HL Deb 12 July 1990 vol 521 cc440-7

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 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 hocindustrial 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 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 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 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 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 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 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.

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.

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.