does not contain an official of the union as defined by the rules. Can the Minister say whether he approves of the employer sacking people without a moment's notice indiscriminately, without appeal, for taking lawful industrial action after a ballot?
Lord Strathclyde: I do not think that the problem arises. The choice is surely whether it is official action or unofficial action. It is not for me to decide what is official and what is unofficial action. It will be up to the tribunal to decide whether or not the employee has been dismissed correctly. That is the tribunal's decision, not mine. All we are saying is that where there is unofficial action and the employer chooses to
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dismiss an individual striker, the employee has no right to go to a tribunal. Of course, if it is a case of official action, the matter is entirely different.
Baroness Seear: The noble Lord, Lord Murray of Epping Forest, made an important point. The noble Lord, Lord Strathclyde, is really saying that the only action that the Government will accept as proper action is union approved action. However, the noble Lord, Lord Murray, made the point that it is perfectly possible for a group of workers to run a ballot and therefore to have a legally endorsed right to strike, although they may be at odds with their union as to whether the union is prepared to make that action official.
The noble Lord, Lord Strathclyde, is really saying that as far as he is concerned what matters is a union's right to make a strike official, not the legal process of holding a ballot. I should have thought that the Government would be concerned with the fact that a ballot had been properly handled and would be in favour of such a ballot. If the Government are not in favour of such action, will the Government say that they will not support the right of workers to call such ballots when they are at odds with their union? We might be talking about a militant trade union at the top end of the scale and a reasonable group of workers on the factory floor who are at odds with their union but are legally in the right. Would the Government back the union concerned and not the workers in those circumstances?
Lord Campbell of Alloway: I believe, with respect to the noble Lord, Lord Murray, that we are getting into a state of confusion. If one looks at Clause 7(5) one finds that it states:
"'specified person' means a person specified … in the voting paper for the ballot in accordance with section 11(4A) of the Trade Union Act 1984".
The Act shows that a ballot must be called by some official of the union. Such an official may be the president, the secretary general, or any other official of the union who is a paid official. I may be wrong; I am open to correction. However, as I understand the position, we are only concerned with ballots that are called by a union. I do not believe that the hypothetical position of a group of men who are dissatisfied with their union and who organise their own ballot comes within the remit of the legislation at all.
Lord Wedderburn of Charlton: Before the Minister replies to all these points, I should put a few more. The example given by my noble friend Lord Murray illustrates the way in which this extraordinary jungle or thicket of legal rules is getting more and more dense. It would make a works manager's hair stand on end. I agree with the noble Lord, Lord Campbell, that ballots are only allowed within the provisions of the 1984 Act, and now under Clause 6 of this Bill. As the noble Baroness, Lady Seear, said, what happens in the case of a refusal to take action on the part of the authority that the union regards as its authority—I mean by that the executive—under the rule book, but where the workers think they have a reasonable grievance? A local official or a shop steward acting

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quite outside the rules may then approve a ballot. Would the Minister consider that to be a proper ballot under the terms of the 1984 Act and of Clause 6 of this Bill? That matter is not at all clear to me.
Let us take the example of a shop steward, as he is an official under the terms of Clause 6. If a union has repudiated, according to its structures, a stoppage, but the shop steward approves of the stoppage and urges its continuance, would he not be authorising, on behalf of the union, an action that would prevent an employer from dismissing employees under the terms of Clause 8 and new Section 62A, because Clause 6 states that a shop steward has an authority to act for the union?
I have further points but I hesitate to put them. I can only think that these matters must make the Minister ponder whether the provisions of the Bill are a good recipe for sensible industrial relations.
Lord Dormand of Easington: I have a further point to add to the points which the Minister will have to answer. There are a number—perhaps a large number —of plants, offices, factories and workplaces where there is no union.
Lord Strathclyde: We have strayed from the amendments that we were discussing which deal with the matter of due notice and the problems of appeals to a tribunal, victimisation and other such matters. We have now returned to Clause 6. I am quite happy about that. However, I should make some points clear. Action which is taken only by non-union members is not unofficial action for the purposes of this clause. However, action taken by union members, which is not organised by a union official, is unofficial, whether or not it is balloted. That is the main point here.
When we were discussing Clause 6, we decided that a union could decide whether or not action was to be official. However, if a union decided that action was to be unofficial, it had to repudiate the action and advise the local office and the people involved in the action that it was unofficial action. Those people would be warned, in the case of unofficial action, that if they were to take action after the period of grace of a full working day they could be liable to be selectively dismissed. We have already agreed that in Clause 6. However, that is not what we are talking about under this amendment. We are discussing whether the due notice of the period of grace is sufficient. I contend that it is, and I hope that I have convinced the Committee of that.
Lord Rochester: The noble Lord has not convinced me and I do not believe he has convinced many Members of the Committee. I am grateful to all Members of the Committee who have taken part in the discussion and for the support that the amendment has received. I am particularly grateful to the noble Lord, Lord Campbell of Alloway, for having the courage to say what he did.
I shall comment as briefly as I reasonably can on some of the points that have been made. The point raised by the noble Lord, Lord Renton, was effectively
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demolished by the noble Lord, Lord Murray, with all his experience in these matters, who made it plain that even someone who was found guilty, so to speak, of the most serious misconduct that merited instant dismissal would at least have a remedy in going to an industrial tribunal.
The only group of people who do not have that remedy are people taking part in unofficial action. As the noble Baroness, Lady Turner of Camden, made plain, that position is made much worse by the provisions of this Bill. In future an employer may single out any individual who has taken part in industrial action in this way.
The noble Lord, Lord Boyd-Carpenter, said that some chaps may disappear and just go home. In that case, what is to stop written notice being given to those people in the form of a warning in much the same way as a union under this Bill has to give written notice of repudiation of unofficial action? There has to be a period of at least 24 hours as I understand it—
Lord Strathclyde: One working day!
Lord Rochester: There has to be a period of one working day between the notice of repudiation being given in that way and the time when people need to be aware of that repudiation and can therefore consider or reconsider their position.
The noble Lord, Lord Wade of Chorlton, spoke, as he fairly can, of the good employer. I have no doubt that he would not dream of dismissing somebody in the circumstances that we are considering now. However, as has been said, the law must cater not for the good employer but for the bad employer. That is what the amendment seeks to do.
The noble Lord, Lord Murray of Epping Forest, also said that he feared—and I share his fear—that if the clause is not amended substantially there will be an explosive situation. I can well see that happening. With all respect to a number of noble Lords without, if I may say so, very much industrial experience, I do not believe that there is sufficient understanding of what causes groups of people in factories to take unofficial action.
I could go on, but it is quite plain that there is a very serious difference of opinion between the two sides of the Committee on this subject. The noble Lord, Lord Strathclyde, has not answered the essential point that someone may now be singled out for dismissal for taking unofficial industrial action. Unless the amendment is accepted he can be instantly dismissed, without warning, and in circumstances in which he is unable to claim that he has been unfairly dismissed.
I still hope that in the light of the discussion, and particularly the points made by the noble Lord, Lord Murray of Epping Forest, before I take a decision as to what to do about the amendment the Minister will indicate to the Committee that after all he is prepared to accept the advice of his noble friend Lord Campbell of Alloway and reconsider the whole position in relation to the amendment before the next stage.
7 p.m.
Lord Campbell of Alloway: Before he sits down will the noble Lord allow me to comment? Having listened to the debate I realise that there are problems with the drafting of the amendment. There are no problems about the principle. Therefore, would it not be wise for him not to press the amendment in its present form but to reserve his position for a later stage? It is entirely a matter for the noble Lord, but although I support the principle, in view of certain things that have been said I find it a little difficult to support the drafting.
Lord Rochester: I am sorry that the noble Lord should take that view. We are at the Committee stage and are debating the issue as a matter of principle. I should have thought that it was for the government spokesman to indicate whether he is prepared to reconsider the matter before I take a decision. My decision may differ depending on his answer.
Lord Strathclyde: I am sorry that my noble friend Lord Campbell of Alloway has not been entirely convinced by my words and that he feels that the greatest problem with the amendment is a drafting problem. That may be true. Of course it will ultimately be up to the noble Lord, Lord Rochester, to decide what he wishes to do about the amendment.
Perhaps I may recap. Under the current law an employer has the choice of sacking all of his workers or none of them. If he sacks all of them none of them has a period of notice; none of them can go to a tribunal. That is the law as it stands at the moment. It is the law as passed by the last Labour Government in 1978. We have corrected the anomaly that one has to sack everybody; there is now selective dismissal. We have created an effective period of grace—one can call it a period of notice if one wants—which is a full working day between repudiation by the union and the employer having the right to dismiss selectively without further notice. I take the point of my noble friend Lord Wade. It is in nobody's interest necessarily to do that.
Given the fact that there is already that period of grace, surely the point of the noble Lord, Lord Rochester, is already catered for. I have to be quite straightforward and say that I am not prepared to reconsider the matter.
Lord Rochester: I am thoroughly unconvinced by that last reply. The period of grace to which the noble Lord referred is the period between written notice of repudiation and the time when people on the factory floor need to be aware that they are taking unofficial action. The amendment has nothing to do with that. The amendment calls upon the Government to accept, in the interests of elementary justice and sound personnel practice, that before employees are instantly dismissed they should be entitled at least to a warning. I believe that they are entitled to much more but they should at least have that.
I shall not prolong the discussion. It is clear that there is a major difference between the Government and a large section of the Committee. I shall divide the Committee.
7.6 p.m.
On Question, Whether the said amendment (No. 45) shall be agreed to?
Their Lordships divided: Contents, 48; Not-Contents, 76.

Division No. 1

>CONTENTS

Addington, L.

John-Mackie, L.

Airedale, L.

Kilbracken, L.

Ardwick, L.

Listowel, E.

Avebury, L.

Llewelyn-Davies of Hastoe, B.

Bonham-Carter, L.

Lloyd of Kilgerran, L.

Bottomley, L.

Lockwood, B.

Campbell of Alloway, L.

McCarthy, L.

Carmichael of Kelvingrove, L.

Molloy, L.

Carter, L.

Monkswell, L.

Clinton-Davis, L.

Monson, L.

Cocks of Hartcliffe, L.

Murray of Epping Forest, L.

Dean of Beswick, L.

Nicol, B.

Dormand of Easington, L.

Pitt of Hampstead, L.

Ennals, L.

Prys-Davies, L.

Falkland, V.

Rochester, L.

Foot, L.

Seear, B.

Gallacher, L.

Stoddart of Swindon, L.

Galpern, L.

Tordoff, L. [Teller.]

Graham of Edmonton, L.

Turner of Camden, B.

[Teller.]

Underhill, L.

Hampton, L.

Varley, L.

Hatch of Lusby, L.

Wedderburn of Charlton, L.

Hollis of Heigham, B.

Whaddon, L.

Houghton of Sowerby, L.

Williams of Elvel, L.

Jenkins of Putney, L.

>NOT-CONTENTS

Ampthill, L.

Kimball, L.

Arran, E.

Kinnoull, E.

Balfour, E.

Kitchener, E.

Beloff, L.

Lawrence, L.

Belstead, L.

Leathers, V.

Blatch, B.

Lindsey and Abingdon, E.

Boardman, L.

Long, V.

Boyd-Carpenter, L.

Lyell, L.

Brabazon of Tara, L.

Mancroft, L.

Brougham and Vaux, L.

Masham of Ilton, B.

Caithness, E.

Merrivale, L.

Carnegy of Lour, B.

Monk Bretton, L.

Carnock, L.

Mottistone, L.

Cavendish of Furness, L.

Murton of Lindisfarne,L.

Chelmer, L.

Nelson, E.

Colwyn, L.

Northesk, E.

Constantine of Stanmore, L.

Oxfuird, V.

Cork and Orrery, E.

Pearson of Rannoch, L.

Cox, B.

Plummer of St. Marylebone, L.

Craigavon, V.

Rankeillour, L.

Dacre of Glanton, L.

Reay, L.

Davidson, V. [Teller.]

Renton, L.

De L'Isle, V.

Rodney, L.

Denham, L. [Teller.]

St. John of Bletso, L.

Dunrossil, V.

Sanderson of Bowden, L.

Elles, B.

Skelmersdale, L.

Elliot of Harwood, B.

Strathclyde, L.

Elliott of Morpeth, L.

Strathcona and Mount Royal, L.

Elton, L.

Strathmore and Kinghorne, E.

Erroll, E.

Swansea, L.

Ferrers, E.

Thomas of Gwydir, L.

Flather, B.

Thomas of Swynnerton, L.

Goold, L.

Trumpington, B.

Greenway, L.

Tryon, L.

Henley, L.

Ullswater, V.

Hives, L.

Wade of Chorlton, L.

Holderness, L.

Wyatt of Weeford, L.

Hylton-Foster, B.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
The Earl of Strathmore and Kinghorne: I beg to move that the House do now resume. In moving this Motion, may I suggest that the Committee stage begins again at a quarter-past eight.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Code of Recommendations for the Welfare of Sheep
7.14 p.m.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington)The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington) rose to move, That the draft amendment to the code laid before the House on 21st June be approved [21st Report from the Joint Committee.]
The noble Baroness said: My Lords, I beg to move. With your Lordships' permission, I shall speak also to the Welfare of Livestock Regulations. The regulations have two purposes: first, to lay down certain provisions which will apply to the keeping of all livestock on farms; and secondly, to make some provisions that will only apply to certain types of animals. We have carried out extensive consultations on the proposals and they have been widely welcomed. I shall take a moment to describe briefly the background to the proposals.
Animal welfare is traditionally protected and promoted by means of the welfare codes made under the Agriculture (Miscellaneous Provisions) Act 1968. The codes are not obligatory but may be used in evidence against anyone charged with the general offence of causing unnecessary pain or unnecessary distress to farm livestock. A breach of a code recommendation will tend to establish guilt. All this is laid down in the 1968 Act.
The welfare codes provide a wealth of valuable advice to farmers on how to keep and look after their animals. In some areas, however, it is necessary for the codes to be reinforced by legislation. We already have, for example, the Welfare of Calves Regulations 1987. The regulations now before the House give the force of law to further provisions which have up to now been covered in the codes.
I might add that the code system is being increasingly recognised in Europe as a most sensible approach to welfare. I expect that future welfare proposals in the Community will be based on some necessary statutory provisions backed up by welfare codes, in line with the system that operates successfully in the United Kingdom.
We are acting here on the advice of the Farm Animal Welfare Council in its interim Statement. The Government responded positively to the council's recommendations and the proposed regulations are the result of the council's advice, our subsequent consultation of interested parties and further work within my department. The regulations are technical in nature and cover many aspects of welfare. I do not therefore intend to mention every part of them,
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although I will, of course, try to deal with any specific points that may arise afterwards. The items in the welfare codes, which are now being put into legislation in these regulations, concern detailed requirements on important matters such as lighting and construction of livestock buildings and the provision of food, water and bedding for farm animals.
A significant section of our proposal is aimed at raising the consciousness of stockkeepers to welfare by promoting the welfare codes. It is our intention that stockkeepers must have access to any relevant codes, and they can be obtained free of charge from the agriculture departments. We intend that they should be made aware of the codes and also that they should receive instruction and guidance in them. I consider that this, perhaps more than any other part of the regulations, should have a major effect on attitudes to animal welfare.
Before leaving the regulations, I will mention that they also impose a ban on the use of equipment that immobilises animals by passing an electric current through them. While this procedure certainly does immobilise animals, there is no guarantee that they are rendered insensitive to pain at the same time. Of course, while immobilised in this way, they cannot express any reaction to pain. In August 1988, the Farm Animal Welfare Council recommended that the procedure should be banned, except when carried out as part of an experiment licensed under the Animals (Scientific Procedures) Act 1986 and these regulations implement that ban.
The welfare code for sheep was revised only last year as a result of recommendations made by the Farm Animal Welfare Council. During the consultation exercise, it was decided to go further than the council's recommendation that electric mesh fencing should not be used with horned sheep. The revised code said, in paragraph 24, that,
"mesh fencing should not be used for horned sheep".
At the time that the revision was debated, it was not realised that this recommendation imposed an impossible burden on some sheep farmers and is also unnecessary from the point of view of the sheeps' welfare. Quite simply, there are many miles of mesh fencing used with horned sheep. Alternatives, such as tensioned wire fencing, are costly and, in some areas where the ground is hard and stony, are virtually impossible to erect. There is also now a question as to whether there is any real welfare risk from the use of such fencing. If the code paragraph remains unaltered, those farmers using it are concerned that they are technically in breach of a code provision.
We therefore feel that it is only right for the code to return to the original proposal from the Farm Animal Welfare Council and say that electric mesh fencing should not be used with horned sheep. The new text of paragraph 24 does, however, highlight the particular care that must be taken if any type of mesh fencing is to be used. My department will continue to monitor the use of different forms of fencing with sheep and will consider whether further action is needed if any welfare problems become apparent.
The measures before us today cover a wide range of welfare issues. I am indebted to the Farm Animal Welfare Council on whose advice we are acting. The introduction of these measures in Great Britain in no way detracts from our policy of seeking the widest possible welfare improvements on a European Community basis. We have thought it right, however, not to delay the introduction of the regulations pending agreement in the Community. The regulations cover issues that are basic, good farming practice and will not impose any significant burden on farmers who already take good care of their stock. Those who are not welfare conscious will have to take steps to come up to the standards of the rest. I commend the measures to your Lordships.
Moved, That the draft amendment to the code laid before the House on 21st June be approved [21st Report from the Joint Committee].—(Baroness Trumpington.)
Lord Gallacher: My Lords, we are grateful to the noble Baroness for speaking to both measures. She dealt with them in reverse order. With the leave of the House, I shall briefly deal first with sheep and secondly with the Welfare of Livestock Regulations and the prevention of cruelty to animals in general; in other words, animals on the farm. When the Chair comes to put the measures, they will no doubt be put separately so that we can all go home contented and happy.
There is little to be said about the amendment to the code of practice for sheep. We agree with what is suggested, particularly in view of the widespread consultation that has taken place. We are particularly grateful to the noble Baroness for the assurance that, in spite of the small change being made regarding mesh fencing, which is the main and only purpose, there will be continuous monitoring of mesh fencing for sheep. That is desirable per se and in view of the continued growth—not always with the approval of the European Community—of the sheep population in this country.
The regulations for the prevention of cruelty to livestock on the farm are comprehensive in scope. Having read paragraph 3 about the requirements for the welfare of livestock, with all the little as and bs, I counted some 19 requirements. Admittedly, they refer to all categories of animals, not simply to one. The comprehensive nature of the code is quite remarkable. I am not surprised that it is looked on favourably in other countries, including Community countries, particularly in view of the fact that it has evidential status only. Nevertheless, it is an important document having regard to public concern about the care of livestock.
I am mindful of the fact that the code will apply across the board to farms large and small. While one can see the large farm coping beautifully with those aspects of the code which are of interest to it, the smaller farm may have difficulty because it may not have the foreman or working manager to point out the requirements of the code, although many of the requirements are instinctive and should come
500
naturally to any good stockman. Nevertheless, I hope that consideration will be given by the Ministry to the presentation of the code to farmers.
The Ministry of Agriculture has considerably improved its presentational qualities in recent days. I hope that that may extend to the presentation of this measure so that, instead of a list of requirements from 3(a) to 3(p), we may have some illustrations that will be of considerable assistance by way of highlighting the text. That said, we support both measures and will so signify when the Chair puts them to the House.
The Viscount of Falkland: My Lords, we on these Benches wish to thank the noble Baroness for explaining so clearly the proposed changes. They seem to us to comply absolutely with the highest standards of stockmanship and animal welfare to which we all aspire in this country. We hope that, as a result of the changes, those who are responsible for sheep will be able further to improve the standards that prevail.
Baroness Trumpington: My Lords., I am most grateful to both noble Lords for their excellent reception of the measures. I must admit to the noble Lord, Lord Gallacher, that I wrote my speech before the Order Paper was printed and I omitted to check the order. However, I am glad that both noble Lords recognise the importance of the measures, particularly in view of the public concern mentioned by the noble Lord, Lord Gallacher, which I certainly share. All sensible people feel the same way about the matter.
The requirements of paragraph 3 are common sense and fit pretty well every farm, whether large or small. However, it is correct that the requirement for instruction applies only to the stockkeeper and not to the single farmer. A stockkeeper or a single farmer should not feel bereft of the need for more help in order to comply with the regulations. I commend the measures to the House.
On Question, Motion agreed to.

Welfare of Livestock Regulations 1990
7.27 p.m.
Baroness Trumpington Baroness Trumpington rose to move, That the draft regulations laid before the house on 21st June be approved [21st Report from the Joint Committee]. —(Baroness Trumpington.)
On Question, Motion agreed to.
Viscount Ullswater: My Lords, I beg to move that the House do now adjourn during pleasure until 8.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.27 to 8.15 p.m.]

Employment Bill
House again in Committee on Clause 8.
[Amendment No. 46 not moved.]
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 47:
Page 9, line 7, at end insert:

501
("(1A) Subsection (1) does not apply to industrial action taken in contemplation or furtherance of a dispute which relates wholly or mainly to the conditions of work of employees taking part where it is reasonable for such employees to believe that the working conditions give rise to a danger to their health or safety.".
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 48. This amendment raises the question whether workers who stop work in the face of what may be called reasonably appreciated danger to life or limb at their place of work in order to have the danger rectified engage in industrial action so that the employer is thereby empowered by Clause 8 to dismiss any of them whom he chooses at his whim.
The number of industrial accidents is again on the increase. Few things are more important to the individual worker—indeed to all of us—than that he or she should not be subjected to the risk of injury by unsafe working conditions nor indeed to unreasonable dismissal for stopping work in the face of them. The Government chose in another place to fight this issue on a legal ground. It is necessary to meet it on that level. As it is an argument about the law, I must do so with proper care.
The Committee in another place has already been presented by the Government with the proposition that workers who face an unsafe condition at their workplace have some right to stop work. The Government's argument has been that a stoppage at work by reason of unsafe working conditions, with the obvious purpose of pressing the employer to make it safe in the normal case, is not industrial action at all within Section 62 of the 1978 Act and therefore has the same meaning within this clause and does not trigger the employer's powers given by the clause.
In answer to that argument I advance two submissions on behalf of these Benches. First, the proposition is at best doubtful and probably wrong as a matter of English law as the law and the clause stand and to achieve our common objective, which appears to be to ensure that workers who stop work in face of danger at the workplace are not regarded by the law as engaging in industrial action making them open to selective dismissal, the Government should accept an amendment along the lines at least of Amendment No. 47 or Amendment No. 48. The latter states quite simply that a refusal to work in unsafe conditions is not to be regarded here as industrial action. Secondly, I submit that there has been for the past 12 months a need for legislation to make this position absolutely clear by reason of our Community obligations under Directive No. 391 of 12th June 1989.
As to the first argument, based on domestic law, the Government's position rested on the proposition that it was illegal to work or to require a worker to work in an unsafe workplace.
That conclusion sometimes rested on and derived from the law of contract and sometimes from the criminal law. The argument that the employer would be giving the employee an unlawful order if he ordered him to work in conditions of danger was adopted by
502
the Minister of State, Mr. Eggar, in the following ways. First, at col. 237 at Committee stage in another place on 1st March he said:
"An employee cannot be required to work in breach of criminal law, so workers cannot be required to breach the Health and Safety Act 1974".
Secondly, the Minister broadened the argument into that based on contract. At col. 391 on March 20th in the Official Report in another place he said:
"It is unlawful to work in unsafe conditions … simply calling on employees not to do unsafe work or not to work in unsafe conditions could not in itself amount to an inducement to breach of, or interference with, the performance of a contract.
Reasonable as those propositions are, on the existing precedents they are by no means a clear, correct statement of English law.
There are remarkably few precedents in regard to the law of contract. The most important which are usually discussed are two decisions in 1930 by your Lordships' Judicial Committee involving the Ottoman Bank. I quote from the authoritative study, The Modern Contract of Employment, by Dr. Freedland. He says that before there is a breach of contract by the employer,
"quite a high degree of unanticipated danger seems necessary to substantiate a claim of repudiation".
That is repudiatory breach by the employer. It is therefore at best a very limited area under the common law.
Even if such an order—that is, an order by the employer to employees to work at a place which is unsafe or reasonably believed to be so—were a repudiatory breach of the contract by the employer, it is not at all clear that the employees can suspend work in face of such an unlawful order without themselves bringing the contracts of employment to an end. I stress that point to the Minister because the argument is not covered in another place.
The common law leans against unilateral suspension of contracts, rightly or wrongly. There is no precedent giving the employee the right to suspend the contract by ceasing to work in unsafe conditions and in the face of such an order rather than terminating it by accepting the employer's repudiation inherent in the unlawful order. If all that the employee has in common law is merely a right to treat the contract as terminated in face of such a breach—that is, the unlawful order to encounter danger—he has gained little, lost his job, and there is even added need for legislation.
Moreover, when we approach the interpretation of the recent legislation and the cases upon it—on which the Minister was kind enough to correspond with me —we find that in the area of unfair dismissal and strikes the courts have interpreted Section 62 of the 1978 Act by insisting that breach of contract is not determinative of the meaning of industrial action. Section 62 does not require that any breach of the employment contract should be part of the concept of industrial action on the one hand or indeed of a

503
lock-out on the other. That was confirmed recently by the Court of Appeal in the case of Express and Star v. Bunday, in 1988 Industrial Cases Reports, 379.
That may be why the Minister of State in the debate at Committee stage in another place modified his position. On 20th March at col. 393 he departed from his absolute certainty and averred that it was "extremely likely" that an industrial tribunal would hold a concerted refusal to work to be industrial action, and that it would "depend on the particular circumstances". That is quite different from the proposition that it is impossible for a tribunal or a court to hold that such a concerted stoppage of work could be industrial action.
The Government's position in Committee in another place rested upon the contention that there was no judicial decision or statement which held that stopping work in the face of danger is industrial action. In the Official Report in another place at col. 392, Mr. Eggar said:
"Failure to work in unsafe conditions has never been held to be industrial action in the past 19 years".
That interpretation of the law by the Government is, in my submission, erroneous.
It is true that the precedents are few. They begin with the case of Power Packing Casemakers v. Faust in 1983, where it was made clear that where workers had refused to undertake overtime which was voluntary —they were under no contractual obligation to do so —that was industrial action. But the Court of Appeal laid down the lines on which we should approach the understanding of the term "industrial action" in this context. Lord Justice Stephenson stated that if the worker,
"refuses because he and others who refuse with him hope to extract an increase in wages out of the employers because their business will be disrupted … that continued application of pressure is industrial action".
Later he states:
"The words 'industrial action' seem to me to cover even more clearly a refusal used as a bargaining weapon whether it is breach of contract or not".
The cases state quite clearly that any pressure on the employer, and a stoppage of work involving any pressure, is industrial action.
The Minster kindly wrote referring me to some of the precedents and stressing that the test is whether workers bring concerted pressure to bear on the employer. I entirely agree with him on that ground. However, the stoppage in the case of unsafe working conditions is not undertaken for academic purposes. It is invariably directed to put pressure on the employer to make conditions safe, as is his obligation. Pressure is the essence of the stoppage.
Moreover, there are earlier cases which controvert the Government's position. In Thompson v. Eaton Ltd. in 1976 employees surrounded a set of machines that were introduced by the employer without consultation or training. The court said that the argument had been put that the employers adopted a coercive attitude by applying disciplinary procedure to those employees. However, the court rejected the proposition that it was not industrial action. of course it was.
Later in 1979, in Marsden v. Fairer Stainless the Employment Appeal Tribunal accepted that approach and adopted the reasoning of Mr. Justice Kilner Brown, on which I rely, in an earlier case of Wilkins v. Cantrell in 1978. In Wilkins v. Cantrell the facts involved drivers who complained that they were told to drive lorries that were overloaded under the provisions of the Road Traffic Act 1930. That would be unlawful in two ways. First, such driving would be a crime; secondly, it would be a breach of contract by the employer giving them the order. Although there are passages in the judgment about which argument has subsequently gone one way and another, no one has ever controverted the clear holding of Mr. Justice Kilner Brown that when the employees took industrial action they were on strike within the meaning of Section 62.
It is a case where the loading of the lorries was supposedly in breach of the Road Traffic Act—a crime —and where the order to take them out would be a breach of contract by the employer. Yet it never occurred to anyone that that was not industrial action. There has been a line of comment on that case later which has never disapproved of that reasoning.
Workers who stop work for such a reason invariably do so in order to press a demand upon the employer that the unsafe system of work should be rectified. To achieve the result that the Government say they want—namely, that such a stoppage should be clearly not industrial action, giving the employer the added power to dismiss—some further clarification in the Bill is needed. Indeed, the Committee may conclude that merely by considering such cases and the reasoning in the judgments, that is an argument for making the law clear. I assure the Committee that there are a number of other cases that I have passed over without citing.
My second submission has a different dimension. On 12th June 1989, Community Directive No. 391 was adopted by the Council of Ministers. It is binding on the United Kingdom to put it into effect in our law. Article 8, paragraph 4, of the directive states:
"Workers who, in the event of serious, imminent and unavoidable danger, leave their workstation and/or a dangerous area, must not be placed at any disadvantage because of their action and must be protected against any harmful and unjustified consequences, in accordance with national laws and/or practices".
Paragraph 3 of Article 8 obliges the employer to,
"take action and give instructions to enable workers … to avoid serious, imminent and unavoidable danger".
Paragraph 5 requires the employer to ensure that the employees know of the appropriate steps to take to avoid the consequences of the danger.
It is manifest that if the Bill passes in its present state, although the Government argue that by implication it means that such stoppages are not within the scope of industrial action, it could, because of the uncertainties in the domestic law and the clear line of authority against the proposition of the Government, be seen to be, if not a breach, at least some kind of evasion of our Community obligations. It will not be at all clear to an unscrupulous employer —and they exist—that he is to be prohibited from

505
taking harmful action and possibly discriminatory dismissal of workers whom he—and sometimes the Government —call "troublemakers" who stop work in the face of what they say is a danger. If someone tells the employer that the new Act bans such dismissals he will ask, "Where does it say that?". That is the question that I ask the Minister. If the Bill does not say that, it would surely be unwise in the face of the specific words in the directive for the United Kingdom legislature to enact a Bill of this character.
I have looked at the correspondence between the Secretary of State and the TUC. There appears to be nothing which adds to the argument but, if the Minister corrects me, I shall be happy to look at it again. It is up to the Government to show in some way not yet thought of that without a shadow of doubt the Bill encapsulates the principles which the directive tells us we must adopt. It would be remarkable if this Committee passed the Bill as it now stands. I beg to move.
8.30 p.m.
Lord Rochester: I support the amendment. As the noble Lord has said, it attempts to deal with the vexed question of whether a collective refusal to work on grounds of perceived danger to health or safety constitutes unofficial industrial action. In another place argument on the point ended in deadlock, each side contending that the law was clear on the matter. However, from what I have heard tonight it appears to be anything but clear. At no time in another place did the Minister give chapter and verse for the Government's view that such a refusal does not amount to industrial action. The amendment seeks to put the matter beyond doubt.
I noted in particular the commendable provision that if employees who take part in industrial action are to retain the right to claim unfair dismissal it must be reasonable for them to believe that their working conditions give rise to a danger to their health or safety. I hope that the Minister will accept the amendment or give the Committee more convincing evidence to show that a reasonable refusal to continue working in unhealthy or unsafe conditions does not constitute industrial action.
Lord Strathclyde: These amendments relate to an issue about the terms of the proposed new Section 62A of the 1978 Act and, indeed, the present law on dismissal while taking industrial action. Both were debated at length during consideration of the Bill in another place. Throughout those debates the Government made clear the fact that we fully share the aim of ensuring that health and safety standards at workplaces are maintained or improved.
I doubt whether in the course of the next few minutes I shall be able to convince the noble Lord, Lord Wedderburn, that the Government's approach is correct. Nor, I fear, shall I be able to convince the noble Lord, Lord Rochester. It requires a belief—at any rate an understanding—that the current law is good enough to cover the points.
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As I have already explained, it would be wrong to allow such special protection for those who choose to take industrial action. I also have to say that even if the word "simple" was included in the formulation, there would still be no case for a revised amendment along those lines.
The objections are threefold. First, as a matter of good practice the law should not be encumbered with unnecessary provisions, since, as I have explained, it will work quite properly in the absence of any such clarificatory statement; including something on those lines could only confuse those who, quite properly, would believe that it must have had some more substantive rationale.
Secondly, including such a provision might actually afford less protection to an employee who did, indeed, simply refuse to work in unsafe conditions and who would be liable to dismissal at present or in future if his refusal was based on a genuine belief about such a risk but a belief which turned out to be misplaced. The terms of the amendment apply only to conditions which are unsafe. However, that is not necessarily the right test. I am sure that the noble Lord, Lord Wedderburn, would agree with that point. It is possibly a matter of drafting.
Thirdly, and again because it applies to conditions which are unsafe, the amendment might protect employees who stopped work for reasons quite unconnected with safety—for example, for pay dispute reasons—if their conditions happen to be unsafe. However, I shall give the noble Lord the benefit of the doubt. I am sure that that cannot be what was intended.
The noble Lord, Lord Wedderburn, asked about UK compliance with the EC framework directive on health and safety. Articles 8(4) and 8(5) of this directive adopted in June 1989 requires that workers who leave their job or take other action in the event of serious and imminent danger shall not be placed at any disadvantage. There is no problem about UK compliance with the terms of this directive by virtue of the provisions of the Bill.
The way in which the present law operates and the way in which it will continue to operate means that no employee can be fairly dismissed for simply refusing to work in unsafe or dangerous conditions. That is what the terms of the directive deal with. The Bill changes no aspect of this and only affects the position of employees taking unofficial industrial action.
Lord Wedderburn of Charlton: I am grateful to the Minister, because my intervention may save time. I have never understood the force of the word "simple" used in the Minister's kind letters to me and now in his proposition to the Committee. Am I right in believing that it means that if workers stop work in the face of a perceived danger and do no more, that is not industrial action? However, is it right that, if they stop work and put pressure on the employer by demanding to have the situation rectified that is industrial action? Is that the Government's proposition?
Lord Strathclyde: Perhaps I may deal with that point specifically. I believe that that is the case. The

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noble Lord has set it up neatly; that is precisely the case. However, I should add that no court or tribunal has ever found that such simple refusal to do unsafe work amounts to taking part in industrial action for the purposes of the law on unfair dismissal.
Lord McCarthy: I wish to be clear about the matter. Let us suppose that a group of 30 workers stop work and say, "This is dangerous. We shall start work again only when you put a guard up". It appears that because, 30 people are involved it is industrial action. If on the other hand one worker stops work and says, "I will not start work until you put a guard up", is that industrial action? Is it industrial action if the workers say nothing but look as though they do not wish to start work before the guard is put up? What is it that translates the situation? Is it numbers? Is it what is said? Is it intention?
Lord Strathclyde: There is a basic principle of health and safety legislation which is that it is illegal to demand an employee to work on a machine which is fundamentally unsafe. So the point made by the noble Lord is already dealt with.
I agree that where employees simply refuse to do unsafe work there will often be an element of pressure on the employer to rectify the situation. However, we do not agree with the conclusion drawn by the noble Lord, Lord Wedderburn, that that element of pressure in itself means that there is industrial action.
The amendment before the Committee is not limited to cases of simple refusal alone. In fact, it does not rely on a motivation test at all. I suspect that the formulation of the amendment is designed to allow scope for employees to take what is industrial action —that is what I suspect is behind this amendment—and therefore to escape liability to be dismissed on the grounds that what was done also involves refusal to work in unsafe conditions.
We would not propose legislation that we believed would in any way undermine health and safety at work standards. This Bill does no such thing. These amendments seek in one way or another to modify the provisions of the proposed new Section 62A of the 1978 Employment Protection (Consolidation) Act. I urge Members to bear in mind just what those provisions are about. They are part of a package designed to deter and discourage unofficial industrial action—and I stress the words "industrial action".
The intended purpose of Amendment No. 47 is clear enough. It would mean that, where employees taking unofficial industrial action could show that their action was wholly or mainly about a belief that their working conditions were unsafe, their employer could not selectively dismiss any of them without risking claims of unfair dismissal.
We believe, however, that health and safety problems should be resolved by employers, who have the primary responsibility under health and safety legislation, in co-operation with the employees who may be affected. Health and safety inspectors also have a role in terms both of investigating concerns
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about such matters and of advising on or securing such action as may be necessary to ensure proper health and safety at work.
That approach is, of course, very far from a position which implies that in such cases industrial action, and unofficial action in particular, is a proper response—a position which Members opposite have taken. If so, I have to say that the Government could not accept any such philosophy. However, it is really not necessary to debate such issues in order to see why this amendment is essentially unacceptable. If it were enacted it would simply drive a coach and horses through the proposed new Section 62A. It would put a premium on those taking unofficial action associating that action with some kind of health and safety claim. But we are not in the business, surely, of carving out some special protection for unofficial action in this way.
Moreover, the amendment is actually quite unnecessary. In explaining this, I should address myself to Amendment No. 48. The present legislation on dismissal while taking industrial action was enacted by the last Labour government. That legislation, which prevented industrial tribunals from holding that the dismissal of employees taking such action was unfair, made no special provision for industrial action taken on health and safety grounds. In fact, there was no reason to do so in 1978 and there is no reason to do so now.
We are sure that simple refusal to work in unsafe conditions or to do unsafe work would not be held by any court or tribunal to constitute taking part in industrial action for the purposes of the present Section 62 of the 1978 Act, or for the purposes of the proposed new Section 62A. It is clear from a number of decided cases that the question of whether an employee who has been dismissed was taking part in industrial action at the time of dismissal will be determined as a matter of fact. Furthermore, in the case of Faust v. Power Packing Casemakers, mentioned by the noble Lord, the Court of Appeal identified motivation aimed at bringing pressure to bear on the employer as a key element in determining that the employees were taking part in industrial action. Where an employee simply refuses to do unsafe work, however, there is no necessary implication that his intention is to bring pressure to bear on his employer. It follows that where employees stop work simply because they fear for their own safety, that would not, of itself, constitute taking part in industrial action.
The health and safety argument as a defence against unfair dismissal in terms of unofficial action is a red herring. There is a ploy here. I cannot believe that there is a serious misunderstanding of what the law states. I could be wrong. In that case, I hope that what I have said and explained at some length—I have corresponded already with the noble Lord, Lord Wedderburn, on this matter—will allay fears and that it will be realised that what we both want is essentially heading in the same direction but by slightly different means. In the light of those remarks, I hope that the

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noble Lord will accept that these amendments are neither necessary nor desirable and will accordingly withdraw them.
8.45 p.m.
Baroness Seear: I may be rather stupid about this but I still do not understand the position. Can the noble Lord explain once again? If an individual worker really believes that the job he is being asked to do is unsafe and he simply refuses to work and just sits there not doing anything, that is not industrial action.
Lord Strathclyde: Yes.
Baroness Seear: If a dozen workers just sit there, is that still not industrial action? It becomes industrial action if pressure is put on the employer either singly or as a group. Is not the mere fact that there has been a stoppage of work a form of pressure? That is what I do not understand. When does it become pressure? If the employer wants to get the work done—and that is what strikes are all about—and the employee sits there refusing to use the machine and the machine is rented at £1,000 per week, surely the employee is putting pressure upon the employer. The noble Lord seems to be indicating that that is not pressure. In that case when can a refusal to work be seen as pressure? I do not understand the distinction which the noble Lord is making.
Lord Strathclyde: I have a certain amount of sympathy with the noble Baroness because it is a difficult distinction to make. It is quite clear that, although there is an element of pressure in itself by not working because of a fear of working on unsafe machinery, that does not necessarily mean that it amounts to industrial action. That is the point.
Baroness Seear: The noble Lord says that it is the pressure which determines whether it is industrial action. Are we agreed about that? It is the putting on of pressure which makes it industrial action; is that right?
Lord Strathclyde: It is the intention behind the stoppage of work.
Lord McCarthy: How does the employer know? If the employer went to a tribunal, how would the tribunal know? The Minister is saying that there are two forms of pressure: one might be called simple elemental pressure, which is lawful, and then there is another kind of pressure. We are trying to define that which is complex. It seems to me that if an individual says that he will not work until a guard is put up because the situation is unsafe, that is simple lawful pressure. However, if he says that he will not work until the guard is put up because it is unsafe and he also says something else —let us call it X—X enables the employer, and would enable the tribunal, to decide that there is unlawful pressure. The Minister is nodding, which is helpful. We now need to know the nature of X.
Baroness Seear: I cannot see that there is any greater pressure than refusing to work. That is what a strike is all about. Let us suppose that there is a valuable piece of machinery which is eating its head off in the stables—to change the metaphor—the employer
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is continually paying for it, and the chap is refusing to work. I cannot think of any greater pressure. He is not going to take a hammer to the employer, although he may do to the machine. However, what greater pressure can be applied than a refusal to work? The noble Lord is saying that it is all right to refuse to work as long as there is no pressure. What is the difference?
Lord Boyd-Carpenter: This is a very interesting discussion, but can my noble friend tell me whether incidents in which this matter has arisen have occurred, or are they purely theoretical?
Lord Strathclyde: All the cases which we are talking about here are entirely and purely theoretical. No court or tribunal has ever found any difficulty in dealing with this subject.
Perhaps I may go back to the noble Baroness, and I thank my noble friend for asking that question. Although there is a difficult distinction to make, the relevant law and precedents indicate that there is no greater difficulty in deciding the difference between pressure and undue pressure. Simply stopping work as a result of working with unsafe machinery would be perfectly acceptable. However, many different issues are involved. Ultimately, it is for the tribunal to decide in the light of the facts of each individual case. Surely that is the point. If we put into legislation the fact that a legitimate defence is a belief that you are working in unsafe conditions, we shall have the most ridiculous cases.
Office workers may say that the air conditioning is not working, and say they will go on strike. That would be a legitimate defence. If working conditions are genuinely unsafe and affect the employees' conditions of work, then the tribunal would decide in their favour. If the Government accept this amendment, that in itself would be a defence. It would totally negate the ability of the employer to selectively dismiss the employee on the basis that it was unofficial action.
Baroness Turner of Camden: Would the Minister not agree that it would totally negate the opportunity of the employer to put into operation unsafe working conditions?
Lord Strathclyde: No. There is no prospect of an employer obliging his employees to work in unsafe conditions. That is a red herring and has nothing to do with this point.
Lord McCarthy: Before the Minister leaves that point, what does he say about that? Does he say that if the employer requires his workers to work in an unsafe place, the workers can stop work and still have the advantage of their contract, or do the contracts then come to an end?
Lord Strathclyde: It is illegal for an employer to require his employees to work on unsafe machinery. That is clearly the basis of the law as it stands. These amendments have nothing to do with health and safety and everything to do with allowing employees to take unofficial action and be protected for doing so.
Baroness Seear: The Minister cannot get away with that. I do not speak for the Labour Benches, but I am

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quite clear that there could be perfectly legitimate cases for going on strike which need protection and which have nothing to do with encouraging people to take unofficial action. I agree with the noble Lord regarding the undesirability of unofficial action, and so does. the noble Lord, Lord Wedderburn.
The Government are interpreting my motivation in a way which, if the tribunal so interpreted it I would go to the Employment Appeal Tribunal.
Lord Strathclyde: I have said this before: clearly where employees stop work simply because they fear for their own safety that would not by itself constitute taking part in industrial action any more than it would if they refused to go back to work in the same conditions simply because they continued to believe that they were unsafe. No court or tribunal—this is a point made by my noble friend Lord Boyd-Carpenter, and noble Lords opposite know this perfectly well—have ever found that a simple refusal to do unsafe work amounts to taking part in industrial action for the purposes of the law on unfair dismissal. That must be the point. That must allay the fears of the noble Baroness, Lady Seear.
Lord Rochester: It does not. The noble Lord speaks of a remedy being to go to an industrial tribunal. Is it not the case that if somebody engages in what, in the view of the employer, is unofficial action—whether or not in the view of the employee or employees taking that action it is on grounds of perceived danger to health and safety—the employer has it within his power instantly to dismiss that person or those persons? The possibility of their going to an industrial tribunal cannot then arise.
Lord Strathclyde: As I understand it, that situation has not changed from the current law. We are talking about a new distinction of unofficial action. We have gone through what makes unofficial action and what does not make unofficial action. It is for the union to repudiate action which could be official. If it is official, there is no problem. If the union repudiates it and it becomes unofficial, then the employee knows full well the consequences of that decision.
Lord Wedderburn of Charlton: With respect to the Minister, there is no point in continuing with this debate. We intend to come back to this matter on Report. When the Minister and his advisers—and no doubt other Ministers—read the discussion, I have no doubt that they will reconsider the position.
This is a very serious matter. I say to the Minister —intending no disrespect to him—that it is a matter for consideration whether or not the Lord Advocate or the Lord Chancellor should answer for the Government on this matter on Report. I say that for this reason: in our view the Minister swept the directive aside. We felt that this was so and are entitled to have feelings.
I shall put my point briefly because I want to move on. I say this quite frankly to the Minister. There is nothing in the same brief as appeared in the Commons that adds very much to the argument. The directive makes no distinction about the motivation of the workers who stop work. The directive says that a
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worker faced with serious, imminent and grave danger can stop work. That is it. If the Minister thinks that the processes of Brussels have by implication left some curious subjective test limiting the principles of directive which are binding upon us, then we must have someone else to answer.
Lord Strathclyde: I must answer this point. This aspect of the Bill is not about health and safety at work. It concerns unofficial action. The directive is one thing. We have no problem with the British law on the health and safety directives. This aspect of the Bill concerns unofficial industrial action and nothing else.
Lord Wedderburn of Charlton: I appreciate the Minister's point but it covers only a small part of the ground, for this reason. I am sorry to be drawn on this point, but we must have it on the record in view of that intervention.
This Bill will give the employer a new power of disadvantage to the worker; the worst disadvantage a worker can have. I see that the Minister shakes his head. But it is a new power of selective dismissal. That is in the Bill. We are agreed. The employer can exercise that power in certain types of industrial action—unofficial action, and so on. Therefore, if he can exercise that power in the face of industrial action which is within the ambit of the directive's rights for workers faced with health and safety dangers, there is an issue on the directive.
The Minister gets out of that by saying that it is not industrial action. I shall come to that in a moment. We say that is not correct. The directive does not distinguish between a stoppage of work in face of a grave imminent peril at the workplace where workers are differently motivated. I take the example that the noble Baroness mentioned. Perhaps the Minister will allow me a moment to explain it to him. The 30 workers posited may be motivated in 30 different ways. Two may intend to put pressure on the management; two may not, and the other 26 may be doing what workers do.
I say this to the Minister. Workers stop work in the face of danger. I must tell him that years ago I knew workers who stopped work in face of danger. One was not quick enough and lost a limb; the rest were dismissed. The Minister is not taking this problem seriously enough, and that is what the directive is about.
Lord Strathclyde: The directive is clearly about self-preservation, where there is danger, and only that. That is not what we are discussing. Where there is clearly a genuine perceived danger over self-preservation, no court or tribunal in this country has found that to be industrial action and none will.
Lord Wedderburn of Charlton: With great respect to the Minister, the fact that there is not a case is the worst argument that a lawyer can advance. One then has to argue on principle. I can say that there is no case and therefore our propositions are correct. It is equally ludicrous.
I shall stay with the directive for a moment. If the Government are to say that this legislation has no relevance to Article 8 of the directive of 1989, then it

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should be said after the fullest consideration—this point was not raised in another place and perhaps I should have made that clearer, that the new point is the directive.
We shall leave the matter there and come back on Report hoping that the Minister has made all the necessary consultations, as I am sure he will. I do not withdraw in any way what I have said regarding the manner in which the government reply should come.
It is necessary to answer the particular points raised, which are really domestic legal points. The nub of the discussion was the question of what is industrial action. It is a combination or group of workers who stop work. That is what industrial action is. Everyone is agreed on that. The Minister agreed in his correspondence with me, and I believe at one stage this evening, that any stoppage—breach of contract or not, crime or not—which puts pressure on the employer is industrial action within Section 62 and Clause 8.
At one point the Minister said that a simple stoppage is not industrial action. He then said that a stoppage without pressure is not industrial action. Later he said that a stoppage without undue pressure is not industrial action. It is always possible for a tribunal to find that the Minister is right. Of course that is so, but I do not take the position that the Minister takes that there is such a thing as 100 per cent. certainty in these matters. There is an argument of principle which, in my view, does not lead in his direction.
However, taking those three different propositions, if I go to a group of workers who are faced on a construction site with dangerous machinery, how am I to advise them? I shall say, "Well, on one view, as the cage comes down if you exercise a simple stoppage that is all right". The workers say, "But perhaps that is pressure". The noble Baroness, Lady Seear, is right, it is pressure on the employer to stop the cage falling on them. I then say, "Well, provided you do not exercise undue pressure". What kind of law is this? This is the test on whether they can be dismissed, one by one. What kind of law is it that the Government are putting on the statute book?
Of course we disagree on policy. Noble Lords may have noticed that I read rather more of my opening speech than is customary—I believe I am not supposed to say that—because I wanted to have the propositions recorded accurately. I am not concerned with some esoteric principle or a curious interesting discussion, as one noble Lord said. I am interested in the fact that increasingly people are being injured at work, in offices as much as in factories and so on. For the Government to legislate in a way which is at least arguably in breach of the directive—it is at least that —and in a way that makes it impossible to advise people on how and why they can stop work in the face of danger, baffles the mind and leaves one exhausted. Therefore, I shall beg leave to withdraw the amendment with a view to bringing this back on Report as a major item.
9 p.m.
Lord Strathclyde: Before the noble Lord finally withdraws the amendment, I make two brief points. He twice referred to injuries and the fact that they have increased over the past few years. That is not the case so far as I can see. There has been a steady decline in fatal injuries since 1979. The incidence of fatal accidents has been considerably reduced over the past 10 years. That is important.
Workers who take unofficial action will be liable to selective dismissal. It will be for a tribunal to decide whether workers so dismissed were taking industrial action. Simple refusal to work in unsafe conditions is not industrial action. I do not think that I can convince the noble Lord, Lord Wedderburn, because he wants to see something on the face of the Bill, but that is our genuine position. We do not want people to be selectively sacked because they will not work with unsafe machinery. We stand by what we say.
Lord Wedderburn of Charlton: The Minister repeats the point he made, that a simple stoppage is not industrial action. We want to know what is a simple stoppage. Is it a stoppage that puts no pressure on the employer? How is it that a stoppage at an unsafe workplace does not put pressure on the employer to put it right? That is what we want to know. These questions can be answered on Report because the Minister has not answered them tonight. If those questions cannot be answered, there is nothing left of the ground on which the Government stand. I appreciate that there may be cases when industrial tribunals have the last word, but workers will hardly be encouraged to go to tribunals in the face of the speech made by the Minister, the speeches made elsewhere and, if I may say so, the letter from the Secretary of State to the TUC which said that refusal to do work will, in practice, only rarely be an appropriate response to an unsafe workplace.
The Minister said that injuries at work have been falling since 1979. I wish the Minister would not say that. He must know that the statistical base was totally changed and the reporting requirements totally changed in, I believe, 1983; certainly at about that time. Therefore, it is extremely difficult to make comparisons. I am saying that on the figures since 1983–84 there is not a downward trend. There is great argument about the underlying trend but there is an apparent increase in the number of types of injury. That is without exception. No doubt the Minister can also explain on Report the 1979 link and thereby do what no statisticians have been able to do—that is, make a link between the 1979 and the 1984 statistics. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 48 not moved.]
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 49:
Page 9, line 7, at end insert:
("(1A) Subsection (1) has no application where the industrial action relates wholly or mainly to an an order or other act which it was reasonable for the employees to believe constituted the breach by the employer of a duty affecting some or all of the employees taking part which is imposed on

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the employer by the Health and Safety at Work Act 1974, the Equal Pay Act 1970, the Sex Discrimination Act 1975 or the Race Relations Act 1976.").
The noble Baroness said: The amendment seeks to come to terms with the fact that an employer can act in breach of the law, and act wrongly, and not simply employees and trade unions as the Government appear to believe. It also attempts to deal with what happens in real life rather than in the back rooms of government researchers.
Many unofficial strikes, as has been said repeatedly this evening, happen spontaneously in response to management actions on the shop floor. Many are settled quickly, often without recourse to union machinery locally. Many issues are connected, as has been said, with health and safety. On this very difficult issue I do not want to go over the long arguments we have just had; but I, for one, would be happier if, generally speaking, workers were much more health and safety conscious than they are. Perhaps then we would start to see a decline in industrial injuries and fatalities instead of, as in some industries, an increase. That is particularly true of the construction industry. I have mentioned that point on a number of occasions in this Chamber in a series of Questions.
I can assure the Minister that workers do not simply walk off jobs at the drop of a hat. Often they will put up with conditions that should not be tolerated. I know that from my own experience. I can remember when I was an official being told by anxious workers to leave matters alone because the money was good. Of course, I was not prepared to accept that. Often the workers were anxious because the employer was the only large employer in the neighbourhood. Therefore, it is not an easy matter. People are not bursting to take action, even to protect themselves and their families. When they do, it frequently takes the form of action short of strike action. They may turn up for work but refuse to work on a particular site or to handle machinery that they believe has inadequate protection. Such activity can often be sparked off by an incident at work, an accident or perhaps a near-miss. The employer may have been operating in breach of the Health and Safety at Work etc. Act for some time, but an incident will convince the workers that it should not be allowed to continue.
So far as I can see, judging from our previous debate and the extremely unsatisfactory response we received from the Minister, the workers who indulged in walking off the job in such situations would not have any protection. The employers could get rid of them and might sort out the people they believe are the ringleaders. The point is not that they were dismissed but that having been dismissed, under the legislation they would not have a right of appeal. I want to emphasise that because we keep on hearing about dismissals and so forth.
The point at issue is that dismissal takes place and there is absolutely no right of appeal; there is nowhere that people can go. That is absolutely disgraceful. It may be even more disgraceful when the employer is perhaps in breach of legislation such as the Health and Safety at Work Act or Equal Pay Act. There may be
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a dispute about equality in employment. Sparked off on the shop floor, there may be an immediate and spontaneous protest. The original fault may lie with the employer who is not acting in accordance with legislation already on the statute book. There may be a race relations issue and so on.
My amendment lists pieces of legislation that are binding on employers. Employees may find themselves having to make some kind of protest if the employer himself is in breach of the legislation. Like my noble friends, I wish to emphasise that in the Bill we are talking about a new doctrine—a new piece of protection for employers and a loss of rights for employees. If they take action the employees will not have a right of appeal. That is what these amendments are about. We have here a new situation in which people believe that they have quite legitimate grievances—because the employer is in breach of legislation already on the statute book—but cannot respond against it in a spontaneous way because if they do they lose a basic right. I beg to move.
Lord Boyd-Carpenter: This is a very odd amendment. We have moved from questions of safety at work, for which many of us have great sympathy for those concerned, to using industrial action as a means of enforcing other pieces of legislation against an employer. That cannot be right. If an employer is guilty of a breach of the Race Relations Act, for example, the proper course is not to take industrial action against him but to report the matter to the prosecuting authorities. The same is true of a breach of the Sex Discrimination Act or the Equal Pay Act. It is not a question of enabling employees to try to enforce the law by the use of industrial action. That would be a wholly improper use of such action. As this amendment would apparently legalise that provision, I very much hope that we shall not spend very much time on it and that we shall reject it.
Lord Strathclyde: As I said earlier, though I do not suppose I made it clear enough, the Government fully share the aim of ensuring that health and safety standards at workplaces are maintained or improved. We also deprecate any breach by an employer of any statutory duty arising under the terms of any of the various Acts mentioned in this amendment.
We would not propose legislation that we believed would in any way undermine health and safety at work standards. This Bill does no such thing nor does it in any way enable employers to disregard their statutory duties, either those arising under the Health and Safety at Work, etc. Act or any other legislation. In a nutshell, if employers breach statutory duties imposed upon them by relevant legislation, there should be no implication that the proper course of action is for the affected employees to take unofficial industrial action.
I should add that the terms of the proposed new Section 62A —I do not know whether the noble Lord, Lord McCarthy, is listening—apply only in respect of claims of unfair dismissal. Nothing in that section will affect the right of an employee to take a case against his employer on grounds of sexual or racial discrimination. It may be that the noble Baroness has

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misunderstood that. I hope that she has. There is nothing to worry about on this issue. I hope that she will accept what I have said and withdraw the amendment.
Baroness Turner of Camden: I do not intend to press the amendment this evening. I am not very happy about the response of the Minister either to this amendment or the preceding series of amendments relating to health and safety. This amendment refers to the Health and Safety at Work Act and other pieces of legislation. I am not arguing that the appropriate remedy is always by way of industrial action. However, I am saying that sometimes spontaneous actions take place on the shop floor if the employees perceive that a breach of legislation is taking place about which they are immediately concerned.
The obvious example is an incident at work that affects health and safety. There may be other incidents which breach other pieces of legislation. What we are anxious to ensure is not that people have an automatic right to take industrial action in all such cases but simply that if they do take such action and if they are dismissed as a result, they should not automatically be debarred from proceeding to an industrial tribunal. That is what all this is about; nothing else. However, I shall not press the matter on this occasion.
Lord Strathclyde: I should like to point out to the noble Baroness that it is not the employer who decides what is official or unofficial action; it is the tribunal.
Baroness Turner of Camden: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.15 p.m.
Lord McCarthy Lord McCarthy moved Amendment No. 50:
Page 9, line 22, at end insert:
("(3A) Where a trade union endorses unofficial action which commenced without an inducement or call on its part and without delay notifies the employer or employers of workers taking part of its intention to hold a ballot under the provisions of Part II of the Trade Union Act 1984, that Part of that Act shall not apply for a period of 7 working days following the date of that notification.").
The noble Lord said: We now turn from the special applications of the clause dealing with safety issues and other such matters to deal with the general effects of the clause. Despite what the noble Lord has said many times about all this being a matter for the union, the clause restricts the right to strike. Moreover, it restricts the right to strike still further, especially the right to strike unofficially.
Lord Strathclyde: Yes.
Lord McCarthy: It seems that we now have some agreement on the matter. We do not believe that the right to strike is a corporate measure which applies only to workers if they belong to trade unions and can only justifiably be operated through trade union procedures. We believe that in certain circumstances there is a right to strike, whether or not you are a member of a trade union and even in certain circumstances if that strike is not supported by the trade union.
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Trade unions do not have a monopoly on what is right. If people have a right to strike, then they have such a right in certain circumstances. It is a right which this clause seeks to narrow. However, it does so in a particular way and that is what we are trying to clarify by way of this amendment.
It is quite true that the right to strike is narrowed, especially as regards unofficial action. However, this leaves the union and the worker in a strange and ambiguous position. The union is faced with an apparently simple choice between endorsing or not endorsing the strike. Of course, that is all right for the employer but the union and the union members are faced with a series of dilemmas as a result.
In our amendment we are trying to map out a logical, sensible and reasonable way in which the choice that is inherent in the clause can be faced by the union and by the workers. The clause says that if the union endorses the strike but can show to the satisfaction of the court that it did not induce it and did not act unlawfully in any way, and if it also makes quite clear to the employer that it intends to hold a lawful ballot within a reasonable period of time —we are saying, in effect, seven days—then the provisions of the clause, with the need to make the choice between instant validation or dismissal, shall not operate. For a period of seven days, so to speak, the union is free to hold a ballot.
I submit that in the real world as a result of the clause a union has three possible courses of action. The normal situation would be that the union will hear of the problem when it receives a telephone call from an employer who will say that the members of the union are on strike or that they have given notice of their intention to strike and that as far as he knows it is unlawful. In the employer's view it will be unofficial because it has no support and because there has been no ballot.
The Government appear to think that at that time one of two instant reactions should take place. That is what the union is effectively asked to do. The first is instant repudiation. This is expected to take place on the facts alleged by the employer. If there is instant action which takes the form of repudiation and it is done over the telephone or on the basis of a letter, there cannot be an investigation. Therefore, the union will not be able to visit the workers and ask them why they are on strike so that they may consider the situation and find out whether they are carrying out union policy. There will simply be instant repudiation and the union will leave its members to their own devices. We suggest that that is a very ineffective and very unfortunate alternative to put to trade unions. If that is the Government's intention, it would seem to be designed to drive a wedge between the union and its members. Moreover, it will not necessarily settle the strike.
Then there is the other alternative. Many trade unions may feel that this is what they must do because there is no other course open to them. I refer to instant endorsement. Again, without further investigation, without trying to find out what it thinks about the workers' claims and without linking the demand to

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union policy or views, it should instantly endorse. That will, we hope, put the union in a good position with its members. If the union adopts that as a conscious, deliberate and systematic policy, it may put it into bankruptcy. It would be saying, "We will back this strike. We have accepted that you are legitimately carrying out this activity and imposing these sanctions". Therefore any other group of workers in similar circumstances will also get union support.
If one looks at the matter sensibly that is not a viable alternative with which to face a union on either count. The union will therefore play for time. The sensible national official will plead for the right to investigate: time to go down to see what is happening and perhaps offer validation or endorsement—that will be the natural thing to do—to the workers if they will return to work and have a ballot. The union will be under considerable pressure in any case if it needs to get a return to work to offer validation of the industrial action if the ballot goes in favour of industrial action. That is an inevitable result of the clause. At this point we do not seek to set it aside.
It should be possible, and it should be clear, that it is lawful for the union to act in that way and to have seven days to bring about a lawful resolution of the difference as a result of a ballot. At the moment we do not know how legality goes: endorsement prevents dismissal, but if the strike continues before the ballot we do not know what will happen to the workers. On the other hand, repudiation saves the union, but the workers can be instantly dismissed. We suggest that there should be a period in which the union can discover the necessary information to decide what should be done, and in most cases I believe that the union will find that it will have to have a ballot.
The union should be able to say to the employer, "We did not try to produce this unofficial action but we will hold a ballot and if after seven days we find that there is no support for the strike, the workers, if they continue it, will be acting unlawfully and so far as we are concerned you will be able to use the new power that you have in the Bill without further opposition from the union". I beg to move.
Lord Rochester: Clause 6 provides for a senior trade union officer, based, let us suppose, in London to do his best to give individual written notice of repudiation of unofficial industrial action without delay to every union member whom the union has reason to believe is taking part or might otherwise take part in that action. According to Clause 8, those taking part in the action will need to be aware on the following day that their action has been repudiated by their union or they will lose their claim for unfair dismissal if they continue with their action.
It is that period of one day upon which I should like to concentrate. Even the noble Lord, Lord Boyd-Carpenter, to judge from the Question he asked on Tuesday, will agree that our gallant Post Office cannot be relied upon to deliver a letter to any location in the country within 24 hours, particularly if it is posted in the part of London in which the noble Lord resides. Whatever else we may disagree about, I hope that the Committee will accept that it is unreasonable
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to set up a statutory procedure under which one day only is allowed between the time the trade union repudiates the acts of its members and the time when those members have to be aware of that repudiation and can consider the consequences of continued unofficial action.
I approach this in a rather different way from the noble Lord, Lord McCarthy. I question whether the period of one day is reasonable in all the circumstances. The amendment seeks a means of mitigating the difficulties that may be caused by providing a period of grace of seven days within which the union may help to resolve the dispute. I am not so much concerned with the merits of the amendment as with the difficulty caused by the period between the repudiation and the time when members have to he made aware that their action is unofficial. I hope that the Minister will comment on the period of one day.
Lord Strathclyde: In addressing the amendment, I think that it is once again useful to remind ourselves that the Bill proposes a package of measures to deter and discourage unofficial action. In addition, the present law requires unions properly to ballot their members before calling or organising industrial action.
Before I go further, perhaps I may deal with the point of the noble Lord, Lord Rochester, which we shall discuss more properly under Amendment No. 51. I shall touch briefly on it now and perhaps Amendment No. 51 will not be called. The noble Lord's points about the post are fair enough. But the law does not require every single potential striker to receive a written notice of repudiation. Workers simply have to receive knowledge of the repudiation. Therefore, the warning does not need to go by post: it could go by telephone, telex, fax, even by word of mouth, from the local regional officer. That is why one day ought to be enough for anybody to get an important message over to his members.
Amendment No. 50 seeks to enable employees taking unofficial action—that is action which has not been called even by one of their union's officials—to avoid liability to selective dismissal for a certain period of time if the union gives notice to the employer that it intends to hold a ballot about the action. It would also give the union immunity for organising the action during the seven working days following notification to the employer of its intent to hold a ballot.
I should have hoped that noble Lords opposite would have gone along with the principle that unofficial action ought not to be encouraged by any responsible union. That may not be their position but it is the position of the TUC. Therefore I am surprised by this amendment in the noble Lord's name. As I understand it—the noble Lord, Lord Wedderburn, is looking at me in surprise—the position of the TUC is not to encourage unofficial action.
Lord Wedderburn of Charlton: I am sorry. I do not mean to interrupt the Minister, but he invites me to do

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so. I did not understand his formulation of the TUC's position on unofficial action. I did not hear the source of the quotation of its position.
Lord Strathclyde: It does not surprise me that the noble Lord asks me for the source and evidence because he probably knows that I do not have them to hand. However, I know that the TUC's position is in principle that it does not wish to see unofficial action encouraged.
Lord McCarthy: Surely the noble Lord can see the difference between wishing to discourage unofficial action and a situation in which one supports legislation which provides that those who go on strike unofficially have absolutely no rights.
Lord Strathclyde: I ask the Committee to remember that action is only unofficial when the union has repudiated it. If the union does not repudiate it and it has lawfully organised the action, it is perfectly official action. That is the point. The amendment proposes —does the noble Lord wish to labour the point further?
Lord Wedderburn of Charlton: I do not wish to labour any point—even by pun! The Minister was about to leave a point which had not been covered in debate and which my noble friend raised. Does he accept that where a union or an official who binds it authorises the action which has begun spontaneously so that it ceases to be unofficial action, from that point until the ballot can be completed the union is open to an injunction?
9.30 p.m.
Lord Strathclyde: It is an overriding principle of industrial relations law that no action need be taken until it has been balloted on. The whole point of modern industrial relations law is to avoid strikes. Inspiration has reached me about the reference to the TUC. I understand that in a letter to the Secretary of State for Employment about health and safety in Clause 8, the TUC took this position on unofficial action.
This amendment proposes that those taking the most irresponsible form of industrial action—that is, action which has never been called for by any union official—should be given protection against selective dismissal for a period of seven working days. That would occur if the union merely gave notice of nothing more than the intention to hold a ballot.
The provisions of the Bill will leave a union free to decide to hold a ballot on industrial action, following which it could have the protection afforded by a properly conducted ballot for a subsequent call to take industrial action. That is right and proper. The amendment, however, would mean that unions would almost certainly come under intense and possibly irresistible pressure to hold a ballot on industrial action wherever their members had embarked on unofficial action. By taking such irresponsible action militant members could virtually force such a course on their union by arguing that without such a step they would be left defenceless against selective dismissal.
Lord McCarthy: That is exactly what the Bill is doing. The Minister must have said 20 times tonight that it is for the union to decide whether action is official or unofficial. The Bill gives trade unions that single choice. They have to decide whether action is official or unofficial. If they decide that action is unofficial, they put their members at the mercy of instant dismissal. The Minister appears to be saying that the unions should recognise every strike in order to save their members from dismissal. Is that the policy of the Government?
Lord Strathclyde: It is not for a union to decide what is official or unofficial. It is up to the union to decide whether or not to repudiate action taken at a local level. There is a world of difference between those two concepts. Surely it must be better for a union that wants to hold a ballot on industrial action and contemplates making a dispute official to do all it can to convince its members taking unofficial action to return to work pending the organisation of a proper ballot. That strikes me as being the most reasonable position. However, that is obviously not the case with the noble Baroness.
Baroness Turner of Camden: Some members might have been dismissed by then.
Lord Strathclyde: The union can move perfectly fast enough to explain to its members that a far better course of action is to hold a proper ballot. As the amendment stands, there would be little incentive for a union to do that. During the seven working days following the proposed notification of procedure, the employer would be denied the freedom selectively to dismiss those taking unofficial action as a means of bringing it to an end. The noble Lord, Lord Wedderburn, admits that. The employer would be denied that option, whether or not the union eventually held a properly conducted ballot. That in itself leads to a further problem. The employer would not be prevented from dismissing all of those taking the unofficial action during the seven-day period. Accordingly, if the unofficial action was taken by only some employees, those calling for the action might argue that other employees should join in to make it more difficult for the employer to dismiss them all.
Finally, the amendment would create a situation in which a union would have protection against proceedings in tort even though it was organising industrial action but had held no properly conducted ballot. That would be completely contrary to the principles on which the present law concerning union liability operates and on which it has operated successfully for many years. In short, this amendment would undermine the intended effects of the proposed new Section 62A. It would also be highly damaging to good industrial relations.
I do not think I will have convinced Members of the Committee opposite, but I hope they will withdraw the amendment.
Baroness Seear: As I understand the groupings list, we were also talking to Amendment No. 51.
Lord McCarthy: I am sorry to disappoint the noble Baroness. We are not talking to Amendment No. 51, and at this time of night I do not intend to move that amendment.
Baroness Seear: We were speaking to Amendment No. 51. On the groupings list I have, Amendment No. 51 is grouped with Amendment No. 50.
Lord Strathclyde: On the current groupings list Amendments Nos. 50 and 51 are taken separately. However, I understand that on the proposed grouping list which was around yesterday and which the noble Lord, Lord Rochester, has the Government had proposed that Amendments Nos. 50 and 51 should be dealt with together. As it happens I have made my point about Amendment No. 51 and I hope that the noble Lord will accept that. However, the amendments should be taken individually.
Baroness Seear: It was because the noble Lord made a point about Amendment No. 51 that I wanted to say something. I do not accept his point that one day is enough. If unofficial action is taking place it is extremely likely that most of the people taking the unofficial action will not be in the plant. They will be at home or in the pub. That being so, I cannot see that the noble Lord's argument about how the union is to contact them stands.
He said that notification could be sent by fax. Most employees, even in these enlightened days, do not have fax machines in their own homes. The idea that the information can be put round in that way simply does not stand up. The noble Lord seems to think that the workers will all be hanging round the factory yard. They will be doing no such thing. They will be all round the countryside, at home or in the pubs. One day is not enough.
Lord Strathclyde: The noble Baroness makes an excellent point. No doubt the fact that the employees will not be hanging around the yard will be useful when we deal with other amendments.
The period of grace is not intended for unions to send out written word. It is intended to give the union an opportunity to get the message to its members by whatever means may be quickest and available to it. It must be able to show that it has tried to do so. All it takes is a phone call to the local union representative; he can walk round a few pubs. He must be in contact with the members.
Baroness Seear: They might be in 50 different pubs. Is the noble Lord seriously suggesting that the local union official has to go to 50 different pubs?
A noble Lord: Yes, he is.
Baroness Seear: What are the Government encouraging people to do?
Lord Strathclyde: I simply used the example which the noble Baroness gave. If the workers who are on strike are in the pub, that is entirely up to them. The point is that if people are on strike it is a serious issue. The union officials must know where to find the majority of them. They do not have to contact every single one of them, but they have to show that they have tried. That is the point. That is why one working
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day is sufficient. However, we are not discussing that amendment unless the noble Lord, Lord McCarthy, chooses to move it, which I hope he does not.
Lord McCarthy: I apologise to the noble Baroness if changing the groupings at the last minute meant that she thought that we were discussing a different amendment. The Government grouped Amendment No. 50 and Amendment No. 51. We take them to be very different and therefore wanted to take them separately.
Amendment No. 51 deals with what the noble Lord, with a sense of irony, calls the period of grace. We tried to have the period of grace increased by a much smaller period than seven days; it seemed to me that at this time of night it was not much good trying to get seven days out of the Government, so we shall not move that amendment. However, I come back to the amendment that we have moved, which is Amendment No. 50.
I do not want to stimulate the noble Lord into making another speech, but I may get somewhere if I can say something and, depending on whether he agrees with it, we can put down an amendment on Report to test it out. We are talking now about the position of the union. In this amendment we have given up talking about the position of the poor worker; we are talking about the union. The Minister speaks as if it was absolutely clear in either case; the union can decide on endorsement or on repudiation and so long as it gives a clear decision on endorsement or repudiation and follows through the provisions of the Bill it cannot be liable. If that is the case we can put down an amendment to that effect on Report and we can expect to receive support from the Government.
We do not believe that at present the position is at all clear. We fear that a union could endorse an action, but if it was unable to get all of its members to return to work it could find itself in a serious legal difficulty if it had not yet held a ballot. It might find itself subject to some form of liability. It might very well find itself subject to injunctive procedures. That is what we fear in the case of endorsement. Similarly, we fear it on repudiation. We believe that if the union repudiates its members, that may appear to save the union—but not if the strike continues. If the strike continues, the same problem might arise for the union. So, if the noble Lord says that it cannot happen, he must be prepared to support an amendment which we will put down on Report to the effect that no form of liability can conceivably arise.
Let me give him a very doubtful case of possible liability on repudiation. Let us suppose that the union nationally goes through the motions. It follows the provisions of the Bill to the letter. But suppose that one of the local officials—an official who is an official under the terms of the Bill—endorses. Let us suppose that he manages to carry out a ballot. Does that change the situation? Or let us suppose that he carries out a ballot and the ballot is not quite lawful, because some irregularity occurs in it. In that sort of situation, can the union in any circumstances be liable? The

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Minister seems to say that it cannot be liable. Therefore will he accept an amendment to that effect on Report?
Lord Strathclyde: No.
Lord McCarthy: If the Minister tells me that, we shall come back on Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 51 and 52 not moved.]
The Deputy Chairman of Committees (The Viscount of Oxfuird): The next amendment is Amendment No. 53, and I must advise the Committee that, if this amendment is agreed to, Amendments Nos. 54 to 57 cannot be called because of pre-emption.
[Amendment No. 53 not moved.]
Lord Strathclyde Lord Strathclyde moved Amendment No. 54:
Page 10, line 8, after ("Protection") insert ("(Consolidation)").
The noble Lord said: This is a fairly minor amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 55 to 57 not moved.]
On Question, Whether Clause 8, as amended, shall stand part of the Bill?
9.45 p.m.
Lord Wedderburn of Charlton: My noble friends and I have given notice of our intention to oppose the Question, That Clause 8 stand part of the Bill. It has been a matter of some regret to us not to move some of the most recent amendments between Nos 52 and 57. In doing so, we had in mind a number of matters: first, the hour and the position in the Committee; and, secondly, the fact that there has been over the earlier amendments considerable discussion of various aspects of Clause 8, and we wanted to look again—as it were to believe with our eyes what our ears told us —at the Government's attitude to this objectionable clause.
The noble Lord, Lord Rochester, said earlier that this was perhaps the nastiest clause in the Bill, which it is. We shall not divide on it, as we intended, again because of the hour. We shall come back to all the aspects, within all the rules that bind us on Report, looking at the clause against the history of our own labour relations law and against the history of previous governments' legislation and of this Government's legislation.
As a matter of fact, it is rare that they have gone anywhere near as far as this to give the employer untrammelled power, at his whim, to select hostages, as it were, out of the workforce who have merely stopped work, however far one disapproves of unofficial action and prefers not to see it. Spontaneous stoppages of work occur in every democratic society. The way in which they are dealt with varies according to the legal system, but there is no comparable system which bolts the doors of every court and every tribunal to an employee who has been arbitrarily selected—that is the point—for dismissal.
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With regard to international standards, the Government's attitude has been rather astonishing. It is not just a matter of the International Labour Organisation conventions; it is also a matter of the social charter of the Council of Europe and the Convention on Human Rights. All those standards point in a totally different direction from Clause 8.
I must tell the Minister that it causes more than a certain degree of surprise to find Ministers for the first time—I do not think that it has happened before; this is a new breed—speaking with disdain as experts on matters which are intrinsically questions of law and of interpretation of the conventions. They also speak disdainfully about a committee of experts—a body which includes three judges of the International Court, seven leading justices and judges from superior courts, including superior labour courts, in various countries, and 10 other eminent jurists, some of them also judges, specialising in the subject. That the Government can treat the pronouncements of the committee of experts of the ILO in such a way causes a little surprise. I do not have to quote again the passages which make it clear—
Lord Strathclyde: I do not call the decisions of the committee of experts of the ILO into disrepute. We point out that the ILO has never condemned the Government.
Lord Wedderburn of Charlton: That is an ambiguous proposition. There is a sense in which it is correct. It is true that the ILO governing body has never included a condemnatory paragraph in its general report. That is what the Minister means. The Government will do their best to ensure that that does not happen. However, they are not doing their best by argument; they are doing their best by other means.
The committee of experts has advanced arguments and interpretations of the law of international standards to the Government. Among those arguments is the proposition—I shall quote it now as the Minister has intervened—that:
"it is inconsistent with the right to strike as guaranteed by Articles 3, 8 and 10 of the Convention for an employer to be permitted to refuse to reinstate some or all of its employees at the conclusion of a strike, lockout or industrial action without those employees having the right to challenge the fairness of that dismissal before an independent court or tribunal".
That is the ILO position, which the Freedom of Association Committee has also observed.
The Government do not agree with that as they have included Clause 8, which flies in the face of the ILO committee of experts and of the Freedom of Association Committee. By domestic standards, it is an objectionable novelty which will certainly not help industrial relations, as the noble Lord, Lord Rochester, has more than once pointed out. By international standards, it is a further convention by a government who have become known in international labour law as the hooligan of international and comparative labour law.
The Minister does not like that. He should go and listen to what is said by people who find out what goes into his legislation. I do not like it either. I do not like my country being condemned in that way by everyone

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other than the British Government representatives. The Minister does not like it either. That is something we have in common. Perhaps he will change his legislation and then we could both have a happier time.
However, the Minster will not change his legislation. The Government will press the clause. We shall examine the debate as carefully as we can to see whether something can be saved in the interests of the individual employee. The Government claim to stand for the individual but, when he is an employee, they allow him to be selected for dismissal. We dislike the clause very much and hope to return to it on Report.
Lord Rochester: There is not much more that I can say on this objectionable clause that has not already been said. However, perhaps I may put on record that, if in future it is to be open to employers to single out for dismissal individuals taking part in unofficial industrial action, I do not believe that they should be entitled to do so without having to justify their action before an independent arbiter. In my view, that is an elementary principle of justice. I am strongly opposed to the Government's action in departing from that principle in this clause.
Lord Strathclyde: I recognise that this is an immensely important clause of the Bill and so I shall spend a few moments justifying our position.
At present the law on unfair dismissal while taking part in industrial action makes no distinction between action which is "official" and action which is "unofficial". The time has come to change these arrangements. It is clear from previous debates that the Government and the Opposition have quite different perceptions about the seriousness of unofficial action and the need to reduce the scope which the present law allows for such action. It is important to remember that unofficial action is unauthorised and usually unballoted. This means that unofficial industrial action will not have been preceded by proper democratic procedures. The Opposition have shown that they are determined to resist changes to the law designed to discourage and hamper unofficial action. I am content to leave it to the Committee and to the public to draw their own conclusions from that.
The Government believe that the problems which unofficial action causes to employers and to the community can no longer be ignored. Employers should not be left powerless, without a legal remedy, in the face of unauthorised and unballoted industrial action. The Green Paper put forward proposals for changes to the present law. They won substantial support.
The particular provisions of Clause 8 will give employers faced with unofficial action a remedy which they do not at present have; that is, selective dismissal of those choosing to take such unofficial action. These measures will not affect the present position of those taking official action. They are, and will remain, protected by the provisions of Section 62 of the 1978 Act. It is worth bearing in mind that the provisions of Clause 8 mean that members taking industrial action
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in response to a call by any official of their union will be protected against selective dismissal unless and until the action is repudiated by their union.
So it is helpful to summarise some basic points about the way in which the provisions of Clause 8 work. First, the clause has no significance whatever for the liability to selective dismissal of anyone taking official action. Secondly, where an employee is dismissed, it will remain open to him—as now—to test whether he has a right to claim unfair dismissal by making a complaint. Thirdly, where such a claim is made by an employee with the qualifying period of service to claim unfair dismissal, it will be a matter of fact for the tribunal to determine whether the employee was dismissed while taking part in industrial action; if so, whether he was "selectively" dismissed, and if so, whether he was taking part in unofficial action at the time of his dismissal. Only if the answer is yes to all three questions would the provisions of the new Section 62A of the 1978 Act mean that the tribunal could not determine the fairness of the dismissal.
The cornerstone of these provisions is this. The Government believe that giving employers greater freedom to dismiss those who choose to take unofficial industrial action is likely to discourage employees from embarking on, or continuing with, such action. It follows that if employees refrain from unofficial action, there will be no grounds to enable an employer to dismiss anyone selectively by virtue of the provisions of Clause 8.
I should add, of course, that there will be no obligation on any employer to make use of this new freedom. It will be for each employer to decide for himself when this response is appropriate in the circumstances of any particular dispute. In practice dismissal of those taking industrial action is very rare. It is, we believe, reasonable to expect that employers will continue to be guided by common sense and practical considerations. That is not to say that the Government expect selective dismissal of those taking unofficial industrial action never to take place. But we do not believe that the anomaly in the present law, whereby an employer must dismiss all or none of those taking unofficial action, can be allowed to continue.
The debates we have had on the provisions of Clause 8 have been very interesting. The Opposition have made it clear that they find almost every aspect of the provisions objectionable, obnoxious, nasty and so on. However, the Government believe that the scope which the present law allows for unofficial action must be restricted. The provisions of Clause 8 are a vital element in what the Bill proposes as appropriate reform of the present law. We are confident that our view is shared by those who really want to see unofficial, wildcat action discouraged so that our country's industrial relations record can continue to improve. I commend the clause to the Committee.
Lord McCarthy: Before the noble Lord sits down, he has usefully summarised what the clause will do. He has not mentioned any additional liabilities accruing to trade unions. Therefore surely he will support an

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amendment that we shall put down at Report stage to say that nothing in the clause shall in any way add to the liabilities of the trade unions.
Lord Strathclyde: That is absolutely true if the unions repudiate the action.
Clause 8, as amended, agreed to.
Lord McCarthy Lord McCarthy moved Amendment No. 58:
After Clause 8, insert the following new clause:
("Codification for clarification
Within six months of the passing of this Act the Secretary of State shall cause to be published a codified text comprising the amended statutory provisions of the Trade Union Act 1913, Trade Union and Labour Relations Act 1974, Employment Protection Act 1975, Employment Protection (Consolidation) Act 1978, Employment Act 1980, Employment Act 1982, Trade Union Act 1984, Employment Act 1988, Employment Act 1989 and this Act.").
The noble Lord said: The Committee will be pleased to know that we are changing the subject. The objective of the amendment is to persuade the Government to consider some form of consolidation or codification of the spate of legislation that we have had since 1979. We do not ask simply for the bringing together of the provisions of the six Acts dealing with trade union and worker rights since 1979. They did not exist in a statutory vacuum. They had implications for existing Acts up to that time which governed labour law, in particular the Acts of 1913, 1974, 1975 and 1978.
Leaving aside the provisions of the 1906 Act, 10 main Acts are involved. We suggest that it is time that the different and in many ways complicated provisions of those Acts were brought together in some form of clarified or codified text.
I estimate that the provisions cover 706 pages and 1,079 sections and weigh 2lbs 10oz. It seems to me that somehow we could find a simpler and more straightforward way of placing them on record.
We could all give examples of different legal liabilities and immunities which require people to trace their way through the Acts of 1906, 1974, 1980, 1982, 1984 and so on. Trade union immunities for tortious action and the legal boundaries of picketing are particularly complicated subjects.
Lord Strathclyde: The noble Lord has undertaken a great deal of impressive research. It may help if I very quickly respond to the points that he makes, because I think that I know what he will say.
Perhaps I may quickly state that the Government keep under review the possibility that it may be appropriate at some time in the future to come forward with a consolidation measure. I hope that that will not be taken to imply that the process of reforming industrial relations and trade union law is in any sense complete, as we have always made clear.
Perhaps I may also confirm that we shall give priority to updating the present series of free guidance booklets issued by the department. In the light of that reassurance, I hope that the noble Lord will feel able to withdraw his amendment. I am not giving a commitment to consolidation. I simply say that we are looking at the question very seriously.
Lord McCarthy: It is a novel procedure for the noble Lord to interrupt us and give us nothing. I suppose that it is the procedure that we have to put up with. He has given us nothing. He said that he is thinking about it. Does he accept the mess that the law is in? I shall not bore him yet again by reading out what the ILO said although I could.
Perhaps I may quote what the Master of the Rolls said in a recent case of the Post Office v. UCW. He said:
"May I say at once that the union has throughout acted in the wholly genuine belief that it was entitled to take the industrial action which it did and there has not been, and is not, the slightest intention on its part to depart from its strict legal rights. May I also say that, although I have no doubt about the correctness of our conclusions, this legislation is a minefield in which it is all too easy to stray from the paths of safety and legality".
It is a minefield. We are not asking the Government to give one of the Minister's stock three answers: "We are reviewing it. We are thinking about it. Go away and come back another day". We are saying, "Don't give us the answer that it is postponed. Tell us when you are going to do something about it". I beg to move.
Lord Strathclyde: I do not have a great deal to add. I am sorry but the only succour that I can offer the noble Lord is to point out that for ordinary people —not academics and others well-versed in legal procedure—who wish to find out what the law is we shall be updating the present series of free guidance booklets issued by the department. I do not believe that that will satisfy the noble Lord, but there is nothing more that I can say.
Lord McCarthy: There might be nothing more that the Minister can say but he knows that those publications are largely useless. However, given the time of night, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 59 not moved.]
10 p.m.
Clause 9 [Proceedings in respect of which assistance may be provided]:
Lord Wedderburn of Charlton Lord Wedderburn of Charlton moved Amendment No. 60:
Page 11, line 2, at end insert:
("( ) Where the Commissioner has provided assistance to a person in proceedings against a trade union or other party, that trade union or other party may at any stage of the proceedings, whether before or after judgment, apply to the court for a declaration that the proceedings are vexatious, frivolous or otherwise not founded on reasonable grounds, and in such case the court shall award such compensation to the applicant as it considers just and equitable of an amount not less than the sum so provided by the Commissioner.").
The noble Lord said: Clause 9 deals with the commissioner or, as the office is known in the trade, the CROTUM. The office of commissioner was set up by a special statute and we wish to make an amendment to what is provided in respect of the functions in Clause 9.
I can put the matter briefly. The basic power of the commissioner is to finance proceedings. It is a wide power. Until 1967 we had wrongdoings called

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"champerty" and "maintenance". They controlled the financing of legal proceedings and the meddling in them. The policy behind those wrongdoings was clear. Although the wrongs have been abolished, there is still a policy which is to be supported. To set up a public office, the sole purpose of which is to finance litigation, demands the most rigorous checks and balances. That is especially so when public money is being spent on litigation and where the primary defendant is always the same; that is, the trade union.
In the report dated 30th June this year the CROTUM states that, once the commissioner has agreed to pay for legal advice or representation in particular proceedings, the union member supported need incur no further significant costs in the proceedings. What will happen if the commissioner makes a serious mistake? Everyone, even the Government, can make mistakes. What will happen if the other party wins the action but discovers the person supported has no resources? Our amendments raise the question of costs. We see no reason why the CROTUM should not in some circumstances be responsible for costs. We say that where there has been support of proceedings which turn out to be frivolous or are not otherwise founded on reasonable ground, the court should have power to award compensation to the applicant. That should be paid for by the commissioner, who from the beginning was the engine of litigation.
It is interesting to note that there is an example of that in the sparse report of the first year of the CROTUM's activities. Page 5 indicates that the only two applications for assistance to seek interlocutory injunctions under the Employment Act 1988 were supported by the commissioner but lost. In other words, there were two instances of litigation where the defendants succeeded. Yet, as the law stands, however unreasonable, frivolous and culpable was the commissioner's support of the plaintiff, the defendant union would have had no recompense against the commissioner. We say that that is an unreasonable position. Perhaps the precise wording of our amendment can be criticised, but at this hour of the night I should give way on any point of drafting.
We say that the principle is shown in the report to be in need of action. Before we reach the Report stage, will the Minister provide further details of the two actions in which the CROTUM's assistance failed to win the injunction which was claimed? Will the Minister provide the information, if necessary in confidence? We can then discuss with him the serious instances in which the only two cases to be supported have failed. We say that the first report increased the strength of the case. It does not depend on the first report, but there is a strong case for saying that in some circumstances the CROTUM should be an office which pays compensation for wrongs done to a defendant. I beg to move.
Lord Strathclyde: Amendment No. 60 would provide a special procedure whereby courts would be obliged to award a certain level of compensation if proceedings are found to be vexatious and frivolous and so on. It is, however, unnecessary.
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In the unlikely event that the commissioner was to grant assistance in a case which was frivolous, vexatious and so on, the trade union would have the same protection under the rules of court as any other defendant who has such proceedings brought against him. The union can apply to have the pleadings struck out. If the union is successful the court will make the appropriate order of costs in its favour. Furthermore, because Section 21(3) of the 1988 Act requires the commissioner to indemnify an assisted person in respect of any order for costs or expenses made against him or her, the defendant trade union need not worry about the personal means of the assisted person.
There is no evidence that the commissioner would give assistance for frivolous or vexatious proceedings. In fact if she is inadvertently misled in doing so by an applicant, subsection (1)(a) and (b) of Section 21 of the 1988 Act provides that the commissioner will he entitled to recover from such an applicant an amount equal to any sum provided in pursuance of that application.
The noble Lord, Lord Wedderburn, requested some information. I shall see what I can do.
Lord Wedderburn of Charlton: I am grateful for the Minister's last remarks. He will see what he can do, and I hope that he can do something. I take his point on costs. I may have gone too far on costs but there is still a case as regards what I agree is the unlikely event of frivolous actions. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 61:
Page 11, line 2, at end insert:
("( ) The Commissioner shall cause to be published annually audited accounts in respect of his office and functions.").
The noble Baroness said: This is a very simple and, I should have thought, uncontroversial amendment. It calls for the commissioner to publish annually audited accounts in respect of the office and functions.
When the office was first established, government spokesmen were fond of referring to it as though it were another commission rather like the EOC. In fact, in proportion to the work done, its office is lavishly funded compared with the EOC of which I was a member for many years. The EOC has an enormous task to carry out and does so with very limited resources.
Moreover, the EOC publishes a full record of the work done, the projects financed, the cases supported and an account of its financial expenditure, all of which appears in the EOC report of which I have a copy. However, when that is compared with the very thin report produced by CROTUM nothing of the kind appears. In fact there is this sentence:
"The accounts of the commissioner prepared under paragraph 9 of Schedule 1 to the 1988 Act are to be published separately by order of the House of Commons".
In other words, the accounts are not published in the report. As my noble friend has indicated, although the

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office was established, as I understand it, to provide legal assistance, only two cases seem to have been legally assisted, both of which failed. We should very much like to know, along with the report of activities, precisely what has been the expenditure and how the money which has been allocated to that office has been utilised.
I understand from another source that the amount involved last year was £250,000. A great deal more money than that was made available to the commissioner. I should like to know exactly how the finances have been disposed of. The only way in which that can be dealt with is by a requirement that the commissioner shall cause to be published annually audited accounts in respect of the office and functions. I beg to move.
Lord Strathclyde: This is a small amendment. I believe that the noble Baroness has become very excited about nothing. In technical terms the commissioner is a non-departmental public body. Thus, under the provisions of paragraph 9 of Schedule 1 to the Employment Act 1988 the commissioner is already required to prepare audited accounts. The noble Baroness knows that because she mentioned it.
The statement is examined, certified and laid before each House of Parliament by the Comptroller and Auditor General. That is the usual procedure for non-departmental public bodies.
The commissioner's second annual report, which was laid before your Lordships last Monday, was the first report that she has issued which covers a full year. I am not exactly sure what point the noble Baroness is making. Perhaps I may look at her words. In the meantime I feel that her amendment is unnecessary and hope that she will withdraw it.
Baroness Turner of Camden: I do not intend to press the amendment. I am grateful for the Minister's assurance that he will consider what I have said. It is very simple. Instead of having this statement in the report, why can we not have the audited accounts, which are published along with the report, actually in the report? The EOC and other similar bodies do that. That is my main point. It is small. I do not press the amendment but I shall be grateful to the Minister if he will look at it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 9 shall stand part of the Bill?
Lord McCarthy: We are opposing the Question, That this clause stand part of the Bill, though at this time of night we do not intend to press it to Division.
The case for the CROTUM is not supported by the annual report of the CROTUM. Fortunately for us its publication just before this debate was timely. Its appearance is typical of the way the Government publish reports. They become bigger and glossier and contain fewer words. The point about this report is that there appears to be no price. My first question is: what is the price of a report on the CROTUM? The
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report does not justify the continued existence of the CROTUM and does not justify the extension of those powers.
An under-utilised Rolls Royce service is revealed. It compares extraordinarily with all other forms of aid to workers when they are taking civil actions, not against trade unions, but against employers. It reveals that the CROTUM has virtually nothing to do, and not because the CROTUM has not done her best to drum up work. The chapter on publicity tells us that there have been national press conferences, interviews on local and national radio, interviews on television and feature articles ad nauseam. Thousands of copies have been produced at a cost of £250,000. That has been the cost of the CROTUM for 12 months.
The report tells us that the result was 324 inquiries —one 'phone call a day. Of those 324 inquiries, 184 had nothing to do with the legal activities of trade unionists. They are not covered by the previous Acts and will not be covered by this Bill. What were those telephone calls concerned with? Perhaps they were about the poll tax.
There were 70 inquiries within the bounds of the CROTUM. In only 29 cases—it is not really 29 but the report says it is 29 in the first instance—was it found advisable to take it to the point where the CROTUM could advise the individual who rang up or sent a postcard, to make a formal application. In other words, the CROTUM sent out 29 forms. That was in a period of 12 months.
This is the cheat. Nine turned out on further investigation to be outside the scope of the power to assist. In other words, 29 forms were sent out but nine need not have been because, if the CROTUM had looked more carefully, she would have realised that they were outside the ambit of her powers. That means that there were 20 cases at a total cost of £250,000.
Was it the case that there were 20 convictions or 20 cases where it became clear that unions had broken the law? No. A further nine cases were abandoned in due course. That left 11 cases—one case a month—which appeared to the CROTUM to need following up after the return of the form.
Did those 11 cases result in unions being brought before the justices? No. Of those 11 cases, three unions co-operated fully when they received the applicant's letter. They might well have co-operated if they had received the applicant's letter without the CROTUM's intervention. One applicant abandoned the case when the strike ballot decided against a strike; two applicants got as far as the injunctive stage and the court decided—as it must decide in order to set aside a demand for an injunction—that the union had no case to answer.
So there were five little cases left. Did those five cases result in the union coming to trial? No. One writ was served, and action continues—wait and see. One case is awaiting counsel's opinion—wait and see. One action is continuing after counsel's opinion—wait and see. One application is under consideration—a single success to CROTUM. Twelve months of work and £250,000 for a single success.

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The CROTUM report said that after counsel's opinion the union withdrew the block voting system, and that action removed the cause of complaint. We are not told the size of the union, and we do not even know whether it is in the TUC. It withdrew the block voting system and good old CROTUM had one success.
10.15 pm
Lord Strathclyde: What has that to do with the clause?
Lord McCarthy: The Government say that CROTUM should not only go on, but that it should be expanded. I am saying that we should compare what CROTUM does—this under-utilised, largely useless Rolls-Royce service—with what happens in regard to unfair dismissals, discrimination cases, race and sex cases, industrial injury and health and safety cases, where there is no legal aid whatever in tribunal hearings. Where there is legal aid, it is severely means-tested; and even with legal aid, which will not give you more than 20 per cent. of your costs if you win, you have to pay it back. If you look at the way the EOC and the race relations commission have complained of constant under-funding, we say that it is irresponsible of the Government to not only continue with CROTUM but to suggest that work should be expanded next year. If we double the area of responsibility, there might be two cases rather than one. That is a waste of public money and we cannot support this clause.
Lord Strathclyde: This is extraordinary. It is obvious that the noble Lords opposite do not like the commissioner, do not want union members to be protected by the commissioner and would rather that CROTIUM were done away with altogether.
The proposal in the clause is to bring within the scope of the commissioner's assistance proceedings that arise out of certain alleged or threatened breaches of union rules as put forward in Chapter 4 of the Green Paper "Removing Barriers To Employment". Over one-third of the inquiries the commissioner has received so far have related to possible breaches of the union rules set out in Paragraph 4.15 of the Green Paper. They are outside her current scope of assistance but these inquiries demonstrate that there may well be a need to bring such matters into scope.
The list in Clause 9(2) of the Bill brings into scope of the commissioner's assistance all the proceedings mentioned in the Green Paper. In addition, it also brings into scope proceedings over breach of rules relating to the removal of a person from union office, which was suggested in responses to the Green Paper.
One thing is clear about the role of the commissioner. The mere presence of the commissioner helps to ensure that unions do not behave unlawfully in so far as they are aware that to do so would risk proceedings being brought by a member of the commissioner's team. Furthermore, the commissioner's annual report states that a further 114 inquiries could have led to applications within the scope of her assistance if the proposals in the Bill had been in force. The commissioner clearly has a role in
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protecting union members. Noble Lords opposite have spoken about how they wish to help individuals. From this debate it is clear that that is not the case.
Finally, the noble Lord began by asking how much the report costs. I have to tell him that the price of the report is a matter for the commissioner herself. As noble Lords know, she is independent. However, if the noble Lord fears that he might be a little hard up, I will lend him my copy whenever he wants it.
Lord McCarthy: The noble Lord has put forward one non-fact—he does not know the cost of the report —and one pseudo-fact. He said that one-third of the inquiries related to possible breaches of union rules. If they were investigated by CROTUM, and if in her investigations she found as many irregularities as she found in the investigations last year, that would result in one-and-a-half injunctions, both of which she would fail to get.
Clause 9 agreed to.
Clause 10 [Title of proceedings where assistance provided]:
[Amendments Nos. 62 to 64 not moved.]
Clause 10 agreed to.
Clause 11 [Consequential revision or revocation of Codes of Practice]:
[Amendments Nos. 65 to 67 not moved.]
Clause 11 agreed to.
Schedule 1 [Further provisions relating to access to employment]:
Lord Strathclyde Lord Strathclyde moved Amendment No. 68:
Page 14, line 34, after ("enquiry,") insert ("or not to accept an offer of employment,").
The noble Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Strathclyde Lord Strathclyde moved Amendment No. 69:
Page 14, line 34, at end insert:
("(cc) in a case where an offer was made but withdrawn, the date when it was withdrawn;").
The noble Lord said: This amendment has already been debated. I beg to move.
On Question, amendment agreed to.
Lord Strathclyde Lord Strathclyde moved Amendment No. 70:
Page 14, line 35, leave out ("a case") and insert ("any other case").
On Question, amendment agreed to.
Baroness Carnegy of Lour Baroness Carnegy of Lour moved Amendment No. 71:
Page 15, line 26, at end insert:
("(5) An industrial tribunal shall decline to make an order or recommendation under sub-paragraph (1) above if it is satisfied that the respondent has a deeply held religious conviction which causes him to object to employing or, as the case may be, providing services for, a member of a trade union.
(6) The burden of proof of religious conviction to the satisfaction of the tribunal shall rest upon the respondent.").
The noble Baroness said: I should explain at the outset that a related amendment was discussed in Committee in another place and it was withdrawn.

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Subsequently, an amendment identical to this one was tabled at Report but it was not called. I have tabled this so far undiscussed amendment because it seems right that the Committee should be aware of and take account of the difficulties that the Bill presents to certain of our citizens who are members of the Exclusive or Plymouth Brethren and who are also employers.
I ask the Minister whether during the time since Committee stage in another place the Government have been able to identify any way in which they can help. The problem has been brought to my attention by two members of the brethren living in the central belt of Scotland, each of whom runs a small business employing eight and 10 people respectively. Their trade is the distribution of copying paper. The difficulty for my advisers and their fellow brethren is that they consider that membership of a trade union, the employment of people who belong to trade unions and membership by an employer of a professional or an employers' association go against the injunctions of the Scriptures and therefore against their particular Christian belief.
I am informed that this belief is founded on a variety of biblical texts—from, for example, St. Paul's second letter to the Corinthians, Chapter 6, which states:
"Be ye not unequally yoked together with unbelievers";
and from his letter to the Colossians:
"Servants, obey in all things your masters";
and:
"Masters, give unto your servants that which is just and equal".
The brethren interpret the Bible as saying that to enable the relationship of an employee and his or her employer to be straightforward and proper, no third party should be involved; no trade union and no employers' association. They consider that they are obliged as Christians to obey that injunction. My advisers have explained to me that they take the employer-employee relationship with the utmost seriousness. They hope that they will be generally regarded as trying hard to be good and caring employers. They believe in this.
They are typical of about 2,500 employer-members of the brethren currently running about 700 businesses in the United Kingdom. Their businesses tend to be small and probably none employs more than 20 people. That is partly because the direct relationship that they desire is easiest in a small business. It is also as the result of the brethren's belief that it is wrong to use complicated modern technology such as computers.
As Members of the Committee will be aware, Clause 1 of the Bill makes it unlawful to refuse a person a job because he does or does not belong to a trade union. Schedule 1, which we are now discussing, provides that a person who considers that he has been unlawfully refused employment because of trade union membership or non-membership can complain to a tribunal. Paragraph 5(1) of the schedule sets out
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what happens if the tribunal finds the complaint well founded. An order can be laid requiring compensation to be paid or a recommendation can be made that the injustice be obviated or reduced.
The amendment simply adds two conscience paragraphs. First, the tribunal can decline to make an order or a recommendation if it is satisfied that the respondent has a deeply held conviction which causes him to object to employing or providing services to members of a trade union. Secondly, it provides that the burden of proof in satisfying the tribunal of this religious conviction rests with the respondent—that is, the employer.
I am advised that members of the brethren have no criticism of the Bill's purposes in granting new rights to individual employees. Indeed, it strikes me that these rights will be very helpful to employees who are brethren. However, it is felt that the Bill omits rights in respect of employers, especially the minority whose religious conviction leads them to wish to avoid the intrusion of third parties in their employer-employee relationship.
I realise that the amendment poses problems of balance in how the rights of individuals who are employees can be impinged upon by the rights of employers when employees are in the weaker position and employers in the stronger one. After all, we are legislating for everyone and doing so to meet the conditions of the 1990s. At the same time, in this country we try to do our best for our minorities and accommodate their aspirations if we can.
I understand that the members of the Exclusive Brethren accept that as time goes on it is likely to be increasingly difficult for them to live out their particular beliefs and their particular interpretation of the Scriptures in the modern world. Despite the fact that they stand back from voting in elections they respect and pray for Parliament and the government of the day and they respect the laws which Parliament makes. That is why they are concerned to have a conscience clause to release them from the new obligations for employers imposed under the Bill.
I do not underestimate the problems involved in this amendment. I shall listen with interest to what Members of the Committee have to say on the matter —that is, if they have anything to say—and I await to hear whether the Government feel that it can be accepted or whether anything else could be done to help members of the Exclusive Brethren who are employers in their predicament. I beg to move.
Baroness Seear: I should like with some qualification to support the amendment in the sense that I believe that there should be room somewhere for a general conscience clause. I say that because it may not only be the Exclusive Brethren who have such problems. In this country at present we have many people with very differing beliefs which are strongly held. Providing it can be tested that people are genuine and that they are not hiding behind the conscience clause so as to defeat the purposes of the Bill, I think that we should try to find a way to meet this need. The total numbers involved will be very small. The people

539
who genuinely hold these views are not only those in the Exclusive Brethren; indeed, I can think of other similar groups. Therefore, there should be some provision in the Bill to enable people who hold these genuine convictions to gain exemption.
10.30 p.m.
Lord McCarthy: While I have a great deal of sympathy with the case for genuine conscientious objections, I am afraid that I cannot agree that a sufficient case has been made out on the basis of the amendment. It is an argument that we should have a conscience clause based upon a text, not upon a doctrine or a body of belief. The Second Epistle to the Corinthians is the text:
"Be ye not unequally yoked together with unbelievers: for what fellowship hath righteousness with unrighteousness? and what communion hath light with darkness?"
That is the text which the followers of the Exclusive Brethren take to mean that they cannot employ a trade unionist. It does not mean that to most Christian groups When Christian groups read the Second Epistle to the Corinthians the way they see it is that St. Paul is talking in the context of marriage outside the faith. He is not talking about trade unions. That is not surprising.
If we were to allow a conscience clause based upon a particular interpretation of a text I am afraid that we should have an infinite variety of conscience clauses. I do not know what we should say if someone came along and claimed on the basis of a similar text that they could not employ people of a certain race or sex. The amendment is altogether too wide.
Secondly, what follows in the Bill from not accepting the amendment? People are not being forced to employ trade unionists. They are being forced, if it can be shown that they refused to engage them on that basis, to compensate them in some way. If the awards of industrial tribunals in the past are anything to go by, they will not be compensated in any particularly generous way. In the unlikely event of any member of a trade union wanting to find employment in one of those places and, solely on the basis of membership of a trade union or any other such ground, not gaining employment, I cannot see why there should not be compensation. On both those grounds, I cannot support the amendment.
Lord Strathclyde: As my noble friend Lady Carnegy said, the amendment is almost identical to one tabled on Report in another place but not selected for discussion there. As has been apparent from the debate, the amendment arises from the anxieties of members of the Plymouth, or Exclusive, Brethren. I know that a number of Members of the Committee may have received representations from members of the Brethren on this matter. The Brethren are clearly good and decent people, whose sincerity and deep concern about the issue cannot be doubted.
That concern has already been raised with my ministerial colleagues by a number of honourable Members in another place and the matter was given very careful consideration. We found it a matter upon which it was not possible to reach a speedy decision. I am deeply impressed by the sincerity of the
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arguments put forward by my noble friend Lady Carnegy and the noble Baroness, Lady Seear, and, to some extent, by the noble Lord, Lord McCarthy.
Noble Lords on all sides of the Committee know that the Government firmly believe that people should be free to choose for themselves whether or not to belong to a trade union, and that a person's union membership or non-membership should have no bearing on the availability to him of job opportunities. An exemption which cut across that fundamental principle would be difficult to reconcile with the Government's commitment to protecting individual freedom of choice in that area. We have also been advised that there is a real danger that providing an exemption of such a kind would put the Government in breach of the European Convention on Human Rights—something that we wish to avoid.
I hope that my noble friend Lady Carnegy will not take it amiss if I also say that the amendment seems to adopt a slightly strange approach to achieving the kind of exemption that I think is required. It would have the effect that an individual who was refused employment by an employer belonging to the brethren —for instance, because he was a trade union member —could complain to an industrial tribunal. If it found the complaint to be well founded, the tribunal would be obliged to issue a declaration that the employer had acted unlawfully. However, that would be the end of the proceedings. The tribunal would have no power to award compensation to the applicant or make any recommendation concerning the employer's behaviour. The employer would have acted unlawfully but there would be no remedy for the individual who had suffered as a result of the unlawful act.
I have to say to my noble friend that in our view either there should be an express exemption for employers who act on the basis of a deeply held religious conviction or there should not be an exemption. We can see no justification for depriving the tribunal of its power to grant remedies for unlawful conduct if it thinks a remedy is appropriate.
As I have indicated, the principle behind the amendment has caused us considerable difficulty. The new right contained in the Bill not to be refused employment on grounds of union membership or non-membership is, after all, a natural extension of the existing safeguards which protect union members and non-members alike once they are in employment. The fact is that there is no religious exemption for employers in existing legislation conferring on employees protection against dismissal on the grounds of membership or non-membership of a union. This means that an individual working for a Plymouth Brethren employer who chooses to become a union member at any time after he has taken up that employment could not lawfully be dismissed on the ground of his union membership.
We have found it very difficult to see what justification there could be for providing an exemption of a type which has never been available to employers under the law relating to dismissals. Nor do we believe it would be right to amend the existing law so that

541
Plymouth Brethren employers could with impunity dismiss employees simply because they had exercised their freedom as union members.
This amendment, like those tabled in another place, raises very difficult issues. As I said earlier, we have considered these issues carefully over a period of time. We have not, however, been persuaded that it would be right to create the exemption that the Plymouth Brethren are seeking. I hope that what I have said to my noble friend will make her feel that we have explored every avenue and that she will be able to withdraw the amendment.
Baroness Carnegy of Lour: I thank the noble Baroness, Lady Seear, and the noble Lord, Lord McCarthy, for their contributions to this little debate. The noble Baroness, as I expected, was very understanding of the problems. I am sure that having listened to the government reply she understands the difficulties in dealing with it. I thank the noble Lord, Lord McCarthy, too, for putting the problem as he sees it from the viewpoint of the workers. We must do that because they are involved in this.
In reply to one point made by the noble Lord, Lord McCarthy, I do not believe that the brethren base their belief simply on a text or a series of texts. I have read about them, and Mr Bryan Wilson, Fellow of All Souls, explains that what is called the principle of separation runs right through their belief. There is an organised belief within this, albeit one which, as he says, is somewhat different from the position of most Christian groups.
I thank my noble friend on the Front Bench for a careful and understanding response to the problem. I appreciate very much the attention and care that the Goverment have given to it. It is extremely difficult and I am sorry if it is not possible to meet the situation with the amendment, given the various implications for workers in small and large firms. I am sure that the brethren will appreciate the care that the Committee has taken about the problem although they will be sorry that it is not possible to do anything. At this time all I can do is to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 72 not moved.]
Lord Strathclyde Lord Strathclyde moved Amendment No. 73:
Page 17, line 15, leave out sub-paragraph (5).
The noble Lord said: This is an entirely technical amendment which should be wholly non-controversial. The amendment removes from the Bill a provision which was, I regret to say, potentially ambiguous. Nothing has been lost and the Bill will be clearer as a result. I beg to move.
On Question, amendment agreed to.
Lord Strathclyde Lord Strathclyde moved Amendments Nos. 74 to 76:
Page 17, line 21, after ("House of Commons") insert ("or House of Lords").
Page 17, line 32, at end insert:
("(4) In this paragraph "relevant member of the House of Lords staff" means a member of the House of Lords staff appointed by the Clerk of the Parliaments or the Gentleman Usher of the Black Rod.
(5) For the purposes of the provisions of this Act relating to access to employment the holder for the time being of the office of Clerk of the Parliaments or Gentleman Usher of the Black Rod is the employer in relation to employment to which a person is appointed by the holder of that office; and anything done, before or after he took office, in relation to a person seeking such employment shall be treated as done by him.
(6) If the House of Lords resolves at any time that any provision of sub-paragraphs (4) and (5) should be amended in its application to any employment as a member of the staff of that House, Her Majesty may by Order in Council amend that provision accordingly.
Any such Order—

(a) may contain such incidental, supplementary or transitional provisions as appear to Her Majesty to be appropriate, and

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

Page 17, line 36, after ("House of Commons") insert ("or House of Lords").
The noble Lord said: I beg to move Amendments Nos. 74 to 76 en bloc. These are technical amendments which I believe give effect to the wishes of this Chamber. These amendments have been prepared in consultation with the authorities of this Chamber and I commend them to the Committee.
On Question, amendments agreed to.
Remaining clauses agreed to.
Schedule 1, as amended, agreed to.
Schedule 2 [Consequential amendments]:
[Amendments Nos. 77 to 81 not moved.]
Schedule 2 agreed to.
In the Title:
Lord Strathclyde Lord Strathclyde moved Amendment No. 82:
Line 3, after ("action") insert ("and ballots").
The noble Lord said: This amendment is entirely consequential. I beg to move.
On Question, amendment agreed to.
Title, as amended, agreed to.
House resumed: Bill reported with amendments.
House adjourned at sixteen minutes before eleven o'clock.