Employment Bill

HL Deb 12 July 1990 vol 521 cc500-42

House again in Committee on Clause 8.

[Amendment No. 46 not moved.]

Lord Wedderburn of Charlton moved Amendment No. 47: Page 9, line 7, at end insert: ("(1A) Subsection (1) does not apply to industrial action taken in contemplation or furtherance of a dispute which relates wholly or mainly to the conditions of work of employees taking part where it is reasonable for such employees to believe that the working conditions give rise to a danger to their health or safety.".

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 48. This amendment raises the question whether workers who stop work in the face of what may be called reasonably appreciated danger to life or limb at their place of work in order to have the danger rectified engage in industrial action so that the employer is thereby empowered by Clause 8 to dismiss any of them whom he chooses at his whim.

The number of industrial accidents is again on the increase. Few things are more important to the individual worker—indeed to all of us—than that he or she should not be subjected to the risk of injury by unsafe working conditions nor indeed to unreasonable dismissal for stopping work in the face of them. The Government chose in another place to fight this issue on a legal ground. It is necessary to meet it on that level. As it is an argument about the law, I must do so with proper care.

The Committee in another place has already been presented by the Government with the proposition that workers who face an unsafe condition at their workplace have some right to stop work. The Government's argument has been that a stoppage at work by reason of unsafe working conditions, with the obvious purpose of pressing the employer to make it safe in the normal case, is not industrial action at all within Section 62 of the 1978 Act and therefore has the same meaning within this clause and does not trigger the employer's powers given by the clause.

In answer to that argument I advance two submissions on behalf of these Benches. First, the proposition is at best doubtful and probably wrong as a matter of English law as the law and the clause stand and to achieve our common objective, which appears to be to ensure that workers who stop work in face of danger at the workplace are not regarded by the law as engaging in industrial action making them open to selective dismissal, the Government should accept an amendment along the lines at least of Amendment No. 47 or Amendment No. 48. The latter states quite simply that a refusal to work in unsafe conditions is not to be regarded here as industrial action. Secondly, I submit that there has been for the past 12 months a need for legislation to make this position absolutely clear by reason of our Community obligations under Directive No. 391 of 12th June 1989.

As to the first argument, based on domestic law, the Government's position rested on the proposition that it was illegal to work or to require a worker to work in an unsafe workplace.

That conclusion sometimes rested on and derived from the law of contract and sometimes from the criminal law. The argument that the employer would be giving the employee an unlawful order if he ordered him to work in conditions of danger was adopted by the Minister of State, Mr. Eggar, in the following ways. First, at col. 237 at Committee stage in another place on 1st March he said: An employee cannot be required to work in breach of criminal law, so workers cannot be required to breach the Health and Safety Act 1974". Secondly, the Minister broadened the argument into that based on contract. At col. 391 on March 20th in the Official Report in another place he said: It is unlawful to work in unsafe conditions … simply calling on employees not to do unsafe work or not to work in unsafe conditions could not in itself amount to an inducement to breach of, or interference with, the performance of a contract. Reasonable as those propositions are, on the existing precedents they are by no means a clear, correct statement of English law.

There are remarkably few precedents in regard to the law of contract. The most important which are usually discussed are two decisions in 1930 by your Lordships' Judicial Committee involving the Ottoman Bank. I quote from the authoritative study, The Modern Contract of Employment, by Dr. Freedland. He says that before there is a breach of contract by the employer, quite a high degree of unanticipated danger seems necessary to substantiate a claim of repudiation". That is repudiatory breach by the employer. It is therefore at best a very limited area under the common law.

Even if such an order—that is, an order by the employer to employees to work at a place which is unsafe or reasonably believed to be so—were a repudiatory breach of the contract by the employer, it is not at all clear that the employees can suspend work in face of such an unlawful order without themselves bringing the contracts of employment to an end. I stress that point to the Minister because the argument is not covered in another place.

The common law leans against unilateral suspension of contracts, rightly or wrongly. There is no precedent giving the employee the right to suspend the contract by ceasing to work in unsafe conditions and in the face of such an order rather than terminating it by accepting the employer's repudiation inherent in the unlawful order. If all that the employee has in common law is merely a right to treat the contract as terminated in face of such a breach—that is, the unlawful order to encounter danger—he has gained little, lost his job, and there is even added need for legislation.

Moreover, when we approach the interpretation of the recent legislation and the cases upon it—on which the Minister was kind enough to correspond with me —we find that in the area of unfair dismissal and strikes the courts have interpreted Section 62 of the 1978 Act by insisting that breach of contract is not determinative of the meaning of industrial action. Section 62 does not require that any breach of the employment contract should be part of the concept of industrial action on the one hand or indeed of a lock-out on the other. That was confirmed recently by the Court of Appeal in the case of Express and Star v. Bunday, in 1988 Industrial Cases Reports, 379.

That may be why the Minister of State in the debate at Committee stage in another place modified his position. On 20th March at col. 393 he departed from his absolute certainty and averred that it was "extremely likely" that an industrial tribunal would hold a concerted refusal to work to be industrial action, and that it would "depend on the particular circumstances". That is quite different from the proposition that it is impossible for a tribunal or a court to hold that such a concerted stoppage of work could be industrial action.

The Government's position in Committee in another place rested upon the contention that there was no judicial decision or statement which held that stopping work in the face of danger is industrial action. In the Official Report in another place at col. 392, Mr. Eggar said: Failure to work in unsafe conditions has never been held to be industrial action in the past 19 years". That interpretation of the law by the Government is, in my submission, erroneous.

It is true that the precedents are few. They begin with the case of Power Packing Casemakers v. Faust in 1983, where it was made clear that where workers had refused to undertake overtime which was voluntary —they were under no contractual obligation to do so —that was industrial action. But the Court of Appeal laid down the lines on which we should approach the understanding of the term "industrial action" in this context. Lord Justice Stephenson stated that if the worker, refuses because he and others who refuse with him hope to extract an increase in wages out of the employers because their business will be disrupted … that continued application of pressure is industrial action".

Later he states: The words 'industrial action' seem to me to cover even more clearly a refusal used as a bargaining weapon whether it is breach of contract or not".

The cases state quite clearly that any pressure on the employer, and a stoppage of work involving any pressure, is industrial action.

The Minster kindly wrote referring me to some of the precedents and stressing that the test is whether workers bring concerted pressure to bear on the employer. I entirely agree with him on that ground. However, the stoppage in the case of unsafe working conditions is not undertaken for academic purposes. It is invariably directed to put pressure on the employer to make conditions safe, as is his obligation. Pressure is the essence of the stoppage.

Moreover, there are earlier cases which controvert the Government's position. In Thompson v. Eaton Ltd. in 1976 employees surrounded a set of machines that were introduced by the employer without consultation or training. The court said that the argument had been put that the employers adopted a coercive attitude by applying disciplinary procedure to those employees. However, the court rejected the proposition that it was not industrial action. of course it was.

Later in 1979, in Marsden v. Fairer Stainless the Employment Appeal Tribunal accepted that approach and adopted the reasoning of Mr. Justice Kilner Brown, on which I rely, in an earlier case of Wilkins v. Cantrell in 1978. In Wilkins v. Cantrell the facts involved drivers who complained that they were told to drive lorries that were overloaded under the provisions of the Road Traffic Act 1930. That would be unlawful in two ways. First, such driving would be a crime; secondly, it would be a breach of contract by the employer giving them the order. Although there are passages in the judgment about which argument has subsequently gone one way and another, no one has ever controverted the clear holding of Mr. Justice Kilner Brown that when the employees took industrial action they were on strike within the meaning of Section 62.

It is a case where the loading of the lorries was supposedly in breach of the Road Traffic Act—a crime —and where the order to take them out would be a breach of contract by the employer. Yet it never occurred to anyone that that was not industrial action. There has been a line of comment on that case later which has never disapproved of that reasoning.

Workers who stop work for such a reason invariably do so in order to press a demand upon the employer that the unsafe system of work should be rectified. To achieve the result that the Government say they want—namely, that such a stoppage should be clearly not industrial action, giving the employer the added power to dismiss—some further clarification in the Bill is needed. Indeed, the Committee may conclude that merely by considering such cases and the reasoning in the judgments, that is an argument for making the law clear. I assure the Committee that there are a number of other cases that I have passed over without citing.

My second submission has a different dimension. On 12th June 1989, Community Directive No. 391 was adopted by the Council of Ministers. It is binding on the United Kingdom to put it into effect in our law. Article 8, paragraph 4, of the directive states: Workers who, in the event of serious, imminent and unavoidable danger, leave their workstation and/or a dangerous area, must not be placed at any disadvantage because of their action and must be protected against any harmful and unjustified consequences, in accordance with national laws and/or practices". Paragraph 3 of Article 8 obliges the employer to, take action and give instructions to enable workers … to avoid serious, imminent and unavoidable danger".

Paragraph 5 requires the employer to ensure that the employees know of the appropriate steps to take to avoid the consequences of the danger.

It is manifest that if the Bill passes in its present state, although the Government argue that by implication it means that such stoppages are not within the scope of industrial action, it could, because of the uncertainties in the domestic law and the clear line of authority against the proposition of the Government, be seen to be, if not a breach, at least some kind of evasion of our Community obligations. It will not be at all clear to an unscrupulous employer —and they exist—that he is to be prohibited from taking harmful action and possibly discriminatory dismissal of workers whom he—and sometimes the Government —call "troublemakers" who stop work in the face of what they say is a danger. If someone tells the employer that the new Act bans such dismissals he will ask, "Where does it say that?". That is the question that I ask the Minister. If the Bill does not say that, it would surely be unwise in the face of the specific words in the directive for the United Kingdom legislature to enact a Bill of this character.

I have looked at the correspondence between the Secretary of State and the TUC. There appears to be nothing which adds to the argument but, if the Minister corrects me, I shall be happy to look at it again. It is up to the Government to show in some way not yet thought of that without a shadow of doubt the Bill encapsulates the principles which the directive tells us we must adopt. It would be remarkable if this Committee passed the Bill as it now stands. I beg to move.

8.30 p.m.

Lord Rochester

I support the amendment. As the noble Lord has said, it attempts to deal with the vexed question of whether a collective refusal to work on grounds of perceived danger to health or safety constitutes unofficial industrial action. In another place argument on the point ended in deadlock, each side contending that the law was clear on the matter. However, from what I have heard tonight it appears to be anything but clear. At no time in another place did the Minister give chapter and verse for the Government's view that such a refusal does not amount to industrial action. The amendment seeks to put the matter beyond doubt.

I noted in particular the commendable provision that if employees who take part in industrial action are to retain the right to claim unfair dismissal it must be reasonable for them to believe that their working conditions give rise to a danger to their health or safety. I hope that the Minister will accept the amendment or give the Committee more convincing evidence to show that a reasonable refusal to continue working in unhealthy or unsafe conditions does not constitute industrial action.

Lord Strathclyde

These amendments relate to an issue about the terms of the proposed new Section 62A of the 1978 Act and, indeed, the present law on dismissal while taking industrial action. Both were debated at length during consideration of the Bill in another place. Throughout those debates the Government made clear the fact that we fully share the aim of ensuring that health and safety standards at workplaces are maintained or improved.

I doubt whether in the course of the next few minutes I shall be able to convince the noble Lord, Lord Wedderburn, that the Government's approach is correct. Nor, I fear, shall I be able to convince the noble Lord, Lord Rochester. It requires a belief—at any rate an understanding—that the current law is good enough to cover the points.

As I have already explained, it would be wrong to allow such special protection for those who choose to take industrial action. I also have to say that even if the word "simple" was included in the formulation, there would still be no case for a revised amendment along those lines.

The objections are threefold. First, as a matter of good practice the law should not be encumbered with unnecessary provisions, since, as I have explained, it will work quite properly in the absence of any such clarificatory statement; including something on those lines could only confuse those who, quite properly, would believe that it must have had some more substantive rationale.

Secondly, including such a provision might actually afford less protection to an employee who did, indeed, simply refuse to work in unsafe conditions and who would be liable to dismissal at present or in future if his refusal was based on a genuine belief about such a risk but a belief which turned out to be misplaced. The terms of the amendment apply only to conditions which are unsafe. However, that is not necessarily the right test. I am sure that the noble Lord, Lord Wedderburn, would agree with that point. It is possibly a matter of drafting.

Thirdly, and again because it applies to conditions which are unsafe, the amendment might protect employees who stopped work for reasons quite unconnected with safety—for example, for pay dispute reasons—if their conditions happen to be unsafe. However, I shall give the noble Lord the benefit of the doubt. I am sure that that cannot be what was intended.

The noble Lord, Lord Wedderburn, asked about UK compliance with the EC framework directive on health and safety. Articles 8(4) and 8(5) of this directive adopted in June 1989 requires that workers who leave their job or take other action in the event of serious and imminent danger shall not be placed at any disadvantage. There is no problem about UK compliance with the terms of this directive by virtue of the provisions of the Bill.

The way in which the present law operates and the way in which it will continue to operate means that no employee can be fairly dismissed for simply refusing to work in unsafe or dangerous conditions. That is what the terms of the directive deal with. The Bill changes no aspect of this and only affects the position of employees taking unofficial industrial action.

Lord Wedderburn of Charlton

I am grateful to the Minister, because my intervention may save time. I have never understood the force of the word "simple" used in the Minister's kind letters to me and now in his proposition to the Committee. Am I right in believing that it means that if workers stop work in the face of a perceived danger and do no more, that is not industrial action? However, is it right that, if they stop work and put pressure on the employer by demanding to have the situation rectified that is industrial action? Is that the Government's proposition?

Lord Strathclyde

Perhaps I may deal with that point specifically. I believe that that is the case. The noble Lord has set it up neatly; that is precisely the case. However, I should add that no court or tribunal has ever found that such simple refusal to do unsafe work amounts to taking part in industrial action for the purposes of the law on unfair dismissal.

Lord McCarthy

I wish to be clear about the matter. Let us suppose that a group of 30 workers stop work and say, "This is dangerous. We shall start work again only when you put a guard up". It appears that because, 30 people are involved it is industrial action. If on the other hand one worker stops work and says, "I will not start work until you put a guard up", is that industrial action? Is it industrial action if the workers say nothing but look as though they do not wish to start work before the guard is put up? What is it that translates the situation? Is it numbers? Is it what is said? Is it intention?

Lord Strathclyde

There is a basic principle of health and safety legislation which is that it is illegal to demand an employee to work on a machine which is fundamentally unsafe. So the point made by the noble Lord is already dealt with.

I agree that where employees simply refuse to do unsafe work there will often be an element of pressure on the employer to rectify the situation. However, we do not agree with the conclusion drawn by the noble Lord, Lord Wedderburn, that that element of pressure in itself means that there is industrial action.

The amendment before the Committee is not limited to cases of simple refusal alone. In fact, it does not rely on a motivation test at all. I suspect that the formulation of the amendment is designed to allow scope for employees to take what is industrial action —that is what I suspect is behind this amendment—and therefore to escape liability to be dismissed on the grounds that what was done also involves refusal to work in unsafe conditions.

We would not propose legislation that we believed would in any way undermine health and safety at work standards. This Bill does no such thing. These amendments seek in one way or another to modify the provisions of the proposed new Section 62A of the 1978 Employment Protection (Consolidation) Act. I urge Members to bear in mind just what those provisions are about. They are part of a package designed to deter and discourage unofficial industrial action—and I stress the words "industrial action".

The intended purpose of Amendment No. 47 is clear enough. It would mean that, where employees taking unofficial industrial action could show that their action was wholly or mainly about a belief that their working conditions were unsafe, their employer could not selectively dismiss any of them without risking claims of unfair dismissal.

We believe, however, that health and safety problems should be resolved by employers, who have the primary responsibility under health and safety legislation, in co-operation with the employees who may be affected. Health and safety inspectors also have a role in terms both of investigating concerns about such matters and of advising on or securing such action as may be necessary to ensure proper health and safety at work.

That approach is, of course, very far from a position which implies that in such cases industrial action, and unofficial action in particular, is a proper response—a position which Members opposite have taken. If so, I have to say that the Government could not accept any such philosophy. However, it is really not necessary to debate such issues in order to see why this amendment is essentially unacceptable. If it were enacted it would simply drive a coach and horses through the proposed new Section 62A. It would put a premium on those taking unofficial action associating that action with some kind of health and safety claim. But we are not in the business, surely, of carving out some special protection for unofficial action in this way.

Moreover, the amendment is actually quite unnecessary. In explaining this, I should address myself to Amendment No. 48. The present legislation on dismissal while taking industrial action was enacted by the last Labour government. That legislation, which prevented industrial tribunals from holding that the dismissal of employees taking such action was unfair, made no special provision for industrial action taken on health and safety grounds. In fact, there was no reason to do so in 1978 and there is no reason to do so now.

We are sure that simple refusal to work in unsafe conditions or to do unsafe work would not be held by any court or tribunal to constitute taking part in industrial action for the purposes of the present Section 62 of the 1978 Act, or for the purposes of the proposed new Section 62A. It is clear from a number of decided cases that the question of whether an employee who has been dismissed was taking part in industrial action at the time of dismissal will be determined as a matter of fact. Furthermore, in the case of Faust v. Power Packing Casemakers, mentioned by the noble Lord, the Court of Appeal identified motivation aimed at bringing pressure to bear on the employer as a key element in determining that the employees were taking part in industrial action. Where an employee simply refuses to do unsafe work, however, there is no necessary implication that his intention is to bring pressure to bear on his employer. It follows that where employees stop work simply because they fear for their own safety, that would not, of itself, constitute taking part in industrial action.

The health and safety argument as a defence against unfair dismissal in terms of unofficial action is a red herring. There is a ploy here. I cannot believe that there is a serious misunderstanding of what the law states. I could be wrong. In that case, I hope that what I have said and explained at some length—I have corresponded already with the noble Lord, Lord Wedderburn, on this matter—will allay fears and that it will be realised that what we both want is essentially heading in the same direction but by slightly different means. In the light of those remarks, I hope that the noble Lord will accept that these amendments are neither necessary nor desirable and will accordingly withdraw them.

8.45 p.m.

Baroness Seear

I may be rather stupid about this but I still do not understand the position. Can the noble Lord explain once again? If an individual worker really believes that the job he is being asked to do is unsafe and he simply refuses to work and just sits there not doing anything, that is not industrial action.

Lord Strathclyde

Yes.

Baroness Seear

If a dozen workers just sit there, is that still not industrial action? It becomes industrial action if pressure is put on the employer either singly or as a group. Is not the mere fact that there has been a stoppage of work a form of pressure? That is what I do not understand. When does it become pressure? If the employer wants to get the work done—and that is what strikes are all about—and the employee sits there refusing to use the machine and the machine is rented at £1,000 per week, surely the employee is putting pressure upon the employer. The noble Lord seems to be indicating that that is not pressure. In that case when can a refusal to work be seen as pressure? I do not understand the distinction which the noble Lord is making.

Lord Strathclyde

I have a certain amount of sympathy with the noble Baroness because it is a difficult distinction to make. It is quite clear that, although there is an element of pressure in itself by not working because of a fear of working on unsafe machinery, that does not necessarily mean that it amounts to industrial action. That is the point.

Baroness Seear

The noble Lord says that it is the pressure which determines whether it is industrial action. Are we agreed about that? It is the putting on of pressure which makes it industrial action; is that right?

Lord Strathclyde

It is the intention behind the stoppage of work.

Lord McCarthy

How does the employer know? If the employer went to a tribunal, how would the tribunal know? The Minister is saying that there are two forms of pressure: one might be called simple elemental pressure, which is lawful, and then there is another kind of pressure. We are trying to define that which is complex. It seems to me that if an individual says that he will not work until a guard is put up because the situation is unsafe, that is simple lawful pressure. However, if he says that he will not work until the guard is put up because it is unsafe and he also says something else —let us call it X—X enables the employer, and would enable the tribunal, to decide that there is unlawful pressure. The Minister is nodding, which is helpful. We now need to know the nature of X.

Baroness Seear

I cannot see that there is any greater pressure than refusing to work. That is what a strike is all about. Let us suppose that there is a valuable piece of machinery which is eating its head off in the stables—to change the metaphor—the employer is continually paying for it, and the chap is refusing to work. I cannot think of any greater pressure. He is not going to take a hammer to the employer, although he may do to the machine. However, what greater pressure can be applied than a refusal to work? The noble Lord is saying that it is all right to refuse to work as long as there is no pressure. What is the difference?

Lord Boyd-Carpenter

This is a very interesting discussion, but can my noble friend tell me whether incidents in which this matter has arisen have occurred, or are they purely theoretical?

Lord Strathclyde

All the cases which we are talking about here are entirely and purely theoretical. No court or tribunal has ever found any difficulty in dealing with this subject.

Perhaps I may go back to the noble Baroness, and I thank my noble friend for asking that question. Although there is a difficult distinction to make, the relevant law and precedents indicate that there is no greater difficulty in deciding the difference between pressure and undue pressure. Simply stopping work as a result of working with unsafe machinery would be perfectly acceptable. However, many different issues are involved. Ultimately, it is for the tribunal to decide in the light of the facts of each individual case. Surely that is the point. If we put into legislation the fact that a legitimate defence is a belief that you are working in unsafe conditions, we shall have the most ridiculous cases.

Office workers may say that the air conditioning is not working, and say they will go on strike. That would be a legitimate defence. If working conditions are genuinely unsafe and affect the employees' conditions of work, then the tribunal would decide in their favour. If the Government accept this amendment, that in itself would be a defence. It would totally negate the ability of the employer to selectively dismiss the employee on the basis that it was unofficial action.

Baroness Turner of Camden

Would the Minister not agree that it would totally negate the opportunity of the employer to put into operation unsafe working conditions?

Lord Strathclyde

No. There is no prospect of an employer obliging his employees to work in unsafe conditions. That is a red herring and has nothing to do with this point.

Lord McCarthy

Before the Minister leaves that point, what does he say about that? Does he say that if the employer requires his workers to work in an unsafe place, the workers can stop work and still have the advantage of their contract, or do the contracts then come to an end?

Lord Strathclyde

It is illegal for an employer to require his employees to work on unsafe machinery. That is clearly the basis of the law as it stands. These amendments have nothing to do with health and safety and everything to do with allowing employees to take unofficial action and be protected for doing so.

Baroness Seear

The Minister cannot get away with that. I do not speak for the Labour Benches, but I am quite clear that there could be perfectly legitimate cases for going on strike which need protection and which have nothing to do with encouraging people to take unofficial action. I agree with the noble Lord regarding the undesirability of unofficial action, and so does. the noble Lord, Lord Wedderburn.

The Government are interpreting my motivation in a way which, if the tribunal so interpreted it I would go to the Employment Appeal Tribunal.

Lord Strathclyde

I have said this before: clearly where employees stop work simply because they fear for their own safety that would not by itself constitute taking part in industrial action any more than it would if they refused to go back to work in the same conditions simply because they continued to believe that they were unsafe. No court or tribunal—this is a point made by my noble friend Lord Boyd-Carpenter, and noble Lords opposite know this perfectly well—have ever found that a simple refusal to do unsafe work amounts to taking part in industrial action for the purposes of the law on unfair dismissal. That must be the point. That must allay the fears of the noble Baroness, Lady Seear.

Lord Rochester

It does not. The noble Lord speaks of a remedy being to go to an industrial tribunal. Is it not the case that if somebody engages in what, in the view of the employer, is unofficial action—whether or not in the view of the employee or employees taking that action it is on grounds of perceived danger to health and safety—the employer has it within his power instantly to dismiss that person or those persons? The possibility of their going to an industrial tribunal cannot then arise.

Lord Strathclyde

As I understand it, that situation has not changed from the current law. We are talking about a new distinction of unofficial action. We have gone through what makes unofficial action and what does not make unofficial action. It is for the union to repudiate action which could be official. If it is official, there is no problem. If the union repudiates it and it becomes unofficial, then the employee knows full well the consequences of that decision.

Lord Wedderburn of Charlton

With respect to the Minister, there is no point in continuing with this debate. We intend to come back to this matter on Report. When the Minister and his advisers—and no doubt other Ministers—read the discussion, I have no doubt that they will reconsider the position.

This is a very serious matter. I say to the Minister —intending no disrespect to him—that it is a matter for consideration whether or not the Lord Advocate or the Lord Chancellor should answer for the Government on this matter on Report. I say that for this reason: in our view the Minister swept the directive aside. We felt that this was so and are entitled to have feelings.

I shall put my point briefly because I want to move on. I say this quite frankly to the Minister. There is nothing in the same brief as appeared in the Commons that adds very much to the argument. The directive makes no distinction about the motivation of the workers who stop work. The directive says that a worker faced with serious, imminent and grave danger can stop work. That is it. If the Minister thinks that the processes of Brussels have by implication left some curious subjective test limiting the principles of directive which are binding upon us, then we must have someone else to answer.

Lord Strathclyde

I must answer this point. This aspect of the Bill is not about health and safety at work. It concerns unofficial action. The directive is one thing. We have no problem with the British law on the health and safety directives. This aspect of the Bill concerns unofficial industrial action and nothing else.

Lord Wedderburn of Charlton

I appreciate the Minister's point but it covers only a small part of the ground, for this reason. I am sorry to be drawn on this point, but we must have it on the record in view of that intervention.

This Bill will give the employer a new power of disadvantage to the worker; the worst disadvantage a worker can have. I see that the Minister shakes his head. But it is a new power of selective dismissal. That is in the Bill. We are agreed. The employer can exercise that power in certain types of industrial action—unofficial action, and so on. Therefore, if he can exercise that power in the face of industrial action which is within the ambit of the directive's rights for workers faced with health and safety dangers, there is an issue on the directive.

The Minister gets out of that by saying that it is not industrial action. I shall come to that in a moment. We say that is not correct. The directive does not distinguish between a stoppage of work in face of a grave imminent peril at the workplace where workers are differently motivated. I take the example that the noble Baroness mentioned. Perhaps the Minister will allow me a moment to explain it to him. The 30 workers posited may be motivated in 30 different ways. Two may intend to put pressure on the management; two may not, and the other 26 may be doing what workers do.

I say this to the Minister. Workers stop work in the face of danger. I must tell him that years ago I knew workers who stopped work in face of danger. One was not quick enough and lost a limb; the rest were dismissed. The Minister is not taking this problem seriously enough, and that is what the directive is about.

Lord Strathclyde

The directive is clearly about self-preservation, where there is danger, and only that. That is not what we are discussing. Where there is clearly a genuine perceived danger over self-preservation, no court or tribunal in this country has found that to be industrial action and none will.

Lord Wedderburn of Charlton

With great respect to the Minister, the fact that there is not a case is the worst argument that a lawyer can advance. One then has to argue on principle. I can say that there is no case and therefore our propositions are correct. It is equally ludicrous.

I shall stay with the directive for a moment. If the Government are to say that this legislation has no relevance to Article 8 of the directive of 1989, then it should be said after the fullest consideration—this point was not raised in another place and perhaps I should have made that clearer, that the new point is the directive.

We shall leave the matter there and come back on Report hoping that the Minister has made all the necessary consultations, as I am sure he will. I do not withdraw in any way what I have said regarding the manner in which the government reply should come.

It is necessary to answer the particular points raised, which are really domestic legal points. The nub of the discussion was the question of what is industrial action. It is a combination or group of workers who stop work. That is what industrial action is. Everyone is agreed on that. The Minister agreed in his correspondence with me, and I believe at one stage this evening, that any stoppage—breach of contract or not, crime or not—which puts pressure on the employer is industrial action within Section 62 and Clause 8.

At one point the Minister said that a simple stoppage is not industrial action. He then said that a stoppage without pressure is not industrial action. Later he said that a stoppage without undue pressure is not industrial action. It is always possible for a tribunal to find that the Minister is right. Of course that is so, but I do not take the position that the Minister takes that there is such a thing as 100 per cent. certainty in these matters. There is an argument of principle which, in my view, does not lead in his direction.

However, taking those three different propositions, if I go to a group of workers who are faced on a construction site with dangerous machinery, how am I to advise them? I shall say, "Well, on one view, as the cage comes down if you exercise a simple stoppage that is all right". The workers say, "But perhaps that is pressure". The noble Baroness, Lady Seear, is right, it is pressure on the employer to stop the cage falling on them. I then say, "Well, provided you do not exercise undue pressure". What kind of law is this? This is the test on whether they can be dismissed, one by one. What kind of law is it that the Government are putting on the statute book?

Of course we disagree on policy. Noble Lords may have noticed that I read rather more of my opening speech than is customary—I believe I am not supposed to say that—because I wanted to have the propositions recorded accurately. I am not concerned with some esoteric principle or a curious interesting discussion, as one noble Lord said. I am interested in the fact that increasingly people are being injured at work, in offices as much as in factories and so on. For the Government to legislate in a way which is at least arguably in breach of the directive—it is at least that —and in a way that makes it impossible to advise people on how and why they can stop work in the face of danger, baffles the mind and leaves one exhausted. Therefore, I shall beg leave to withdraw the amendment with a view to bringing this back on Report as a major item.

9 p.m.

Lord Strathclyde

Before the noble Lord finally withdraws the amendment, I make two brief points. He twice referred to injuries and the fact that they have increased over the past few years. That is not the case so far as I can see. There has been a steady decline in fatal injuries since 1979. The incidence of fatal accidents has been considerably reduced over the past 10 years. That is important.

Workers who take unofficial action will be liable to selective dismissal. It will be for a tribunal to decide whether workers so dismissed were taking industrial action. Simple refusal to work in unsafe conditions is not industrial action. I do not think that I can convince the noble Lord, Lord Wedderburn, because he wants to see something on the face of the Bill, but that is our genuine position. We do not want people to be selectively sacked because they will not work with unsafe machinery. We stand by what we say.

Lord Wedderburn of Charlton

The Minister repeats the point he made, that a simple stoppage is not industrial action. We want to know what is a simple stoppage. Is it a stoppage that puts no pressure on the employer? How is it that a stoppage at an unsafe workplace does not put pressure on the employer to put it right? That is what we want to know. These questions can be answered on Report because the Minister has not answered them tonight. If those questions cannot be answered, there is nothing left of the ground on which the Government stand. I appreciate that there may be cases when industrial tribunals have the last word, but workers will hardly be encouraged to go to tribunals in the face of the speech made by the Minister, the speeches made elsewhere and, if I may say so, the letter from the Secretary of State to the TUC which said that refusal to do work will, in practice, only rarely be an appropriate response to an unsafe workplace.

The Minister said that injuries at work have been falling since 1979. I wish the Minister would not say that. He must know that the statistical base was totally changed and the reporting requirements totally changed in, I believe, 1983; certainly at about that time. Therefore, it is extremely difficult to make comparisons. I am saying that on the figures since 1983–84 there is not a downward trend. There is great argument about the underlying trend but there is an apparent increase in the number of types of injury. That is without exception. No doubt the Minister can also explain on Report the 1979 link and thereby do what no statisticians have been able to do—that is, make a link between the 1979 and the 1984 statistics. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 48 not moved.]

Baroness Turner of Camden moved Amendment No. 49: Page 9, line 7, at end insert: ("(1A) Subsection (1) has no application where the industrial action relates wholly or mainly to an an order or other act which it was reasonable for the employees to believe constituted the breach by the employer of a duty affecting some or all of the employees taking part which is imposed on the employer by the Health and Safety at Work Act 1974, the Equal Pay Act 1970, the Sex Discrimination Act 1975 or the Race Relations Act 1976.").

The noble Baroness said: The amendment seeks to come to terms with the fact that an employer can act in breach of the law, and act wrongly, and not simply employees and trade unions as the Government appear to believe. It also attempts to deal with what happens in real life rather than in the back rooms of government researchers.

Many unofficial strikes, as has been said repeatedly this evening, happen spontaneously in response to management actions on the shop floor. Many are settled quickly, often without recourse to union machinery locally. Many issues are connected, as has been said, with health and safety. On this very difficult issue I do not want to go over the long arguments we have just had; but I, for one, would be happier if, generally speaking, workers were much more health and safety conscious than they are. Perhaps then we would start to see a decline in industrial injuries and fatalities instead of, as in some industries, an increase. That is particularly true of the construction industry. I have mentioned that point on a number of occasions in this Chamber in a series of Questions.

I can assure the Minister that workers do not simply walk off jobs at the drop of a hat. Often they will put up with conditions that should not be tolerated. I know that from my own experience. I can remember when I was an official being told by anxious workers to leave matters alone because the money was good. Of course, I was not prepared to accept that. Often the workers were anxious because the employer was the only large employer in the neighbourhood. Therefore, it is not an easy matter. People are not bursting to take action, even to protect themselves and their families. When they do, it frequently takes the form of action short of strike action. They may turn up for work but refuse to work on a particular site or to handle machinery that they believe has inadequate protection. Such activity can often be sparked off by an incident at work, an accident or perhaps a near-miss. The employer may have been operating in breach of the Health and Safety at Work etc. Act for some time, but an incident will convince the workers that it should not be allowed to continue.

So far as I can see, judging from our previous debate and the extremely unsatisfactory response we received from the Minister, the workers who indulged in walking off the job in such situations would not have any protection. The employers could get rid of them and might sort out the people they believe are the ringleaders. The point is not that they were dismissed but that having been dismissed, under the legislation they would not have a right of appeal. I want to emphasise that because we keep on hearing about dismissals and so forth.

The point at issue is that dismissal takes place and there is absolutely no right of appeal; there is nowhere that people can go. That is absolutely disgraceful. It may be even more disgraceful when the employer is perhaps in breach of legislation such as the Health and Safety at Work Act or Equal Pay Act. There may be a dispute about equality in employment. Sparked off on the shop floor, there may be an immediate and spontaneous protest. The original fault may lie with the employer who is not acting in accordance with legislation already on the statute book. There may be a race relations issue and so on.

My amendment lists pieces of legislation that are binding on employers. Employees may find themselves having to make some kind of protest if the employer himself is in breach of the legislation. Like my noble friends, I wish to emphasise that in the Bill we are talking about a new doctrine—a new piece of protection for employers and a loss of rights for employees. If they take action the employees will not have a right of appeal. That is what these amendments are about. We have here a new situation in which people believe that they have quite legitimate grievances—because the employer is in breach of legislation already on the statute book—but cannot respond against it in a spontaneous way because if they do they lose a basic right. I beg to move.

Lord Boyd-Carpenter

This is a very odd amendment. We have moved from questions of safety at work, for which many of us have great sympathy for those concerned, to using industrial action as a means of enforcing other pieces of legislation against an employer. That cannot be right. If an employer is guilty of a breach of the Race Relations Act, for example, the proper course is not to take industrial action against him but to report the matter to the prosecuting authorities. The same is true of a breach of the Sex Discrimination Act or the Equal Pay Act. It is not a question of enabling employees to try to enforce the law by the use of industrial action. That would be a wholly improper use of such action. As this amendment would apparently legalise that provision, I very much hope that we shall not spend very much time on it and that we shall reject it.

Lord Strathclyde

As I said earlier, though I do not suppose I made it clear enough, the Government fully share the aim of ensuring that health and safety standards at workplaces are maintained or improved. We also deprecate any breach by an employer of any statutory duty arising under the terms of any of the various Acts mentioned in this amendment.

We would not propose legislation that we believed would in any way undermine health and safety at work standards. This Bill does no such thing nor does it in any way enable employers to disregard their statutory duties, either those arising under the Health and Safety at Work, etc. Act or any other legislation. In a nutshell, if employers breach statutory duties imposed upon them by relevant legislation, there should be no implication that the proper course of action is for the affected employees to take unofficial industrial action.

I should add that the terms of the proposed new Section 62A —I do not know whether the noble Lord, Lord McCarthy, is listening—apply only in respect of claims of unfair dismissal. Nothing in that section will affect the right of an employee to take a case against his employer on grounds of sexual or racial discrimination. It may be that the noble Baroness has misunderstood that. I hope that she has. There is nothing to worry about on this issue. I hope that she will accept what I have said and withdraw the amendment.

Baroness Turner of Camden

I do not intend to press the amendment this evening. I am not very happy about the response of the Minister either to this amendment or the preceding series of amendments relating to health and safety. This amendment refers to the Health and Safety at Work Act and other pieces of legislation. I am not arguing that the appropriate remedy is always by way of industrial action. However, I am saying that sometimes spontaneous actions take place on the shop floor if the employees perceive that a breach of legislation is taking place about which they are immediately concerned.

The obvious example is an incident at work that affects health and safety. There may be other incidents which breach other pieces of legislation. What we are anxious to ensure is not that people have an automatic right to take industrial action in all such cases but simply that if they do take such action and if they are dismissed as a result, they should not automatically be debarred from proceeding to an industrial tribunal. That is what all this is about; nothing else. However, I shall not press the matter on this occasion.

Lord Strathclyde

I should like to point out to the noble Baroness that it is not the employer who decides what is official or unofficial action; it is the tribunal.

Baroness Turner of Camden

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

Lord McCarthy moved Amendment No. 50: Page 9, line 22, at end insert: ("(3A) Where a trade union endorses unofficial action which commenced without an inducement or call on its part and without delay notifies the employer or employers of workers taking part of its intention to hold a ballot under the provisions of Part II of the Trade Union Act 1984, that Part of that Act shall not apply for a period of 7 working days following the date of that notification.").

The noble Lord said: We now turn from the special applications of the clause dealing with safety issues and other such matters to deal with the general effects of the clause. Despite what the noble Lord has said many times about all this being a matter for the union, the clause restricts the right to strike. Moreover, it restricts the right to strike still further, especially the right to strike unofficially.

Lord Strathclyde

Yes.

Lord McCarthy

It seems that we now have some agreement on the matter. We do not believe that the right to strike is a corporate measure which applies only to workers if they belong to trade unions and can only justifiably be operated through trade union procedures. We believe that in certain circumstances there is a right to strike, whether or not you are a member of a trade union and even in certain circumstances if that strike is not supported by the trade union.

Trade unions do not have a monopoly on what is right. If people have a right to strike, then they have such a right in certain circumstances. It is a right which this clause seeks to narrow. However, it does so in a particular way and that is what we are trying to clarify by way of this amendment.

It is quite true that the right to strike is narrowed, especially as regards unofficial action. However, this leaves the union and the worker in a strange and ambiguous position. The union is faced with an apparently simple choice between endorsing or not endorsing the strike. Of course, that is all right for the employer but the union and the union members are faced with a series of dilemmas as a result.

In our amendment we are trying to map out a logical, sensible and reasonable way in which the choice that is inherent in the clause can be faced by the union and by the workers. The clause says that if the union endorses the strike but can show to the satisfaction of the court that it did not induce it and did not act unlawfully in any way, and if it also makes quite clear to the employer that it intends to hold a lawful ballot within a reasonable period of time —we are saying, in effect, seven days—then the provisions of the clause, with the need to make the choice between instant validation or dismissal, shall not operate. For a period of seven days, so to speak, the union is free to hold a ballot.

I submit that in the real world as a result of the clause a union has three possible courses of action. The normal situation would be that the union will hear of the problem when it receives a telephone call from an employer who will say that the members of the union are on strike or that they have given notice of their intention to strike and that as far as he knows it is unlawful. In the employer's view it will be unofficial because it has no support and because there has been no ballot.

The Government appear to think that at that time one of two instant reactions should take place. That is what the union is effectively asked to do. The first is instant repudiation. This is expected to take place on the facts alleged by the employer. If there is instant action which takes the form of repudiation and it is done over the telephone or on the basis of a letter, there cannot be an investigation. Therefore, the union will not be able to visit the workers and ask them why they are on strike so that they may consider the situation and find out whether they are carrying out union policy. There will simply be instant repudiation and the union will leave its members to their own devices. We suggest that that is a very ineffective and very unfortunate alternative to put to trade unions. If that is the Government's intention, it would seem to be designed to drive a wedge between the union and its members. Moreover, it will not necessarily settle the strike.

Then there is the other alternative. Many trade unions may feel that this is what they must do because there is no other course open to them. I refer to instant endorsement. Again, without further investigation, without trying to find out what it thinks about the workers' claims and without linking the demand to union policy or views, it should instantly endorse. That will, we hope, put the union in a good position with its members. If the union adopts that as a conscious, deliberate and systematic policy, it may put it into bankruptcy. It would be saying, "We will back this strike. We have accepted that you are legitimately carrying out this activity and imposing these sanctions". Therefore any other group of workers in similar circumstances will also get union support.

If one looks at the matter sensibly that is not a viable alternative with which to face a union on either count. The union will therefore play for time. The sensible national official will plead for the right to investigate: time to go down to see what is happening and perhaps offer validation or endorsement—that will be the natural thing to do—to the workers if they will return to work and have a ballot. The union will be under considerable pressure in any case if it needs to get a return to work to offer validation of the industrial action if the ballot goes in favour of industrial action. That is an inevitable result of the clause. At this point we do not seek to set it aside.

It should be possible, and it should be clear, that it is lawful for the union to act in that way and to have seven days to bring about a lawful resolution of the difference as a result of a ballot. At the moment we do not know how legality goes: endorsement prevents dismissal, but if the strike continues before the ballot we do not know what will happen to the workers. On the other hand, repudiation saves the union, but the workers can be instantly dismissed. We suggest that there should be a period in which the union can discover the necessary information to decide what should be done, and in most cases I believe that the union will find that it will have to have a ballot.

The union should be able to say to the employer, "We did not try to produce this unofficial action but we will hold a ballot and if after seven days we find that there is no support for the strike, the workers, if they continue it, will be acting unlawfully and so far as we are concerned you will be able to use the new power that you have in the Bill without further opposition from the union". I beg to move.

Lord Rochester

Clause 6 provides for a senior trade union officer, based, let us suppose, in London to do his best to give individual written notice of repudiation of unofficial industrial action without delay to every union member whom the union has reason to believe is taking part or might otherwise take part in that action. According to Clause 8, those taking part in the action will need to be aware on the following day that their action has been repudiated by their union or they will lose their claim for unfair dismissal if they continue with their action.

It is that period of one day upon which I should like to concentrate. Even the noble Lord, Lord Boyd-Carpenter, to judge from the Question he asked on Tuesday, will agree that our gallant Post Office cannot be relied upon to deliver a letter to any location in the country within 24 hours, particularly if it is posted in the part of London in which the noble Lord resides. Whatever else we may disagree about, I hope that the Committee will accept that it is unreasonable to set up a statutory procedure under which one day only is allowed between the time the trade union repudiates the acts of its members and the time when those members have to be aware of that repudiation and can consider the consequences of continued unofficial action.

I approach this in a rather different way from the noble Lord, Lord McCarthy. I question whether the period of one day is reasonable in all the circumstances. The amendment seeks a means of mitigating the difficulties that may be caused by providing a period of grace of seven days within which the union may help to resolve the dispute. I am not so much concerned with the merits of the amendment as with the difficulty caused by the period between the repudiation and the time when members have to he made aware that their action is unofficial. I hope that the Minister will comment on the period of one day.

Lord Strathclyde

In addressing the amendment, I think that it is once again useful to remind ourselves that the Bill proposes a package of measures to deter and discourage unofficial action. In addition, the present law requires unions properly to ballot their members before calling or organising industrial action.

Before I go further, perhaps I may deal with the point of the noble Lord, Lord Rochester, which we shall discuss more properly under Amendment No. 51. I shall touch briefly on it now and perhaps Amendment No. 51 will not be called. The noble Lord's points about the post are fair enough. But the law does not require every single potential striker to receive a written notice of repudiation. Workers simply have to receive knowledge of the repudiation. Therefore, the warning does not need to go by post: it could go by telephone, telex, fax, even by word of mouth, from the local regional officer. That is why one day ought to be enough for anybody to get an important message over to his members.

Amendment No. 50 seeks to enable employees taking unofficial action—that is action which has not been called even by one of their union's officials—to avoid liability to selective dismissal for a certain period of time if the union gives notice to the employer that it intends to hold a ballot about the action. It would also give the union immunity for organising the action during the seven working days following notification to the employer of its intent to hold a ballot.

I should have hoped that noble Lords opposite would have gone along with the principle that unofficial action ought not to be encouraged by any responsible union. That may not be their position but it is the position of the TUC. Therefore I am surprised by this amendment in the noble Lord's name. As I understand it—the noble Lord, Lord Wedderburn, is looking at me in surprise—the position of the TUC is not to encourage unofficial action.

Lord Wedderburn of Charlton

I am sorry. I do not mean to interrupt the Minister, but he invites me to do so. I did not understand his formulation of the TUC's position on unofficial action. I did not hear the source of the quotation of its position.

Lord Strathclyde

It does not surprise me that the noble Lord asks me for the source and evidence because he probably knows that I do not have them to hand. However, I know that the TUC's position is in principle that it does not wish to see unofficial action encouraged.

Lord McCarthy

Surely the noble Lord can see the difference between wishing to discourage unofficial action and a situation in which one supports legislation which provides that those who go on strike unofficially have absolutely no rights.

Lord Strathclyde

I ask the Committee to remember that action is only unofficial when the union has repudiated it. If the union does not repudiate it and it has lawfully organised the action, it is perfectly official action. That is the point. The amendment proposes —does the noble Lord wish to labour the point further?

Lord Wedderburn of Charlton

I do not wish to labour any point—even by pun! The Minister was about to leave a point which had not been covered in debate and which my noble friend raised. Does he accept that where a union or an official who binds it authorises the action which has begun spontaneously so that it ceases to be unofficial action, from that point until the ballot can be completed the union is open to an injunction?

9.30 p.m.

Lord Strathclyde

It is an overriding principle of industrial relations law that no action need be taken until it has been balloted on. The whole point of modern industrial relations law is to avoid strikes. Inspiration has reached me about the reference to the TUC. I understand that in a letter to the Secretary of State for Employment about health and safety in Clause 8, the TUC took this position on unofficial action.

This amendment proposes that those taking the most irresponsible form of industrial action—that is, action which has never been called for by any union official—should be given protection against selective dismissal for a period of seven working days. That would occur if the union merely gave notice of nothing more than the intention to hold a ballot.

The provisions of the Bill will leave a union free to decide to hold a ballot on industrial action, following which it could have the protection afforded by a properly conducted ballot for a subsequent call to take industrial action. That is right and proper. The amendment, however, would mean that unions would almost certainly come under intense and possibly irresistible pressure to hold a ballot on industrial action wherever their members had embarked on unofficial action. By taking such irresponsible action militant members could virtually force such a course on their union by arguing that without such a step they would be left defenceless against selective dismissal.

Lord McCarthy

That is exactly what the Bill is doing. The Minister must have said 20 times tonight that it is for the union to decide whether action is official or unofficial. The Bill gives trade unions that single choice. They have to decide whether action is official or unofficial. If they decide that action is unofficial, they put their members at the mercy of instant dismissal. The Minister appears to be saying that the unions should recognise every strike in order to save their members from dismissal. Is that the policy of the Government?

Lord Strathclyde

It is not for a union to decide what is official or unofficial. It is up to the union to decide whether or not to repudiate action taken at a local level. There is a world of difference between those two concepts. Surely it must be better for a union that wants to hold a ballot on industrial action and contemplates making a dispute official to do all it can to convince its members taking unofficial action to return to work pending the organisation of a proper ballot. That strikes me as being the most reasonable position. However, that is obviously not the case with the noble Baroness.

Baroness Turner of Camden

Some members might have been dismissed by then.

Lord Strathclyde

The union can move perfectly fast enough to explain to its members that a far better course of action is to hold a proper ballot. As the amendment stands, there would be little incentive for a union to do that. During the seven working days following the proposed notification of procedure, the employer would be denied the freedom selectively to dismiss those taking unofficial action as a means of bringing it to an end. The noble Lord, Lord Wedderburn, admits that. The employer would be denied that option, whether or not the union eventually held a properly conducted ballot. That in itself leads to a further problem. The employer would not be prevented from dismissing all of those taking the unofficial action during the seven-day period. Accordingly, if the unofficial action was taken by only some employees, those calling for the action might argue that other employees should join in to make it more difficult for the employer to dismiss them all.

Finally, the amendment would create a situation in which a union would have protection against proceedings in tort even though it was organising industrial action but had held no properly conducted ballot. That would be completely contrary to the principles on which the present law concerning union liability operates and on which it has operated successfully for many years. In short, this amendment would undermine the intended effects of the proposed new Section 62A. It would also be highly damaging to good industrial relations.

I do not think I will have convinced Members of the Committee opposite, but I hope they will withdraw the amendment.

Baroness Seear

As I understand the groupings list, we were also talking to Amendment No. 51.

Lord McCarthy

I am sorry to disappoint the noble Baroness. We are not talking to Amendment No. 51, and at this time of night I do not intend to move that amendment.

Baroness Seear

We were speaking to Amendment No. 51. On the groupings list I have, Amendment No. 51 is grouped with Amendment No. 50.

Lord Strathclyde

On the current groupings list Amendments Nos. 50 and 51 are taken separately. However, I understand that on the proposed grouping list which was around yesterday and which the noble Lord, Lord Rochester, has the Government had proposed that Amendments Nos. 50 and 51 should be dealt with together. As it happens I have made my point about Amendment No. 51 and I hope that the noble Lord will accept that. However, the amendments should be taken individually.

Baroness Seear

It was because the noble Lord made a point about Amendment No. 51 that I wanted to say something. I do not accept his point that one day is enough. If unofficial action is taking place it is extremely likely that most of the people taking the unofficial action will not be in the plant. They will be at home or in the pub. That being so, I cannot see that the noble Lord's argument about how the union is to contact them stands.

He said that notification could be sent by fax. Most employees, even in these enlightened days, do not have fax machines in their own homes. The idea that the information can be put round in that way simply does not stand up. The noble Lord seems to think that the workers will all be hanging round the factory yard. They will be doing no such thing. They will be all round the countryside, at home or in the pubs. One day is not enough.

Lord Strathclyde

The noble Baroness makes an excellent point. No doubt the fact that the employees will not be hanging around the yard will be useful when we deal with other amendments.

The period of grace is not intended for unions to send out written word. It is intended to give the union an opportunity to get the message to its members by whatever means may be quickest and available to it. It must be able to show that it has tried to do so. All it takes is a phone call to the local union representative; he can walk round a few pubs. He must be in contact with the members.

Baroness Seear

They might be in 50 different pubs. Is the noble Lord seriously suggesting that the local union official has to go to 50 different pubs?

A noble Lord

Yes, he is.

Baroness Seear

What are the Government encouraging people to do?

Lord Strathclyde

I simply used the example which the noble Baroness gave. If the workers who are on strike are in the pub, that is entirely up to them. The point is that if people are on strike it is a serious issue. The union officials must know where to find the majority of them. They do not have to contact every single one of them, but they have to show that they have tried. That is the point. That is why one working day is sufficient. However, we are not discussing that amendment unless the noble Lord, Lord McCarthy, chooses to move it, which I hope he does not.

Lord McCarthy

I apologise to the noble Baroness if changing the groupings at the last minute meant that she thought that we were discussing a different amendment. The Government grouped Amendment No. 50 and Amendment No. 51. We take them to be very different and therefore wanted to take them separately.

Amendment No. 51 deals with what the noble Lord, with a sense of irony, calls the period of grace. We tried to have the period of grace increased by a much smaller period than seven days; it seemed to me that at this time of night it was not much good trying to get seven days out of the Government, so we shall not move that amendment. However, I come back to the amendment that we have moved, which is Amendment No. 50.

I do not want to stimulate the noble Lord into making another speech, but I may get somewhere if I can say something and, depending on whether he agrees with it, we can put down an amendment on Report to test it out. We are talking now about the position of the union. In this amendment we have given up talking about the position of the poor worker; we are talking about the union. The Minister speaks as if it was absolutely clear in either case; the union can decide on endorsement or on repudiation and so long as it gives a clear decision on endorsement or repudiation and follows through the provisions of the Bill it cannot be liable. If that is the case we can put down an amendment to that effect on Report and we can expect to receive support from the Government.

We do not believe that at present the position is at all clear. We fear that a union could endorse an action, but if it was unable to get all of its members to return to work it could find itself in a serious legal difficulty if it had not yet held a ballot. It might find itself subject to some form of liability. It might very well find itself subject to injunctive procedures. That is what we fear in the case of endorsement. Similarly, we fear it on repudiation. We believe that if the union repudiates its members, that may appear to save the union—but not if the strike continues. If the strike continues, the same problem might arise for the union. So, if the noble Lord says that it cannot happen, he must be prepared to support an amendment which we will put down on Report to the effect that no form of liability can conceivably arise.

Let me give him a very doubtful case of possible liability on repudiation. Let us suppose that the union nationally goes through the motions. It follows the provisions of the Bill to the letter. But suppose that one of the local officials—an official who is an official under the terms of the Bill—endorses. Let us suppose that he manages to carry out a ballot. Does that change the situation? Or let us suppose that he carries out a ballot and the ballot is not quite lawful, because some irregularity occurs in it. In that sort of situation, can the union in any circumstances be liable? The Minister seems to say that it cannot be liable. Therefore will he accept an amendment to that effect on Report?

Lord Strathclyde

No.

Lord McCarthy

If the Minister tells me that, we shall come back on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 51 and 52 not moved.]

The Deputy Chairman of Committees (The Viscount of Oxfuird)

The next amendment is Amendment No. 53, and I must advise the Committee that, if this amendment is agreed to, Amendments Nos. 54 to 57 cannot be called because of pre-emption.

[Amendment No. 53 not moved.]

Lord Strathclyde moved Amendment No. 54: Page 10, line 8, after ("Protection") insert ("(Consolidation)").

The noble Lord said: This is a fairly minor amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 55 to 57 not moved.]

On Question, Whether Clause 8, as amended, shall stand part of the Bill?

9.45 p.m.

Lord Wedderburn of Charlton

My noble friends and I have given notice of our intention to oppose the Question, That Clause 8 stand part of the Bill. It has been a matter of some regret to us not to move some of the most recent amendments between Nos 52 and 57. In doing so, we had in mind a number of matters: first, the hour and the position in the Committee; and, secondly, the fact that there has been over the earlier amendments considerable discussion of various aspects of Clause 8, and we wanted to look again—as it were to believe with our eyes what our ears told us —at the Government's attitude to this objectionable clause.

The noble Lord, Lord Rochester, said earlier that this was perhaps the nastiest clause in the Bill, which it is. We shall not divide on it, as we intended, again because of the hour. We shall come back to all the aspects, within all the rules that bind us on Report, looking at the clause against the history of our own labour relations law and against the history of previous governments' legislation and of this Government's legislation.

As a matter of fact, it is rare that they have gone anywhere near as far as this to give the employer untrammelled power, at his whim, to select hostages, as it were, out of the workforce who have merely stopped work, however far one disapproves of unofficial action and prefers not to see it. Spontaneous stoppages of work occur in every democratic society. The way in which they are dealt with varies according to the legal system, but there is no comparable system which bolts the doors of every court and every tribunal to an employee who has been arbitrarily selected—that is the point—for dismissal.

With regard to international standards, the Government's attitude has been rather astonishing. It is not just a matter of the International Labour Organisation conventions; it is also a matter of the social charter of the Council of Europe and the Convention on Human Rights. All those standards point in a totally different direction from Clause 8.

I must tell the Minister that it causes more than a certain degree of surprise to find Ministers for the first time—I do not think that it has happened before; this is a new breed—speaking with disdain as experts on matters which are intrinsically questions of law and of interpretation of the conventions. They also speak disdainfully about a committee of experts—a body which includes three judges of the International Court, seven leading justices and judges from superior courts, including superior labour courts, in various countries, and 10 other eminent jurists, some of them also judges, specialising in the subject. That the Government can treat the pronouncements of the committee of experts of the ILO in such a way causes a little surprise. I do not have to quote again the passages which make it clear—

Lord Strathclyde

I do not call the decisions of the committee of experts of the ILO into disrepute. We point out that the ILO has never condemned the Government.

Lord Wedderburn of Charlton

That is an ambiguous proposition. There is a sense in which it is correct. It is true that the ILO governing body has never included a condemnatory paragraph in its general report. That is what the Minister means. The Government will do their best to ensure that that does not happen. However, they are not doing their best by argument; they are doing their best by other means.

The committee of experts has advanced arguments and interpretations of the law of international standards to the Government. Among those arguments is the proposition—I shall quote it now as the Minister has intervened—that: it is inconsistent with the right to strike as guaranteed by Articles 3, 8 and 10 of the Convention for an employer to be permitted to refuse to reinstate some or all of its employees at the conclusion of a strike, lockout or industrial action without those employees having the right to challenge the fairness of that dismissal before an independent court or tribunal". That is the ILO position, which the Freedom of Association Committee has also observed.

The Government do not agree with that as they have included Clause 8, which flies in the face of the ILO committee of experts and of the Freedom of Association Committee. By domestic standards, it is an objectionable novelty which will certainly not help industrial relations, as the noble Lord, Lord Rochester, has more than once pointed out. By international standards, it is a further convention by a government who have become known in international labour law as the hooligan of international and comparative labour law.

The Minister does not like that. He should go and listen to what is said by people who find out what goes into his legislation. I do not like it either. I do not like my country being condemned in that way by everyone other than the British Government representatives. The Minister does not like it either. That is something we have in common. Perhaps he will change his legislation and then we could both have a happier time.

However, the Minster will not change his legislation. The Government will press the clause. We shall examine the debate as carefully as we can to see whether something can be saved in the interests of the individual employee. The Government claim to stand for the individual but, when he is an employee, they allow him to be selected for dismissal. We dislike the clause very much and hope to return to it on Report.

Lord Rochester

There is not much more that I can say on this objectionable clause that has not already been said. However, perhaps I may put on record that, if in future it is to be open to employers to single out for dismissal individuals taking part in unofficial industrial action, I do not believe that they should be entitled to do so without having to justify their action before an independent arbiter. In my view, that is an elementary principle of justice. I am strongly opposed to the Government's action in departing from that principle in this clause.

Lord Strathclyde

I recognise that this is an immensely important clause of the Bill and so I shall spend a few moments justifying our position.

At present the law on unfair dismissal while taking part in industrial action makes no distinction between action which is "official" and action which is "unofficial". The time has come to change these arrangements. It is clear from previous debates that the Government and the Opposition have quite different perceptions about the seriousness of unofficial action and the need to reduce the scope which the present law allows for such action. It is important to remember that unofficial action is unauthorised and usually unballoted. This means that unofficial industrial action will not have been preceded by proper democratic procedures. The Opposition have shown that they are determined to resist changes to the law designed to discourage and hamper unofficial action. I am content to leave it to the Committee and to the public to draw their own conclusions from that.

The Government believe that the problems which unofficial action causes to employers and to the community can no longer be ignored. Employers should not be left powerless, without a legal remedy, in the face of unauthorised and unballoted industrial action. The Green Paper put forward proposals for changes to the present law. They won substantial support.

The particular provisions of Clause 8 will give employers faced with unofficial action a remedy which they do not at present have; that is, selective dismissal of those choosing to take such unofficial action. These measures will not affect the present position of those taking official action. They are, and will remain, protected by the provisions of Section 62 of the 1978 Act. It is worth bearing in mind that the provisions of Clause 8 mean that members taking industrial action in response to a call by any official of their union will be protected against selective dismissal unless and until the action is repudiated by their union.

So it is helpful to summarise some basic points about the way in which the provisions of Clause 8 work. First, the clause has no significance whatever for the liability to selective dismissal of anyone taking official action. Secondly, where an employee is dismissed, it will remain open to him—as now—to test whether he has a right to claim unfair dismissal by making a complaint. Thirdly, where such a claim is made by an employee with the qualifying period of service to claim unfair dismissal, it will be a matter of fact for the tribunal to determine whether the employee was dismissed while taking part in industrial action; if so, whether he was "selectively" dismissed, and if so, whether he was taking part in unofficial action at the time of his dismissal. Only if the answer is yes to all three questions would the provisions of the new Section 62A of the 1978 Act mean that the tribunal could not determine the fairness of the dismissal.

The cornerstone of these provisions is this. The Government believe that giving employers greater freedom to dismiss those who choose to take unofficial industrial action is likely to discourage employees from embarking on, or continuing with, such action. It follows that if employees refrain from unofficial action, there will be no grounds to enable an employer to dismiss anyone selectively by virtue of the provisions of Clause 8.

I should add, of course, that there will be no obligation on any employer to make use of this new freedom. It will be for each employer to decide for himself when this response is appropriate in the circumstances of any particular dispute. In practice dismissal of those taking industrial action is very rare. It is, we believe, reasonable to expect that employers will continue to be guided by common sense and practical considerations. That is not to say that the Government expect selective dismissal of those taking unofficial industrial action never to take place. But we do not believe that the anomaly in the present law, whereby an employer must dismiss all or none of those taking unofficial action, can be allowed to continue.

The debates we have had on the provisions of Clause 8 have been very interesting. The Opposition have made it clear that they find almost every aspect of the provisions objectionable, obnoxious, nasty and so on. However, the Government believe that the scope which the present law allows for unofficial action must be restricted. The provisions of Clause 8 are a vital element in what the Bill proposes as appropriate reform of the present law. We are confident that our view is shared by those who really want to see unofficial, wildcat action discouraged so that our country's industrial relations record can continue to improve. I commend the clause to the Committee.

Lord McCarthy

Before the noble Lord sits down, he has usefully summarised what the clause will do. He has not mentioned any additional liabilities accruing to trade unions. Therefore surely he will support an amendment that we shall put down at Report stage to say that nothing in the clause shall in any way add to the liabilities of the trade unions.

Lord Strathclyde

That is absolutely true if the unions repudiate the action.

Clause 8, as amended, agreed to.

Lord McCarthy moved Amendment No. 58: After Clause 8, insert the following new clause:

("Codification for clarification Within six months of the passing of this Act the Secretary of State shall cause to be published a codified text comprising the amended statutory provisions of the Trade Union Act 1913, Trade Union and Labour Relations Act 1974, Employment Protection Act 1975, Employment Protection (Consolidation) Act 1978, Employment Act 1980, Employment Act 1982, Trade Union Act 1984, Employment Act 1988, Employment Act 1989 and this Act.").

The noble Lord said: The Committee will be pleased to know that we are changing the subject. The objective of the amendment is to persuade the Government to consider some form of consolidation or codification of the spate of legislation that we have had since 1979. We do not ask simply for the bringing together of the provisions of the six Acts dealing with trade union and worker rights since 1979. They did not exist in a statutory vacuum. They had implications for existing Acts up to that time which governed labour law, in particular the Acts of 1913, 1974, 1975 and 1978.

Leaving aside the provisions of the 1906 Act, 10 main Acts are involved. We suggest that it is time that the different and in many ways complicated provisions of those Acts were brought together in some form of clarified or codified text.

I estimate that the provisions cover 706 pages and 1,079 sections and weigh 2lbs 10oz. It seems to me that somehow we could find a simpler and more straightforward way of placing them on record.

We could all give examples of different legal liabilities and immunities which require people to trace their way through the Acts of 1906, 1974, 1980, 1982, 1984 and so on. Trade union immunities for tortious action and the legal boundaries of picketing are particularly complicated subjects.

Lord Strathclyde

The noble Lord has undertaken a great deal of impressive research. It may help if I very quickly respond to the points that he makes, because I think that I know what he will say.

Perhaps I may quickly state that the Government keep under review the possibility that it may be appropriate at some time in the future to come forward with a consolidation measure. I hope that that will not be taken to imply that the process of reforming industrial relations and trade union law is in any sense complete, as we have always made clear.

Perhaps I may also confirm that we shall give priority to updating the present series of free guidance booklets issued by the department. In the light of that reassurance, I hope that the noble Lord will feel able to withdraw his amendment. I am not giving a commitment to consolidation. I simply say that we are looking at the question very seriously.

Lord McCarthy

It is a novel procedure for the noble Lord to interrupt us and give us nothing. I suppose that it is the procedure that we have to put up with. He has given us nothing. He said that he is thinking about it. Does he accept the mess that the law is in? I shall not bore him yet again by reading out what the ILO said although I could.

Perhaps I may quote what the Master of the Rolls said in a recent case of the Post Office v. UCW. He said: May I say at once that the union has throughout acted in the wholly genuine belief that it was entitled to take the industrial action which it did and there has not been, and is not, the slightest intention on its part to depart from its strict legal rights. May I also say that, although I have no doubt about the correctness of our conclusions, this legislation is a minefield in which it is all too easy to stray from the paths of safety and legality". It is a minefield. We are not asking the Government to give one of the Minister's stock three answers: "We are reviewing it. We are thinking about it. Go away and come back another day". We are saying, "Don't give us the answer that it is postponed. Tell us when you are going to do something about it". I beg to move.

Lord Strathclyde

I do not have a great deal to add. I am sorry but the only succour that I can offer the noble Lord is to point out that for ordinary people —not academics and others well-versed in legal procedure—who wish to find out what the law is we shall be updating the present series of free guidance booklets issued by the department. I do not believe that that will satisfy the noble Lord, but there is nothing more that I can say.

Lord McCarthy

There might be nothing more that the Minister can say but he knows that those publications are largely useless. However, given the time of night, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 59 not moved.]

10 p.m.

Clause 9 [Proceedings in respect of which assistance may be provided]:

Lord Wedderburn of Charlton moved Amendment No. 60: Page 11, line 2, at end insert: ("( ) Where the Commissioner has provided assistance to a person in proceedings against a trade union or other party, that trade union or other party may at any stage of the proceedings, whether before or after judgment, apply to the court for a declaration that the proceedings are vexatious, frivolous or otherwise not founded on reasonable grounds, and in such case the court shall award such compensation to the applicant as it considers just and equitable of an amount not less than the sum so provided by the Commissioner.").

The noble Lord said: Clause 9 deals with the commissioner or, as the office is known in the trade, the CROTUM. The office of commissioner was set up by a special statute and we wish to make an amendment to what is provided in respect of the functions in Clause 9.

I can put the matter briefly. The basic power of the commissioner is to finance proceedings. It is a wide power. Until 1967 we had wrongdoings called "champerty" and "maintenance". They controlled the financing of legal proceedings and the meddling in them. The policy behind those wrongdoings was clear. Although the wrongs have been abolished, there is still a policy which is to be supported. To set up a public office, the sole purpose of which is to finance litigation, demands the most rigorous checks and balances. That is especially so when public money is being spent on litigation and where the primary defendant is always the same; that is, the trade union.

In the report dated 30th June this year the CROTUM states that, once the commissioner has agreed to pay for legal advice or representation in particular proceedings, the union member supported need incur no further significant costs in the proceedings. What will happen if the commissioner makes a serious mistake? Everyone, even the Government, can make mistakes. What will happen if the other party wins the action but discovers the person supported has no resources? Our amendments raise the question of costs. We see no reason why the CROTUM should not in some circumstances be responsible for costs. We say that where there has been support of proceedings which turn out to be frivolous or are not otherwise founded on reasonable ground, the court should have power to award compensation to the applicant. That should be paid for by the commissioner, who from the beginning was the engine of litigation.

It is interesting to note that there is an example of that in the sparse report of the first year of the CROTUM's activities. Page 5 indicates that the only two applications for assistance to seek interlocutory injunctions under the Employment Act 1988 were supported by the commissioner but lost. In other words, there were two instances of litigation where the defendants succeeded. Yet, as the law stands, however unreasonable, frivolous and culpable was the commissioner's support of the plaintiff, the defendant union would have had no recompense against the commissioner. We say that that is an unreasonable position. Perhaps the precise wording of our amendment can be criticised, but at this hour of the night I should give way on any point of drafting.

We say that the principle is shown in the report to be in need of action. Before we reach the Report stage, will the Minister provide further details of the two actions in which the CROTUM's assistance failed to win the injunction which was claimed? Will the Minister provide the information, if necessary in confidence? We can then discuss with him the serious instances in which the only two cases to be supported have failed. We say that the first report increased the strength of the case. It does not depend on the first report, but there is a strong case for saying that in some circumstances the CROTUM should be an office which pays compensation for wrongs done to a defendant. I beg to move.

Lord Strathclyde

Amendment No. 60 would provide a special procedure whereby courts would be obliged to award a certain level of compensation if proceedings are found to be vexatious and frivolous and so on. It is, however, unnecessary.

In the unlikely event that the commissioner was to grant assistance in a case which was frivolous, vexatious and so on, the trade union would have the same protection under the rules of court as any other defendant who has such proceedings brought against him. The union can apply to have the pleadings struck out. If the union is successful the court will make the appropriate order of costs in its favour. Furthermore, because Section 21(3) of the 1988 Act requires the commissioner to indemnify an assisted person in respect of any order for costs or expenses made against him or her, the defendant trade union need not worry about the personal means of the assisted person.

There is no evidence that the commissioner would give assistance for frivolous or vexatious proceedings. In fact if she is inadvertently misled in doing so by an applicant, subsection (1)(a) and (b) of Section 21 of the 1988 Act provides that the commissioner will he entitled to recover from such an applicant an amount equal to any sum provided in pursuance of that application.

The noble Lord, Lord Wedderburn, requested some information. I shall see what I can do.

Lord Wedderburn of Charlton

I am grateful for the Minister's last remarks. He will see what he can do, and I hope that he can do something. I take his point on costs. I may have gone too far on costs but there is still a case as regards what I agree is the unlikely event of frivolous actions. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Turner of Camden moved Amendment No. 61: Page 11, line 2, at end insert: ("( ) The Commissioner shall cause to be published annually audited accounts in respect of his office and functions.").

The noble Baroness said: This is a very simple and, I should have thought, uncontroversial amendment. It calls for the commissioner to publish annually audited accounts in respect of the office and functions.

When the office was first established, government spokesmen were fond of referring to it as though it were another commission rather like the EOC. In fact, in proportion to the work done, its office is lavishly funded compared with the EOC of which I was a member for many years. The EOC has an enormous task to carry out and does so with very limited resources.

Moreover, the EOC publishes a full record of the work done, the projects financed, the cases supported and an account of its financial expenditure, all of which appears in the EOC report of which I have a copy. However, when that is compared with the very thin report produced by CROTUM nothing of the kind appears. In fact there is this sentence: The accounts of the commissioner prepared under paragraph 9 of Schedule 1 to the 1988 Act are to be published separately by order of the House of Commons".

In other words, the accounts are not published in the report. As my noble friend has indicated, although the office was established, as I understand it, to provide legal assistance, only two cases seem to have been legally assisted, both of which failed. We should very much like to know, along with the report of activities, precisely what has been the expenditure and how the money which has been allocated to that office has been utilised.

I understand from another source that the amount involved last year was £250,000. A great deal more money than that was made available to the commissioner. I should like to know exactly how the finances have been disposed of. The only way in which that can be dealt with is by a requirement that the commissioner shall cause to be published annually audited accounts in respect of the office and functions. I beg to move.

Lord Strathclyde

This is a small amendment. I believe that the noble Baroness has become very excited about nothing. In technical terms the commissioner is a non-departmental public body. Thus, under the provisions of paragraph 9 of Schedule 1 to the Employment Act 1988 the commissioner is already required to prepare audited accounts. The noble Baroness knows that because she mentioned it.

The statement is examined, certified and laid before each House of Parliament by the Comptroller and Auditor General. That is the usual procedure for non-departmental public bodies.

The commissioner's second annual report, which was laid before your Lordships last Monday, was the first report that she has issued which covers a full year. I am not exactly sure what point the noble Baroness is making. Perhaps I may look at her words. In the meantime I feel that her amendment is unnecessary and hope that she will withdraw it.

Baroness Turner of Camden

I do not intend to press the amendment. I am grateful for the Minister's assurance that he will consider what I have said. It is very simple. Instead of having this statement in the report, why can we not have the audited accounts, which are published along with the report, actually in the report? The EOC and other similar bodies do that. That is my main point. It is small. I do not press the amendment but I shall be grateful to the Minister if he will look at it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 9 shall stand part of the Bill?

Lord McCarthy

We are opposing the Question, That this clause stand part of the Bill, though at this time of night we do not intend to press it to Division.

The case for the CROTUM is not supported by the annual report of the CROTUM. Fortunately for us its publication just before this debate was timely. Its appearance is typical of the way the Government publish reports. They become bigger and glossier and contain fewer words. The point about this report is that there appears to be no price. My first question is: what is the price of a report on the CROTUM? The report does not justify the continued existence of the CROTUM and does not justify the extension of those powers.

An under-utilised Rolls Royce service is revealed. It compares extraordinarily with all other forms of aid to workers when they are taking civil actions, not against trade unions, but against employers. It reveals that the CROTUM has virtually nothing to do, and not because the CROTUM has not done her best to drum up work. The chapter on publicity tells us that there have been national press conferences, interviews on local and national radio, interviews on television and feature articles ad nauseam. Thousands of copies have been produced at a cost of £250,000. That has been the cost of the CROTUM for 12 months.

The report tells us that the result was 324 inquiries —one 'phone call a day. Of those 324 inquiries, 184 had nothing to do with the legal activities of trade unionists. They are not covered by the previous Acts and will not be covered by this Bill. What were those telephone calls concerned with? Perhaps they were about the poll tax.

There were 70 inquiries within the bounds of the CROTUM. In only 29 cases—it is not really 29 but the report says it is 29 in the first instance—was it found advisable to take it to the point where the CROTUM could advise the individual who rang up or sent a postcard, to make a formal application. In other words, the CROTUM sent out 29 forms. That was in a period of 12 months.

This is the cheat. Nine turned out on further investigation to be outside the scope of the power to assist. In other words, 29 forms were sent out but nine need not have been because, if the CROTUM had looked more carefully, she would have realised that they were outside the ambit of her powers. That means that there were 20 cases at a total cost of £250,000.

Was it the case that there were 20 convictions or 20 cases where it became clear that unions had broken the law? No. A further nine cases were abandoned in due course. That left 11 cases—one case a month—which appeared to the CROTUM to need following up after the return of the form.

Did those 11 cases result in unions being brought before the justices? No. Of those 11 cases, three unions co-operated fully when they received the applicant's letter. They might well have co-operated if they had received the applicant's letter without the CROTUM's intervention. One applicant abandoned the case when the strike ballot decided against a strike; two applicants got as far as the injunctive stage and the court decided—as it must decide in order to set aside a demand for an injunction—that the union had no case to answer.

So there were five little cases left. Did those five cases result in the union coming to trial? No. One writ was served, and action continues—wait and see. One case is awaiting counsel's opinion—wait and see. One action is continuing after counsel's opinion—wait and see. One application is under consideration—a single success to CROTUM. Twelve months of work and £250,000 for a single success.

The CROTUM report said that after counsel's opinion the union withdrew the block voting system, and that action removed the cause of complaint. We are not told the size of the union, and we do not even know whether it is in the TUC. It withdrew the block voting system and good old CROTUM had one success.

10.15 pm

Lord Strathclyde

What has that to do with the clause?

Lord McCarthy

The Government say that CROTUM should not only go on, but that it should be expanded. I am saying that we should compare what CROTUM does—this under-utilised, largely useless Rolls-Royce service—with what happens in regard to unfair dismissals, discrimination cases, race and sex cases, industrial injury and health and safety cases, where there is no legal aid whatever in tribunal hearings. Where there is legal aid, it is severely means-tested; and even with legal aid, which will not give you more than 20 per cent. of your costs if you win, you have to pay it back. If you look at the way the EOC and the race relations commission have complained of constant under-funding, we say that it is irresponsible of the Government to not only continue with CROTUM but to suggest that work should be expanded next year. If we double the area of responsibility, there might be two cases rather than one. That is a waste of public money and we cannot support this clause.

Lord Strathclyde

This is extraordinary. It is obvious that the noble Lords opposite do not like the commissioner, do not want union members to be protected by the commissioner and would rather that CROTIUM were done away with altogether.

The proposal in the clause is to bring within the scope of the commissioner's assistance proceedings that arise out of certain alleged or threatened breaches of union rules as put forward in Chapter 4 of the Green Paper "Removing Barriers To Employment". Over one-third of the inquiries the commissioner has received so far have related to possible breaches of the union rules set out in Paragraph 4.15 of the Green Paper. They are outside her current scope of assistance but these inquiries demonstrate that there may well be a need to bring such matters into scope.

The list in Clause 9(2) of the Bill brings into scope of the commissioner's assistance all the proceedings mentioned in the Green Paper. In addition, it also brings into scope proceedings over breach of rules relating to the removal of a person from union office, which was suggested in responses to the Green Paper.

One thing is clear about the role of the commissioner. The mere presence of the commissioner helps to ensure that unions do not behave unlawfully in so far as they are aware that to do so would risk proceedings being brought by a member of the commissioner's team. Furthermore, the commissioner's annual report states that a further 114 inquiries could have led to applications within the scope of her assistance if the proposals in the Bill had been in force. The commissioner clearly has a role in protecting union members. Noble Lords opposite have spoken about how they wish to help individuals. From this debate it is clear that that is not the case.

Finally, the noble Lord began by asking how much the report costs. I have to tell him that the price of the report is a matter for the commissioner herself. As noble Lords know, she is independent. However, if the noble Lord fears that he might be a little hard up, I will lend him my copy whenever he wants it.

Lord McCarthy

The noble Lord has put forward one non-fact—he does not know the cost of the report —and one pseudo-fact. He said that one-third of the inquiries related to possible breaches of union rules. If they were investigated by CROTUM, and if in her investigations she found as many irregularities as she found in the investigations last year, that would result in one-and-a-half injunctions, both of which she would fail to get.

Clause 9 agreed to.

Clause 10 [Title of proceedings where assistance provided]:

[Amendments Nos. 62 to 64 not moved.]

Clause 10 agreed to.

Clause 11 [Consequential revision or revocation of Codes of Practice]:

[Amendments Nos. 65 to 67 not moved.]

Clause 11 agreed to.

Schedule 1 [Further provisions relating to access to employment]:

Lord Strathclyde moved Amendment No. 68: Page 14, line 34, after ("enquiry,") insert ("or not to accept an offer of employment,").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Strathclyde moved Amendment No. 69: Page 14, line 34, at end insert: ("(cc) in a case where an offer was made but withdrawn, the date when it was withdrawn;").

The noble Lord said: This amendment has already been debated. I beg to move.

On Question, amendment agreed to.

Lord Strathclyde moved Amendment No. 70: Page 14, line 35, leave out ("a case") and insert ("any other case").

On Question, amendment agreed to.

Baroness Carnegy of Lour moved Amendment No. 71: Page 15, line 26, at end insert: ("(5) An industrial tribunal shall decline to make an order or recommendation under sub-paragraph (1) above if it is satisfied that the respondent has a deeply held religious conviction which causes him to object to employing or, as the case may be, providing services for, a member of a trade union. (6) The burden of proof of religious conviction to the satisfaction of the tribunal shall rest upon the respondent.").

The noble Baroness said: I should explain at the outset that a related amendment was discussed in Committee in another place and it was withdrawn. Subsequently, an amendment identical to this one was tabled at Report but it was not called. I have tabled this so far undiscussed amendment because it seems right that the Committee should be aware of and take account of the difficulties that the Bill presents to certain of our citizens who are members of the Exclusive or Plymouth Brethren and who are also employers.

I ask the Minister whether during the time since Committee stage in another place the Government have been able to identify any way in which they can help. The problem has been brought to my attention by two members of the brethren living in the central belt of Scotland, each of whom runs a small business employing eight and 10 people respectively. Their trade is the distribution of copying paper. The difficulty for my advisers and their fellow brethren is that they consider that membership of a trade union, the employment of people who belong to trade unions and membership by an employer of a professional or an employers' association go against the injunctions of the Scriptures and therefore against their particular Christian belief.

I am informed that this belief is founded on a variety of biblical texts—from, for example, St. Paul's second letter to the Corinthians, Chapter 6, which states: Be ye not unequally yoked together with unbelievers"; and from his letter to the Colossians: Servants, obey in all things your masters"; and: Masters, give unto your servants that which is just and equal".

The brethren interpret the Bible as saying that to enable the relationship of an employee and his or her employer to be straightforward and proper, no third party should be involved; no trade union and no employers' association. They consider that they are obliged as Christians to obey that injunction. My advisers have explained to me that they take the employer-employee relationship with the utmost seriousness. They hope that they will be generally regarded as trying hard to be good and caring employers. They believe in this.

They are typical of about 2,500 employer-members of the brethren currently running about 700 businesses in the United Kingdom. Their businesses tend to be small and probably none employs more than 20 people. That is partly because the direct relationship that they desire is easiest in a small business. It is also as the result of the brethren's belief that it is wrong to use complicated modern technology such as computers.

As Members of the Committee will be aware, Clause 1 of the Bill makes it unlawful to refuse a person a job because he does or does not belong to a trade union. Schedule 1, which we are now discussing, provides that a person who considers that he has been unlawfully refused employment because of trade union membership or non-membership can complain to a tribunal. Paragraph 5(1) of the schedule sets out what happens if the tribunal finds the complaint well founded. An order can be laid requiring compensation to be paid or a recommendation can be made that the injustice be obviated or reduced.

The amendment simply adds two conscience paragraphs. First, the tribunal can decline to make an order or a recommendation if it is satisfied that the respondent has a deeply held conviction which causes him to object to employing or providing services to members of a trade union. Secondly, it provides that the burden of proof in satisfying the tribunal of this religious conviction rests with the respondent—that is, the employer.

I am advised that members of the brethren have no criticism of the Bill's purposes in granting new rights to individual employees. Indeed, it strikes me that these rights will be very helpful to employees who are brethren. However, it is felt that the Bill omits rights in respect of employers, especially the minority whose religious conviction leads them to wish to avoid the intrusion of third parties in their employer-employee relationship.

I realise that the amendment poses problems of balance in how the rights of individuals who are employees can be impinged upon by the rights of employers when employees are in the weaker position and employers in the stronger one. After all, we are legislating for everyone and doing so to meet the conditions of the 1990s. At the same time, in this country we try to do our best for our minorities and accommodate their aspirations if we can.

I understand that the members of the Exclusive Brethren accept that as time goes on it is likely to be increasingly difficult for them to live out their particular beliefs and their particular interpretation of the Scriptures in the modern world. Despite the fact that they stand back from voting in elections they respect and pray for Parliament and the government of the day and they respect the laws which Parliament makes. That is why they are concerned to have a conscience clause to release them from the new obligations for employers imposed under the Bill.

I do not underestimate the problems involved in this amendment. I shall listen with interest to what Members of the Committee have to say on the matter —that is, if they have anything to say—and I await to hear whether the Government feel that it can be accepted or whether anything else could be done to help members of the Exclusive Brethren who are employers in their predicament. I beg to move.

Baroness Seear

I should like with some qualification to support the amendment in the sense that I believe that there should be room somewhere for a general conscience clause. I say that because it may not only be the Exclusive Brethren who have such problems. In this country at present we have many people with very differing beliefs which are strongly held. Providing it can be tested that people are genuine and that they are not hiding behind the conscience clause so as to defeat the purposes of the Bill, I think that we should try to find a way to meet this need. The total numbers involved will be very small. The people who genuinely hold these views are not only those in the Exclusive Brethren; indeed, I can think of other similar groups. Therefore, there should be some provision in the Bill to enable people who hold these genuine convictions to gain exemption.

10.30 p.m.

Lord McCarthy

While I have a great deal of sympathy with the case for genuine conscientious objections, I am afraid that I cannot agree that a sufficient case has been made out on the basis of the amendment. It is an argument that we should have a conscience clause based upon a text, not upon a doctrine or a body of belief. The Second Epistle to the Corinthians is the text: Be ye not unequally yoked together with unbelievers: for what fellowship hath righteousness with unrighteousness? and what communion hath light with darkness? That is the text which the followers of the Exclusive Brethren take to mean that they cannot employ a trade unionist. It does not mean that to most Christian groups When Christian groups read the Second Epistle to the Corinthians the way they see it is that St. Paul is talking in the context of marriage outside the faith. He is not talking about trade unions. That is not surprising.

If we were to allow a conscience clause based upon a particular interpretation of a text I am afraid that we should have an infinite variety of conscience clauses. I do not know what we should say if someone came along and claimed on the basis of a similar text that they could not employ people of a certain race or sex. The amendment is altogether too wide.

Secondly, what follows in the Bill from not accepting the amendment? People are not being forced to employ trade unionists. They are being forced, if it can be shown that they refused to engage them on that basis, to compensate them in some way. If the awards of industrial tribunals in the past are anything to go by, they will not be compensated in any particularly generous way. In the unlikely event of any member of a trade union wanting to find employment in one of those places and, solely on the basis of membership of a trade union or any other such ground, not gaining employment, I cannot see why there should not be compensation. On both those grounds, I cannot support the amendment.

Lord Strathclyde

As my noble friend Lady Carnegy said, the amendment is almost identical to one tabled on Report in another place but not selected for discussion there. As has been apparent from the debate, the amendment arises from the anxieties of members of the Plymouth, or Exclusive, Brethren. I know that a number of Members of the Committee may have received representations from members of the Brethren on this matter. The Brethren are clearly good and decent people, whose sincerity and deep concern about the issue cannot be doubted.

That concern has already been raised with my ministerial colleagues by a number of honourable Members in another place and the matter was given very careful consideration. We found it a matter upon which it was not possible to reach a speedy decision. I am deeply impressed by the sincerity of the arguments put forward by my noble friend Lady Carnegy and the noble Baroness, Lady Seear, and, to some extent, by the noble Lord, Lord McCarthy.

Noble Lords on all sides of the Committee know that the Government firmly believe that people should be free to choose for themselves whether or not to belong to a trade union, and that a person's union membership or non-membership should have no bearing on the availability to him of job opportunities. An exemption which cut across that fundamental principle would be difficult to reconcile with the Government's commitment to protecting individual freedom of choice in that area. We have also been advised that there is a real danger that providing an exemption of such a kind would put the Government in breach of the European Convention on Human Rights—something that we wish to avoid.

I hope that my noble friend Lady Carnegy will not take it amiss if I also say that the amendment seems to adopt a slightly strange approach to achieving the kind of exemption that I think is required. It would have the effect that an individual who was refused employment by an employer belonging to the brethren —for instance, because he was a trade union member —could complain to an industrial tribunal. If it found the complaint to be well founded, the tribunal would be obliged to issue a declaration that the employer had acted unlawfully. However, that would be the end of the proceedings. The tribunal would have no power to award compensation to the applicant or make any recommendation concerning the employer's behaviour. The employer would have acted unlawfully but there would be no remedy for the individual who had suffered as a result of the unlawful act.

I have to say to my noble friend that in our view either there should be an express exemption for employers who act on the basis of a deeply held religious conviction or there should not be an exemption. We can see no justification for depriving the tribunal of its power to grant remedies for unlawful conduct if it thinks a remedy is appropriate.

As I have indicated, the principle behind the amendment has caused us considerable difficulty. The new right contained in the Bill not to be refused employment on grounds of union membership or non-membership is, after all, a natural extension of the existing safeguards which protect union members and non-members alike once they are in employment. The fact is that there is no religious exemption for employers in existing legislation conferring on employees protection against dismissal on the grounds of membership or non-membership of a union. This means that an individual working for a Plymouth Brethren employer who chooses to become a union member at any time after he has taken up that employment could not lawfully be dismissed on the ground of his union membership.

We have found it very difficult to see what justification there could be for providing an exemption of a type which has never been available to employers under the law relating to dismissals. Nor do we believe it would be right to amend the existing law so that Plymouth Brethren employers could with impunity dismiss employees simply because they had exercised their freedom as union members.

This amendment, like those tabled in another place, raises very difficult issues. As I said earlier, we have considered these issues carefully over a period of time. We have not, however, been persuaded that it would be right to create the exemption that the Plymouth Brethren are seeking. I hope that what I have said to my noble friend will make her feel that we have explored every avenue and that she will be able to withdraw the amendment.

Baroness Carnegy of Lour

I thank the noble Baroness, Lady Seear, and the noble Lord, Lord McCarthy, for their contributions to this little debate. The noble Baroness, as I expected, was very understanding of the problems. I am sure that having listened to the government reply she understands the difficulties in dealing with it. I thank the noble Lord, Lord McCarthy, too, for putting the problem as he sees it from the viewpoint of the workers. We must do that because they are involved in this.

In reply to one point made by the noble Lord, Lord McCarthy, I do not believe that the brethren base their belief simply on a text or a series of texts. I have read about them, and Mr Bryan Wilson, Fellow of All Souls, explains that what is called the principle of separation runs right through their belief. There is an organised belief within this, albeit one which, as he says, is somewhat different from the position of most Christian groups.

I thank my noble friend on the Front Bench for a careful and understanding response to the problem. I appreciate very much the attention and care that the Goverment have given to it. It is extremely difficult and I am sorry if it is not possible to meet the situation with the amendment, given the various implications for workers in small and large firms. I am sure that the brethren will appreciate the care that the Committee has taken about the problem although they will be sorry that it is not possible to do anything. At this time all I can do is to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

Lord Strathclyde moved Amendment No. 73: Page 17, line 15, leave out sub-paragraph (5).

The noble Lord said: This is an entirely technical amendment which should be wholly non-controversial. The amendment removes from the Bill a provision which was, I regret to say, potentially ambiguous. Nothing has been lost and the Bill will be clearer as a result. I beg to move.

On Question, amendment agreed to.

Lord Strathclyde moved Amendments Nos. 74 to 76: Page 17, line 21, after ("House of Commons") insert ("or House of Lords"). Page 17, line 32, at end insert: ("(4) In this paragraph "relevant member of the House of Lords staff" means a member of the House of Lords staff appointed by the Clerk of the Parliaments or the Gentleman Usher of the Black Rod. (5) For the purposes of the provisions of this Act relating to access to employment the holder for the time being of the office of Clerk of the Parliaments or Gentleman Usher of the Black Rod is the employer in relation to employment to which a person is appointed by the holder of that office; and anything done, before or after he took office, in relation to a person seeking such employment shall be treated as done by him. (6) If the House of Lords resolves at any time that any provision of sub-paragraphs (4) and (5) should be amended in its application to any employment as a member of the staff of that House, Her Majesty may by Order in Council amend that provision accordingly.

Any such Order—

1. (a) may contain such incidental, supplementary or transitional provisions as appear to Her Majesty to be appropriate, and
2. (b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

Page 17, line 36, after ("House of Commons") insert ("or House of Lords").

The noble Lord said: I beg to move Amendments Nos. 74 to 76 en bloc. These are technical amendments which I believe give effect to the wishes of this Chamber. These amendments have been prepared in consultation with the authorities of this Chamber and I commend them to the Committee.

On Question, amendments agreed to.

Remaining clauses agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Consequential amendments]:

[Amendments Nos. 77 to 81 not moved.]

Schedule 2 agreed to.

In the Title:

Lord Strathclyde moved Amendment No. 82: Line 3, after ("action") insert ("and ballots").

The noble Lord said: This amendment is entirely consequential. I beg to move.

On Question, amendment agreed to.

Title, as amended, agreed to.

House resumed: Bill reported with amendments.

House adjourned at sixteen minutes before eleven o'clock.