HL Deb 12 July 1990 vol 521 cc460-97

4.56 p.m.

House again in Committee on Clause 7.

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 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 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 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.

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 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 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

  1. (a) has the support of a ballot under this Part of this Act;
  2. (b) would but for this section be a breach of the contract of employment of that person; and
  3. (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 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 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 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 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 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 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.

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.

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?

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 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 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 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—

  1. (a) by virtue of a court order which subsequently lapses or is discharged, recalled or set aside, or
  2. (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—
  1. (a) to the court by virtue of whose decision it ceases to have effect, or
  2. (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—
  1. (a) that the result of the ballot no longer represents the views of the union members concerned, or
  2. (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 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 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 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 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.

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, 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 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 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 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 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 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 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 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
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.
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.